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    In the Matter of the Accounting of Elizabeth P. De G. James, as Ancillary Executrix under the Will of Amadee De G. James, Deceased, Appellant. Elizabeth B. Von der Decken et al., Appellants; Pauline A. de la Mettrie et al., Respondents.
    (Submitted June 18, 1928;
    decided June 21, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 248 N. Y. 1.)


source: Caselaw Access Project

license: Public Domain

text:
    Rockowitz Corset and Brassiere Corporation, Appellant, v. Madame X Company, Inc., et al., Respondents.
    (Submitted June 18, 1928;
    decided June 21, 1928.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 248 N. Y. 272.)


text:
    In the Matter of Mary H. Tompkins et al., Appellants, against Henry Bruckner, as President of the Borough of The Bronx, New York City, Respondent.
    (Submitted June 18, 1928;
    decided June 21, 1928.)
   Motion to amend remittitur or for a reargument denied, with ten dollars costs and necessary printing disbursements. (See 248 N. Y. 594.)


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    Benjamin Gratz et al., Doing Business under the Firm Name of Warren, Jones & Gratz, Appellants and Respondents, v. M. M. Graves Company, Inc., Respondent and Appellant.

      Appeal — appeal to Court of Appeals from order of modification by Appellate Division dismissed.

      Gratz v. Graves Co., Inc., 222 App. Div. 697, appeal dismissed.
    (Submitted June 18, 1928;
    decided June 21, 1928.)
    Motion to dismiss an appeal by defendant from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 25, 1927, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury.
    The motion was made upon the ground that the appeal was improperly taken from the order of modification.

      Thomas F. Magner and Daniel G. Connolly for motion.

      John J. Kuhn and Walter B. Kuhn opposed.
   Motion granted and appeal dismissed, without costs.


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    Patrick W. Casey, Appellant, v. Frank A. Shane et al., Individually and as Copartners under the Name of Shane Construction Company, Respondents.

      Negligence — workmen’s compensation — action by employee of subcontractor against general contractors to recover for injuries alleged to have been occasioned through their negligence — defense that both defendants and subcontractor had secured payment of compensation, properly stricken out.

      Casey v. Shane, 221 App. Div. 660, reversed.
    (Submitted June 21, 1928;
    decided July 19, 1928.)
    Appeal from a judgment, entered December 19, 1927, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an order of the court at a Trial Term granting plaintiff’s motion to strike out the second defense in the answer and denying defendants’ motion for a dismissal of the complaint, denied the plaintiff’s and granted the defendants’ motion. The action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants in the erection of a building whereon plaintiff was employed. By the second separate defense the defendants allege that plaintiff at the time of receiving the injury complained of was in the employ of a subcontractor of defendants and that both defendants and the subcontractor had secured compensation for their employees as required by the Workmen’s Compensation Law.

      F. Ferris Hewitt for appellant.

      Harry E. Wareham for respondents.
   Judgment of Appellate Division reversed and order of Special Term affirmed, with costs in the Appellate Division and in this court on the authority of Clark v. Monarch Engineering Co. (248 N. Y. 107).

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


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    The People of the State of New York, Respondent, v. Anthony Russo, Appellant.

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

    (Argued June 6, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Kings County Court rendered March 5, 1928, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Albert Conway, Peter J. Brancato and Denis M. Hurley for appellant.

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

Concur: Cardozo, Ch. J., Pound, Crane, Kellogg and O’Brien, JJ. Andrews and Lehman, JJ., dissent upon the ground that the verdict is against the weight of evidence.


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    Ralph Sorrentino, an Infant, by Caroline Sorrentino, His Guardian ad Litem, Appellant, v. Frank Sorrentino, Respondent.

      Negligence ■— parent and child — action for personal injuries resulting from negligence not maintainable against parent by unemancipated minor child.

      Sorrentino v. Sorrentino, 222 App. Div. 835, affirmed.
    (Submitted June 7, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 19, 1928, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, a boy eleven years of age, was injured, as alleged, through the negligence of defendant, his father, in driving an automobile in which they were riding in such a careless manner that the car was overturned. The complaint was dismissed on the ground that a minor child living with his father cannot maintain an action to recover from the father damages for an unintentional injury.

      Andrew Byrne and Julius J. Gans for appellant.

      John T. Loughran and Robert H. Charlton for respondent.
   Judgment affirmed, with costs. Held, that an action for personal injuries resulting from negligence may not be maintained against a parent by an unemancipated minor child; no opinion.

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


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    Bessie B. Green et al., as Executors of William Green, Deceased, Appellants, v. Title Guarantee and Trust Company, Respondent.

      Bonds — trustees — negligence — action by bondholder against trustee to recover for alleged negligence in failing to include certain properties in mortgage and in so drafting instrument that it was subsequently declared void as to creditors.

      Green v. Title Guarantee & Trust Co., 223 App. Div. 12, affirmed.
    (Argued June 8, 1928;
    decided July 19, 1928.)
    Appeal from a judgment, entered March 28, 1928, 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 the alleged negligence of the defendant in failing to include in an indenture of mortgage on which corporate bonds were issued certain properties and in so drafting the instrument that the mortgage was subsequently declared void as to creditors, so that bonds so issued and held by plaintiff were not entitled to priority over other claims against the issuing corporation.

      Selden Bacon and Saul S. Myers for appellants.

      Graham Sumner, Robert H. O’Brien and Ralph C. Taylor for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    In the Matter of the Transfer Tax upon the Estate of Luther G. Corwith, Deceased. Lizzie W. Corwith, Executrix, Appellant; The State Tax Commission, Respondent.

      Tax —• transfer tax — appraisal of shares of stock forming part of estate ■— attachment of good will value

      Matter of Corwith, 222 App. Div. 816, affirmed.
    (Submitted June 8, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 6, 1928, which unanimously affirmed an order of the Nassau County Surrogate’s Court assessing a transfer tax upon the estate of Luther G. Corwith, deceased. Objection was raised to the attachment of a good will value in appraising shares of stock forming part of the estate of decedent.

      Joseph Epstein for appellant.

      Percy D. Stoddart and Harry M. Peyser for respondent.
   Order affirmed, with costs; no opinion.

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


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

      Husband and wife — divorce — complaint in action by wife for separation dismissed and judgment directed upon husband’s counterclaim for absolute divorce.

      Dornbusch v. Dornbusch, 223 App. Div. 746, affirmed.
    (Argued June 11, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 8, 1928, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term directing a dismissal of the complaint on the merits in an action for separation and directing judgment for defendant on his counterclaim for absolute divorce.

      I. Maurice Wormser and Benjamin Frindel for appellant.

      Lyman A. Spalding, Arthur McCausland and Frederick Mellor for respondent.
   Judgment affirmed, without costs; no opinion.

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


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    Long Island Coach Company, Respondent, v. Hartford Accident and Indemnity Company, Appellant.

      Insurance (indemnity) — Highway Law — action to recover amount paid upon judgments for personal injuries ■— defense that other actions were pending against plaintiff and that amount due on policy must be apportioned ratably among judgment creditors.

      Long Island Coach Co., Inc., v. Hartford A. & I. Co., 223 App. Div. 331, affirmed.
    (Argued June 11, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 27, 1928, in favor of plaintiff upon the submission of a controversy under sections 546-548 of the Civil Practice Act. The action was to recover upon a policy of insurance providing: “ The Insurers agree to indemnify the Assured against loss arising from the liability imposed by law upon the Assured for damages on account of death or bodily injuries * * *, resulting from or caused by the operation, maintenance, use or the defective construction of the motor vehicles described in the schedule annexed hereto, * * The defendant contended that under the policy and section 282-b of the Highway Law, its liability on all judgments resulting from one “ transaction ” was limited to $5,000 to be apportioned ratably among the judgment creditors according to the amounts of their respective judgments, and that plaintiff had had an accident in which many persons were injured and that the amount sought to be recovered was paid by plaintiff in satisfaction of but two judgments. The Appellate Division held that the provision of the Highway Law for apportionment ratably among judgment creditors is applicable only when the insured is insolvent.

      John P. Carson for appellant.

      Reginald V. Spell for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Mildred Kantor, Appellant and Respondent, v. Aristo Hosiery Co., Inc., Respondent and Appellant.

      Contract — sale — foreign exchange — action to recover for goods sold and delivered, purchase price payable in English currency — rate of exchange at time of breach of contract to be applied in translating damages from pounds to dollars.

      Kantor v. Aristo Hosiery Co., Inc., 222 App. Div. 502, affirmed.
    (Argued June 12, 1928;
    decided July 19, 1928.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 15, 1928, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The action was to recover for goods alleged to have been sold and delivered to defendant by plaintiff’s assignor, an English firm, payment for which was to be made in English currency. The jury found a verdict for plaintiff for an equivalent in American currency, based upon the prevailing rate of exchange at the time of the trial. The Appellate Division held that the rate of exchange at the time of the breach of contract was the measure to be applied in translating the amount due in pounds to dollars.

      Eli S. Wolbarst for plaintiff, appellant and respondent.

      Henry A. Blumenthal and Benjamin H. Whitestone for defendant, respondent and appellant.

      John A. Garver and Carl A. Mead for National City Bank of New York, amicus curiæ.

      Morris Hilquit for Boris N. Sokoloff, amicus curiæ.

      Boris M. Komar for Dollar Claims Co., Inc., amicus curiæ.

   Judgment affirmed, without costs; no opinion.

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


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    Charles J. Rogers, Respondent, v. Alexander W. Thomson et al., Copartners under the Firm Name of Thomson & McKinnon, Appellants.

      Conversion — stockbrokers — action to recover value of stocks purchased and carried on margin by broker upon tender by customer of balance due.

      Rogers v. Thomson, 222 App. Div. 805, affirmed.
    (Argued June 12, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 1, 1928, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was in conversion to recover the value of certain stock purchased and carried on margin by defendants, stockbrokers, for plaintiff, their customer. It appeared that thereafter defendants sold the branch of their business at the city where plaintiff resided and with his consent transferred his account to the purchaser. They undertook, however, to retain plaintiff’s shares as security for the general indebtedness of the new brokers and refused to deliver them to him upon tender by him of the balance due on his account.

      Outerbridge Horsey for appellants.

      Edwin N. Moore for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    The People of the State of New York, Respondent, v. Irving Freedman, Appellant.

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

      People v. Freedman, 223 App. Div. 810, affirmed.
    (Argued June 12, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 13, 1928, which affirmed a judgment of the Monroe County Court rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree.

      Robert Averill and Charles A. Oberwager for appellant.

      William F. Love, District Attorney (Charles J. Mondo of counsel), for respondent.
   Judgment affirmed; no opinion.

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


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    The People of the State of New York, Respondent, v. Michael J. Enright, Appellant.

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

      People v. Enright, 221 App. Div. 26, affirmed.
    (Argued June 12, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 7, 1927, which affirmed a judgment of the Steuben County Court rendered upon a verdict convicting the defendant of the crime of manslaughter in the first degree. .

      Herbert A. Heminway and Thomas F. Rogers for appellant.

      Guy W. Cheney, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


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    Susquehanna Steamship Company, Inc., Respondent, v. A. O. Andersen & Company, Inc., Appellant.

      Contract — ships and shipping — action to recover hire of steamship under contract whereby defendant agreed to make payment in consideration of assignment of charter party.

      Susquehanna S. S. Co., Inc., v. Andersen & Co., Inc., 220 App. Div. 777, affirmed.
    (Argued June 12, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 24, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon an alleged contract whereby defendant in consideration of the assignment of the charter party of a steamship promised as an original obligor to make payments of the hire. (See 239 N. Y. 285.)

      John A. McManus and Kenneth B. Thompson for appellant.

      Alvin C. Cass for respondent,

      Edward H. Wilson and John J. Kean for Guissippina Parascandola, as administratrix with the will annexed of the estate of Joseph Auditore, deceased, amicus curiæ.

   Judgment affirmed, with costs; no opinion.

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


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    John J. Hogan, Respondent, v. Star Company, Appellant.

      Libel —• complaint dismissed on ground article complained of was not libelous.

      Hogan v. Star Co., 222 App. Div. 766, reversed.
    (Submitted June 13, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 4,1928, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for an alleged libel. Defendant published in its newspaper the following: “ I guess they [the police] just had to arrest somebody, and' they couldn’t catch us, so what did they do but rope in a poor simp with a pretty face by the name of Helen Quigley, that had never done anything worse than dance in a burlesque show. Some Russian by the name of Kovaleski gave them a bum steer to square a private grudge, and the papers printed her picture and said ' Bobbed-Bandit Caught at Last.’ Ed and I thought that was fine, for we figured they couldn’t convict her, and while they were finding out she wasn’t the right one it would keep suspicion off of us. But it didn’t break that way. Next day the cops went and got this Hogan, who was the manager of the Roulston grocery store, the first man I stuck up, and they showed him Helen Quigley, and he said: ‘ Sure, that’s the girl that robbed me. I’d know her anywhere.’ And didn’t they go and get three more of the clerks who swore the same thing. I don’t think for a minute they were trying to crook her. People say she does look a little bit like me, though I can’t see it, and she is about my size. And I guess they were so scared at the time they couldn’t remember very well — so busy, maybe, looking at the automatic that they didn’t pay much attention to my face. * * * Well, anyway, there was Helen Quigley, in jail, identified as me, and sure now to be convicted on Plogan’s word, backed up by the others.”

      William A. De Ford for appellant.

      Helen P. McCormick for respondent.
   Judgment of Appellate Division and that of Trial Term reversed and complaint dismissed, with costs in all courts, on the ground that the article complained of was not libelous.

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


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    Pauchogue Land Corporation, Appellant, v. Long Island State Park Commission et al., Respondents.

      Eminent domain — real property — State — lawful appropriation of private property for park purposes.

      Pauchogue Land Corp. v. Long Island State Park Comm., 223 App. Div. 733, affirmed.
    (Argued June 13, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 5, 1928, affirming' a judgment in favor of plaintiff for nominal damages, entered upon a verdict. The action was to enjoin waste and continuing trespass by the defendants in seizing by alleged illegal appropriation proceedings the plaintiff’s property for park purposes.

      Martin A. Schenck, Joseph S. Auerbach, William H. Robbins and Murray C. Bernays for appellant.

      Walter H. Pollak, Carl S. Stern, G. Frank Dougherty, Ruth I. Wilson and George D. Carrington for respondents.
   Judgment affirmed, with costs, upon the ground that the property in suit has been lawfully appropriated. (243 N. Y. 15.)

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


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    Charles St. John, Respondent, v. Fulton Market Realty Corporation, Appellant, Impleaded with Others.

      Contract — brokers — commissions — corporations — action to recover on alleged contract of employment to obtain purchaser for real property — authority of president of corporation to employ broker to sell property not dependent upon existence of authority on his part to enter into contract of sale.

      St. John v. Fulton Market Realty Corp., 222 App. Div. 826, affirmed.
    (Argued June 14, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 24, 1928, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon an alleged contract whereby defendant, through its president, employed plaintiff as a broker to obtain a purchaser for certain real property. Plaintiff claimed that he produced a purchaser ready, able and willing to enter into a contract upon the terms given him by defendant’s president. The defendant contended that its president had no authority to make the contract.

      John J. Crawford and Almon C. Kellogg for appellant.

      Milton Hertz and I. Maurice Wormser for respondent.
   Judgment affirmed, with costs. Held, that the apparent authority of the president of the corporation to employ a broker to sell real property is not dependent upon the existence of authority on his part to enter into a binding contract for the sale thereof.

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


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    Nelson Macy, Individually and as Executor of Francis H. Macy, Deceased, Respondent, v. Susan A. Burchill et al., Individually and as Executors of Katherine J. Macy, Deceased, et al., Appellants, Impleaded with Others.

      Will — trust — action to impress a trust upon property and for construction of a will.

      Macy v. Burchill, 223 App. Div. 702, affirmed.
    (Argued June 14, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 7, 1928, unanimously affirming an interlocutory judgment in favor of the plaintiff, declaring a trust ex maleficio in favor of the plaintiff’s testator and impressing this trust upon the property devised and bequeathed by the fourth paragraph of the will of his mother, Katherine J. Macy, and directing that the defendants Susan A. Burchill and Clarence E. Thornall, as trustees ex maleficio, account to the plaintiff for that property and construing the fifth paragraph of Katherine J. Macy’s will in favor of her son, the plaintiff’s testator, and directing the Commercial Trust Company of New Jersey as trustee to account to the plaintiff for the property referred to in that paragraph of her will.

      George W. Alger and Matthew B. Sentner for executors, appellants.

      C. Parker Lattin for Celestine A. Drew et al., appellants.

      John Mc Kim Minton, Jr., and Franklin H. Mills, for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    The People of the State of New York, Respondent, v. Martin L. Miller, Appellant.

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

    (Argued June 14, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Kings County Court, rendered April 11, 1928, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Rufus L. Perry and Raymond Riley for appellant.

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

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


text:
    Sydney Bevin et al., Appellants, v. Henry Steers Sand and Gravel Co., Inc., Defendant, and Henry Steers, Inc., Respondent. Same v. Same.

      Landlord and tenant — lease — cancellation —• action to recover renl — defense of cancellation.

      Bevin v. Steers Sand & Gravel Co., Inc., 223 App. Div. 730, affirmed.
    (Argued June 14, 1928;
    decided July 19, 1928.)
    Appeal in each of the above-entitled actions from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 15, 1928, reversing upon the law and the facts a judgment in favor of plaintiffs entered upon a verdict directed by the court and granting a new trial. The actions were to recover successive installments of rent due under a ' lease of land situated at Eaton’s Neck in the town of Huntington. The defense was that defendants had the right to cancel the lease and had canceled it before the installments became due.

      Sidney W. Davidson and Leslie D. Dawson for appellants.

      Charles L. Woody for respondent.
   In each action order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts; no opinion.

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


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    The People of the State of New York, Respondent, v. Jack Shapiro, Appellant.

      Crimes — disorderly conduct — judgment of conviction affirmed.

    (Submitted June 15, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Court of Special Sessions of the City of New York, entered February 25, 1928, which affirmed a judgment of a Magistrate’s Court convicting the defendant of disorderly conduct.

      Jonah J. Goldstein, David Goldstein and S. S. Goldsmith for appellant.

      Joah H. Banton, District Attorney (John C. McDermott of counsel), for respondent.
   Judgment affirmed; no opinion.

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


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    Samuel Lowett, Respondent, v. Alexander Bursch, Appellant.

      Real property — contract — action to establish interest in real property.

      Lowett v. Bursch, 223 App. Div. 791, affirmed.
    (Submitted June 15, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 30, 1928, affirming a judgment in favoi of plaintiff entered upon a decision of the court on trial at Special Térm. The complaint alleged that the plaintiff and the defendant entered into an agreement for the purchase at public auction of certain real property located on Bay Ridge avenue, in the borough of Brooklyn; that such property was purchased at public auction and that at the sale it was struck down to the plaintiff, who signed the terms of sale; that at the time of taking title it was agreed between the plaintiff and the defendant that the plaintiff assign his bid to the defendant in whose name title was to be taken, upon an understanding that both plaintiff and the defendant would each have an undivided one-half interest in the premises and in the net rents and profits thereof; that without any further consideration, said bid was assigned to the defendant who took title to the said property in his name, and that thereafter defendant repudiated the agreement and refused to recognize plaintiff’s interest in the premises. The trial court adjudged that the plaintiff was the owner of a one-half interest' in the property and directed that upon a sale of the property the proceeds be divided between plaintiff and defendant.

      William Godnick and Irving C. Maltz for appellant.

      Sidney A. Clarkson, Albert A. Hovell and H. W. McChesney for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Dorothy Bird, Respondent, v. William Smith, Appellant.

      Negligence — motor vehicles — action to recover for personal injuries resulting from collision of automobiles.

      Bird v. Smith, 222 App. Div. 793, affirmed.
    (Argued June 15, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 16, 1928, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, while riding as a passenger in an automobile, was injured as the result of a collision between the car in which she was riding and an automobile driven by defendant.

      George B. Fearon and John E. Gates for appellant.

      Jerome K. Cheney for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    John Connell, an Infant, by Arthur J. Connell, His Guardian ad Litem, Respondent, v. Anna Berland et al., Appellants.

      Negligence — motor vehicles ■— child sitting on sidewalk struck by automobile left on opposite side of street, and which started, crossed street and mounted curb — defense that car was started by other children.

      Connell v. Berland, 223 App. Div. 234, affirmed.
    (Argued June 15, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 6, 1928, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained through the negligence of defendant. The complaint alleged that plaintiff while sitting upon the sidewalk against a building was struck by an automobile owned by defendant Anna Berland and operated by defendant Charles L. Berland which he had left with the engine running on the opposite side of the street and which started, crossed the street and mounted the curb: Defendants contended that the automobile was left with the engine stopped, with the gears in neutral, with the switch turned off, with the ignition locked, though the key was not removed from the lock, with the emergency brake set and with the wheels turned to the curb, and that while the driver was in a certain store the car was started by certain children and that he was not guilty of any negligence.

      F. A. W. Ireland for appellants.

      Andrew Wilson, Jr., and John R. Lazenby for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Benjamin Bamonte, Respondent, v. Ocean Beach-Fire Island Company et al., Appellants, Impleaded with Another.

      Real property ■— title — tax sales — action to determine title to real property — vahdity of tax sales.

      Bamonte v. Ocean Beach-Fire Island Co., 222 App. Div. 676, affirmed.
    (Argued June 15, 1928;
    decided July 19, 1928.)
    Appeal from a judgment, entered December 28, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to compel determination of a claim to real property consisting of certain beach lands in the town of Islip. Both plaintiff and defendant Ocean Beach-Fire Island Company claimed through county treasurer’s deeds upon tax sales. The Appellate Division held that the publication of the notices of sale for the taxes levied in 1918 and 1919 was not in compliance with the statute applicable, and that, for such reason, the two deeds made by the county treasurer of Suffolk county to the defendant Ocean Beach-Fire Island Company, dated December 1, 1923, and January 31, 1924, are void and of no effect.

      Walter Fairchild for appellants.

      William C. Chanler for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Sidney Glassman, Appellant.

      Crimes — unlawfully marking goods — judgment of conviction affirmed.

      People v. Glassman, 223 App. Div. 830, affirmed.
    (Submitted June 15, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 20, 1928, which affirmed a judgment of the Court of Special Sessions of the City of New York convicting the defendant of unlawfully marking an article as made of platinum in violation of section 445 of the Penal Law.

      K. Henry Rosenberg for appellant.

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

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


text:
    Grace W. R. Clark et al., Respondents, v. The GreenWood Cemetery, Appellant.

      Cemeteries — action to compel cemetery corporation to permit removal of bodies therefrom.

      Clark v. Green-Wood Cemetery, 223 App. Div. 789, affirmed.
    (Argued June 18, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 10, 1928, affirming a judgment in favor of plaintiffs entered upon an order of Special Term granting a motion by plaintiffs for judgment on the pleadings. The action was to compel the defendant to permit the removal from Green-Wood Cemetery of the remains of certain deceased relatives of the plaintiffs. The defense was that the deed of the cemetery plot contained on its face the rule “ that no disinterment shall be allowed without permission being obtained at the office of the corporation ” and that an application for such permission had been denied.

      William H. Hayes and Henry H. Anderson for appellant.

      Edward H. Wilson and Appleton L. Clark for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jobson-Gifford Company, Respondent, v. Patrick McGovern, Appellant.

      Contract — action by subcontractor to recover balance alleged to be due and damages for delay.

      Jobson-Gifford Co. v. McGovern, 222 App. Div. 735, affirmed.
    (Argued June 18, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 20, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover a balance alleged to be due upon a subcontract let by defendant to plaintiff for a portion of the work of construction of a pipe fine as part of the water supply system of Jersey City and for damages alleged to have been caused by delays, defaults and breaches of contract by the defendant.

      Thomas F. Conway, Joseph A. Kellogg, Thomas E. O’Brien and William F. Pritchard for appellant.

      John C. Wait and Howard G. Wilson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Isaac Meyers, Respondent, v. The Anwal Realty Corporation, Appellant.

      Contract — brokers — commissions — action to recover broker’s commissions on sale of real property — defense that plaintiff was not a broker and had not been employed as such.

      Meyers v. Anwal Realty Corp., 222 App. Div. 65, affirmed.
    (Argued June 18, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 13, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover broker’s commissions upon a sale of real property-belonging to defendant. The defense was that plaintiff was not a real estate broker and that there was no employment of him by defendant as such.

      H. M. Schaap for appellant.

      Samuel Meyers and Morse S. Hirsch for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Simon Kirsch, Appellant, v. Herbert Lubin, Respondent.

      Limitation of actions — action accrued in Canada against defendant, a then resident —• removal of resident to this State — New York Statute of Limitations applicable.

      Kirsch v. Lubin, 223 App. Div. 826, affirmed.
    (Argued June 18, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 13, 1928, 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 on the ground that the cause of action was barred by the Statute of Limitations. The cause of action on contract, not under seal, accrued in 1914 in favor of plaintiff’s assignor, a Quebec corporation, against defendant, a then resident of Canada. In 1916 defendant moved t'p this State and has since resided here. It was alleged that the action would not be barred in Quebec. The question was whether the New York or Quebec statute applied.

      Otto A. Gillig and Ralph Stout for appellant.

      I. Maurice Wormser and Nathan Burkan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Thomas Sexton, Respondent, v. Equitable Life Assurance Society of the United States, Appellant.

      Insurance (Ufe) — action on policies — defenses of false representations, release and accord and satisfaction — summary judgment should not be granted where questions of fact are presented.

      Sexton v. Equitable Life Assurance Society, 223 App. Div. 738, reversed.
    (Argued June 19, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 3, 1928, affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for summary judgment. The action was to recover upon two policies of Ufe insurance. The answer set up affirmative defenses of false representations, release and accord and satisfaction. The motion was granted on the ground that the defenses were clearly insufficient in view of the “ incontestable ” clause of the pohcies.

      Peter C. Mann, Charles W. Pierson and James D. Ewing for appellant.

      John J. Finn for respondent.
   Judgment of Appellate Division and that of Special Term reversed, and motion for summary judgment denied, with costs in all courts, on the ground that there are questions of fact presented by the record which ought not to be determined on a motion for summary judgment.

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


text:
    Henry D. Bulkley, Respondent, v. Rouken Glen, Inc., Appellant.

      Real -property — contract — sale — specific performance — action to compel specific performance of contract for sale of real property or for damages.

      Bulkley v. Rouken Glen, Inc., 222 App. Div. 570, affirmed.
    (Argued June 19, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 8, 1928, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to compel specific performance of a contract of sale by defendant to plaintiff of certain real property or for damages, it appearing that defendant could not convey an unincumbered title.

      Michael D. Reilly for appellant.

      Harold B. Elger for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Fred M. Semke et al., Appellants, against William E. Tydeman et al., Constituting the Board of Fire Commissioners of the Uniondale Fire District, Town of Hempstead, et al., Respondents.

      Firemen — mandamus — motion for peremptory order of mandamus to compel reinstatement as members of volunteer fire company, denied.

      Matter of Semke v. Tydeman, 217 App. Div. 775, affirmed.
    (Argued June 19, 1928;
    decided July 19, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the reinstatement of the petitioners as members of the Uniondale Fire Department and denied the motion.

      Milton Pinkus and Thomas J. Cuff for appellants.

      Thomas R. Fay, George A. Gibson and Fred Ingraham, Jr., for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Minna M. Wilbur, Appellant, v. Stuyvesant Insurance Company, Respondent.

      Insurance (fire) — cancellation — action to recover upon policy of fire insurance — defense of cancellation prior to fire.

      Wilbur v. Stuyvesant Ins. Co., 222 App. Div. 714, affirmed.
    (Argued June 19, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 11, 1927, unanimously affirming a judgment in favor of defendant entered upon a verdict. The action was to recover upon a policy of fire insurance. The defense was that the policy had been canceled prior to the fire.

      J. B. McGowan and William Seidel for appellant.

      Edward L. Robertson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Pillsbury Flour Mills Company, Respondent, v. Erie Railroad Company, Appellant.

      Carriers — railroads — action to recover for merchandise shipped as freight and destroyed by fire after arrival at destination — defense that railroad was liable only as warehouseman.

      Pillsbury Flour Mills Co. v. Erie R. R. Co., 220 App. Div. 826, affirmed.
    (Argued June 19, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 1, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term, without a jury, upon stipulated facts. The action was to recover for flour destroyed by fire in defendant’s cars at Weehawken, N. J., the night of November 3, 1921. The flour was shipped from Minneapolis, and the cars had on the evening of the fire been placed on defendant’s tracks alongside defendant’s dock D for unloading and delivery by defendant to plaintiff the following day in warehouse space in dock D, leased by plaintiff. The fire was of unknown origin, and happened without fault of either party. The defenses were the provisions of the bills of lading changing the insurer’s liability of defendant as carrier to that of warehouseman forty-eight hours after arrival and notice thereof; also certain provisions of the lease to plaintiff of the warehouse space in dock D whereby plaintiff assumed risk of fire to property on or about the leased premises arising out of the condition, use or location thereof or the operation, maintenance or existence of defendant’s railroad or its appurtenances.

      William C. Cannon, Theodore Kiendl and George M. Skinner for appellant.

      Ray Rood Allen, Everett Masten and Eugene Underwood, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

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


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

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

      People v. Battaglia, 224 App. Div. 692, affirmed.
    (Argued June 20, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 2, 1928, which affirmed a judgment of the Erie County Court rendered upon a verdict convicting the defendant of the crime of manslaughter in the first degree.

      Bernard Swartz and Ernest W. McIntyre for appellant.

      Guy B. Moore, District Attorney (William L. Marcy, Jr., of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Nassau National Bank of Brooklyn, Respondent, v. John A. Paul et al., Appellants.

      Debtor and creditoi--fraudulent conveyance — real property — action to set aside conveyance of real property as in fraud of creditors.

      Nassau National Bank v. Paul, 223 App. Div. 733, affirmed.
    (Submitted June 20, 1928;
    decided July 19, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 23, 1928, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to set aside an alleged fraudulent conveyance of real property. The complaint alleged that the plaintiff recovered a judgment against the defendant Paul on the 21st day of March, 1925; that an execution against him was thereafter returned wholly unsatisfied; that at the time the cause of action upon which the judgment was recovered accrued, the defendant Paul was the owner in fee simple of premises No. 936 Eighty-fourth street, Brooklyn; that on the 4th day of April, 1925, the defendant Paul conveyed these premises to the defendant Farrell, thereby leaving himself insolvent, and that the conveyance was fraudulently made without any consideration.

      Samuel R. Wachtell for appellants.

      Lloyd B. Kanter and Oscar A. Lewis for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Village of Great Neck Estates, Respondent, v. Bemak & Lehman, Inc., et al., Appellants, Impleaded with Another.

      Real property — municipal corporations ■— villages — zoning law —■ action to enjoin use of real property for business purposes in violation of zoning ordinance.

      Village of Great Neck Estates v. Bemak & Lehman, Inc., 223 App. Div. 853, affirmed.
    (Argued June 20, 1928;
    decided July 19, 1928.)
    Appeal from a judgment, entered May 9, 1928, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to restrain the defendants from using certain premises situated in a residence “ C ” district in the village of Great Neck Estates and owned by the defendants Isaac J. and Josephine K. Bemak, for business purposes in violation of the zoning ordinance of the village.

      Joseph Steven Frank and Erastus J. Parsons for appellants.

      Alfred C. B. McNevin and Edward S. Bentley for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The City of New York, Appellant, v. Nicholas Vassiliou, Respondent.

      Municipal corporations — New York city — contract — action by city to recover for failure to execute contract on bid for concession — counterclaim for amount of deposit.

      City of New York v. Vassiliou, 223 App. Div. 753, affirmed.
    (Argued June 20, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 19, 1928, unanimously affirming a judgment in favor of defendant entered upon a verdict. The action was to recover damages sustained by plaintiff by reason of the failure of defendant to execute an agreement in accordance with his bid for the privilege of conducting a fruit and flower stand at the Manhattan Terminal of the Staten Island Ferry. The defendant counterclaimed for the amount of his deposit to secure the bid. The trial court charged the jury that the city had failed in its obligation to present to the defendant an executed lease or agreement to secure to him, prior to the commencement of the term, the enjoyment of the privilege, and left it to the jury to determine whether defendant had waived that requirement.

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

      Emanuel Friedman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Philip Komisar, Respondent, v. Louis Hochberg, Defendant, and Richmond Light and Railroad Company, Appellant. William Cohen, Respondent, v. Louis Hochberg, Defendant, and Richmond Light and Railroad Company, Appellant. (Two actions.) Ruth Cohen, Respondent, v. Louis Hochberg, Defendant, and Richmond Light and Railroad Company, Appellant. Philip Meyer, as Administrator of the Estate of Jennie Meyer, Deceased, Respondent, v. Louis Hochberg, Defendant, and Richmond Light and Railroad Company, Appellant. Philip Komisar, as Administrator of the Estate of Anna Komisar, Deceased, Respondent, v. Louis Hochberg, Defendant, and Richmond Light and Railroad Company, Appellant.

      Negligence — railroads • — • motor vehicles — collision between automobile and trolley car — action to recover for injuries and death of passengers in automobile.

      Komisar v. Hochberg (2 cases), 223 App. Div. 755, affirmed.

      Cohen v. Hochberg (3 cases), 223 App. Div. 755, affirmed.

      Meyer v. Hochberg, 223 App. Div. 755, affirmed.
    (Argued June 21, 1928;
    decided July 19, 1928.)
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 27, 1928, affirming a judgment in favor of plaintiff entered upon a verdict. The actions were to recover damages for injuries sustained by the several plaintiffs or their intestates in a single accident alleged to have been caused by the negligence of the defendant railroad company and Hochberg. The defendant Hochberg, while driving an automobile in which the various plaintiffs or their intestates were passengers along Richmond Terrace in Staten Island, turned onto the tracks of defendant railroad company and came into collision with a trolley car approaching from the opposite direction, causing the death of two of the passengers and injuries to the remainder.

      Abel E. Blackmar and Bertram, G. Eadie for Richmond Light and Railroad Company, appellant.

      Moses Feltenstein for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    Clementine Kadelburg, Respondent, v. Hartford Accident and Indemnity Company, Appellant.

      Insurance (accident) — waiver — non-payment of last premiums due before death of insured — custom of extending credit and delivery of certificate of renewal to broker of insured kept policy in force in absence of notice of cancellation.

      Kadelburg v. Hartford A. & I. Co., 223 App. Div. 169, affirmed.
    (Argued June 21, 1928;
    decided July 19, 1928.)
    Appeal from a judgment, entered March 30, 1928, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of the court at a Trial Term, setting aside a verdict in favor of plaintiff directed by the court, and reinstated the verdict. The action was to recover upon a policy of accident insurance. The defense was that the policy had expired by failure to pay the premium. The policy was issued July 22, 1921. The insured died from accident November 4, 1923. Testimony showed that it had been the custom of defendant to send a renewal certificate to the broker of the insured and to extend credit for payment of the premiums. The last premium paid was due January 22, 1923, but payment was not made until April 7, 1923. The next payment was due July 22, 1923. The renewal certificate was sent to the broker and held by him until after the death of insured, but the premium was not paid. The Appellate Division held that the course of dealing as to previous payments and the delivery of the renewal certificate to the agent of insured kept the policy in force in the absence of notice of cancellation.

      Robert H. Charlton and John T. Loughran for appellant.

      Morris P. Schaffer and Howard C. Lane for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Endicott Johnson Corporation, Appellant, v. Alexander Foldesy, Respondent.

      Appeal — motion for summary judgment granted — judgment not entered until after expiration of time to appeal from order granting motion — appeal may be taken from judgment.

      Endicott Johnson Corp. v. Foldesy, 223 App. Div. 716, affirmed.
    (Submitted June 21, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 24, 1928, which reversed an order of Special Term denying a motion by defendant to compel the plaintiff to accept service of a notice of appeal and granted said motion. The following question was certified: “ Where an order of the Supreme Court is entered granting a motion for summary judgment under rule 113 of the Rules of Civil Practice, and judgment is entered thereupon after the time in which to appeal from said order has expired without an appeal from said order having been taken, has a defendant then a right to appeal to the Appellate Division of the Supreme Court from said judgment? ”

      Benjamin Lesser and William Lesser for appellant.

      George Garfunkel for respondent.
   Order affirmed, with costs, and question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of Samuel Chugerman, Respondent. The Brooklyn Bar Association, Appellant.

      Appeal — attorneys — appeal, by permission, from order of Appellate Division granting application for reinstatement as attorney dismissed.

      Matter of Chugerman, 223 App. Div. 855, appeal dismissed.
    (Argued June 21, 1928;
    decided July 19, 1928.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 8, 1928, which granted an application for reinstatement as an attorney and counselor at law. The following question was certified: “ Did the Appellate Division of the Supreme Court of the State of New York possess the power to grant the motion for reinstatement to the bar, made by Samuel Chugerman, pursuant to notice of motion directed to the Brooklyn Bar Association and bearing date December 6, 1927?”

      Mortimer W. Byers for appellant.

      William I. Siegel for respondent.
   Appeal dismissed, without costs, on the authority of Matter of Dolphin (240 N. Y. 89); no opinion.

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


text:
    Assir M. Lewine, Respondent and Appellant, v. National City Bank of New York, Appellant and Respondent, Impleaded with Another.
    (Submitted June 18, 1928;
    decided July 19, 1928.)
   Motion for feargument granted; the reargument to be restricted to the single question whether there was error in excluding evidence of custom. (See 248 N. Y. 365.)


author: Kellogg, J.

text:
    Corklite Company, Inc., Respondent, v. The Rell Realty Corporation, Defendant, Isaac Goldberg et al., Respondents, and Capital City Surety Company, Appellant. Louis Baron et al., Respondents, v. The Rell Realty Corporation et al., Defendants, G. Goldberg & Son, Inc., et al., Respondents, and Capital City Surety Company, Appellant.

      (Argued May 31, 1928;
    decided July 19, 1928.)

      Abraham J. Halprin for appellant.
    The act of Ira May in having added to the power of attorney the words “ and to discharge mechanics’ liens ” was a forgery and such an act that the appellant could not be held liable for. (Henry v. Allen, 151 N. Y. 1; Bienenstock v. Ammidown, 155 N. Y. 48; Benedict v. Arnoux, 154 N. Y.
      718; St. John v. Fowler, 229 N. Y. 270; Muller v. Hillenbrand, 227 N. Y. 448; Malloy v. Whitehall Portland Cement Co., 116 App. Div. 839; Hull v. Littauer, 162 N. Y. 569.)

      Lynn C. Norris and Edward M. Perry for William M. Crane, respondent.
    The case on appeal contains evidence sufficient to sustain the findings of fact as to the agency of May and Lawley to execute the undertakings in question, and to sustain the findings of fact that the appellant surety company is estopped to deny their agency. (Dennerlein v. Martin, 247 N. Y. 145.) The authority of May and Lawley was not defined or limited either by the original power of attorney or by the certified copies. (Keyes v. Metropolitan Trust Co., 220 N. Y. 237; Philadelphia, etc., Co. v. 7th Nat. Bank, 6 Fed. Rep. 114; Silver Bay Assoc. v. Landon, 121 Misc. Rep. 712; Marshall v. Reading Fire Ins. Co., 78 Hun, 83; 149 N. Y. 617.) Crosswell’s testimony that May and Lawley were agents is evidence of their general agency. (1 May on Insurance [4th ed.], 235, § 126; Lycoming Fire Ins. Co. v. Woodworth, 83 Penn. St. 223; Wells-Dickey Co. v. American Alliance Ins. Co., 69 Mont. 586; Forward v. Continental Ins. Co., 142 N. Y. 382.) The authority given to May and Lawley to execute and deliver bonds and undertakings independently of the surety company, is evidence of their general agency and that they were authorized to execute and deliver the bonds in question. (People’s Bank v. St. Anthony’s R. C. Church, 109 N. Y. 512; U. S. Surety Co. v. Meenan, 211 N. Y. 39; Pitney v. Glens Falls Ins. Co., 65 N. Y. 6; McClelland v. Mutual Life Ins. Co., 217 N. Y. 336; Forward v. Continental Ins. Co., 142 N. Y. 382; Continental Ins. Co. v. Ruckman, 127 Ill. 364; Kahn v. Traders Ins. Co., 4 Wyo. 419.) The insertion of the words “ and discharge of mechanics’ liens ” was not suspicious and did not cast upon the respondents any burden of inquiry as to the authority of May and Lawley to execute these bonds. (Little v. Herndon, 10 Wall. [77 U. S.] 26; Lewis v. Payn, 8 Cow. 76; Jackson v. Jacoby, 9 Cow. 126; Rosenberg v. Jett, 72 Fed. Rep. 90; Kilpatrick v. Wiley, 197 Mo. 123; Maybie v. Sniffen, 2 E. D. Smith, 1; Arnold v. Brechtel, 174 Mich. 147; Devoy v. Mayor, etc., of N. Y., 35 Barb. 264; 36 N. Y. 449; Xander v. Commonwealth, 102 Penn. St. 434; Branch v. Branch, 143 Tenn. 210; Monona County v. Gray, 200 Ia. 1133; Hommel v. Deviney, 39 Mich. 522; Friedman v. Loveman, 117 Ala. 454.) Affixing the corporate seal of the surety company to the bonds by May and Lawley was the final act in the execution of these bonds and this corporate seal, which had been delivered to these agents for that purpose, when so affixed to the bonds, should be regarded as a continuing affirmation by the surety company that these bonds had been lawfully executed. (Fifth Ave. Bank v. Forty-second St., etc., R. Co., 137 N. Y. 231; Mut. Life Ins. Co. v. Forty-second Street, etc., R. Co., 74 Hun, 505; Hellman v. Forty-second Street, etc., R. Co., 74 Hun, 529; 148 N. Y. 727.)

      Ernest J. Magan for Jack Zimmerman et al., as copartners under the name of Beacon Electric Company, respondents.
    The undertaking filed on behalf of the defendant-appellant Capital City Surety Company is binding and valid as against these respondent lienors. (2 Kent Com. 616; 1 Am. & Eng. Ency. of Law [2d ed.], 1207.)

      Harry G. Anderson and Louis J. Moss for Jacob Greenbaum & Son, respondent.

      Emanuel H. Reichart and Samuel Hellinger for Isaac Goldberg, respondent.
   Kellogg, J.

The respondents, other than William M. Crane, supplied materials and labor to the defendant Rell Realty Corporation, the owner of certain real estate, and filed notices of liens against the premises, for the satisfaction of their claims. Undertakings, conditioned upon the payment of any judgments which might be rendered against the property for the enforcement of the liens, executed by the Rell Realty Corporation, as principal, and apparently by the defendant the Capital City Surety Company as surety, were filed in the appropriate county clerk’s office. Court orders, discharging the liens, were thereupon made and entered. (See Lien Law [Cons. Laws, ch. 33], sec. 19.) After the orders had been entered the defendant William M. Crane purchased the property. The court has held that the defendant Crane took title free and clear of the liens; that the defendant Capital City Surety Company, under the terms of its undertakings, was liable for the payment to the lienors of the amount of their claims. Judgment in favor of such lienors for the amounts due upon their liens has been affirmed.

The undertakings were subscribed as follows: “ Capital City Surety Company, by Ira E. May, Attorney-in-fact, Florence L. Lawley, Attest.” Opposite the name “ Capital City Surety Company” seals were placed. These were stamped to read “ Capital City Surety Company, Incorporated 1912, New York.” The names of Ira E. May and Florence L. Lawley appearing upon the undertakings were signed by them. Ira E. May affixed the seals and stamped the corporate name thereupon by means of the official seal of the corporation. The Capital City Surety Company asserts that Ira E. May and Florence Lawley were not authorized to execute the undertakings in question.

Concededly blank bonds, undertakings and seals had been confided by the Capital City Surety Company to Ira E. May and Florence L. Lawley and they had access to the official seal of the corporation. Concededly they were authorized to negotiate and write for the company bonds and undertakings; to accept and reject risks; to frame the terms of the bonds to be issued; to attach seals thereto; to stamp the same with the official seal of the corporation; to issue the bonds in return for premiums which they were authorized to receive. These facts tended to establish that Ira E. May and Florence Lawley were the general agents of the Capital City Surety Company. (Post v. Æna Ins. Co., 43 Barb. 351, 355; Walsh v. Hartford Fire Ins. Co., 73 N. Y. 5; Pitney v. Glen’s Falls Ins. Co., 65 N. Y. 5; Joyce on Insurance, sec. 395; Cooley’s Briefs on Insurance, vol. 1, p. 467; Mechem on Agency, sec. 732.) A person who has power to transact all the business of his principal of a particular kind is a general agent. A person who is authorized to act only in a specific transaction is a special agent, The mere fact that the authority of an agent is limited to a particular business does not make his agency special. (Joyce, supra.) We hold, under the authorities cited, that Ira E. May and Florence Lawley were the general agents of the Capital City Surety Company to execute and issue bonds on its behalf. The question arises, did they act within the scope of their authority as general agents?

It has been held that a general agent, in spite of instructions forbidding the act, may, nevertheless, effectively insure a risk not belonging to the limited territory of his agency (Lightbody v. North American Ins. Co., 23 Wend. 18); that he may, although expressly forbidden, effectively insure the property of an insolvent person (German Fire Insurance Co. v. Gibbs, Wilson & Co., 42 Tex. Civ. App. 407); that he may insure against the risk of an accident, although contrary to instructions, a person of an age of over sixty-five years (Crawford’s Administrator v. Travelers Ins. Co., 124 Ky. 733); that he may insure, against risk of an injury, a person operating a circular saw, though the risk is forbidden (Denoyer v. First Nat. Accident Co., 145 Wis. 450); that he may insure the property of a person expressly named as a prohibited risk (Hicks v. British Amer. Assur. Co., 13 App. Div. 444); that he may insure a “ special risk ” although expressly proscribed. (Ruggles v. Amer. Cent. Ins. Co., 114 N. Y. 415.) In all these cases it was held that policies were enforcible if the assured was ignorant of the limitations placed upon the power of the agent. In the Ruggles case it was said: “ The manner of conducting the business of insurance is so well known that a person may reasonably assume that one having the apparent power of a general agent is not limited by his instructions as to the class of risks he may insure.”

A power of attorney in writing expressly authorized Ira E. May and Florence Lawley “ to sign, execute, acknowledge and deliver ” in the name of their principal, bonds and undertakings for “Administrators, Assignees, Conservators, Committees of Incompetents, Executors, Guardians, Trustees, Receivers in Bankruptcy Proceedings required to be given by any Statute, Order or decree of any Court of the State of New York,” and likewise “ all bonds upon Attachment, Garnishment, Injunction, Removal of Cause to Federal Courts, in Replevin, for Non-Resident Plaintiffs and for Costs required to be given as aforesaid.” It will be observed that the bonds and undertakings which' Ira E. May and Florence Lawley were thus given authority to write all belonged to a class which may be termed “ judicial.” That is to say, they are instruments of a type the execution of which courts are required to exact before permission to exercise legal authority may be accorded, or before certain desired results may be achieved in legal proceedings. Almost the entire field of “ judicial ” bonds and undertakings are covered by the power. Of course, when attention is directed to the point, it becomes noticeable that undertakings to cancel mechanics’ liens, which are provided for by section 19 of the Lien Law, are not expressly mentioned. That the Capital City Surety Company possessed the power to write such undertaldngs cannot be doubted. Otherwise it would have defended, as it has not, on the ground of a lack of corporate power. Here we have, then, a corporation empowered to write, we will say, every form of judicial bond, imparting to general agents the express power to write for it substantially all bonds and undertakings of á judicial character, yet withholding from the agents the single power of writing mechanic’s lien undertakings. It will be observed that nowhere is there proof that the general agents were prohibited from writing bonds not enumerated in the power. Indeed, it appears from a statement made by the assistant secretary of the corporation that they had been permitted to issue bonds of a character not included therein. Nevertheless, it might with some justice be said that the particularization of powers granted implied a denial of all other powers. However this may be, it seems to us that the withholding of a single power, from the great mass of kindred powers granted, was in the nature of a prohibition of the acceptance of a particular risk, which ought not to be given effect in the case of a person taking bonds without notice of the limitation imposed. Surely all customers of the general agents, from the great variety of their permitted activities in the field of judicial bonds, would assume that they had the power to write and issue undertakings to cancel mechanics’ liens, such as were here given. We think a manifest fraud upon innocent people would be perpetrated if the limitation were permitted to prevail. We hold that it does not prevail, and that Ira E. May and Florence Lawley, in respect to these lienors, as general agents of the Capital City Surety Company, had authority to write the undertakings in question and thereby bind their principal. In this view of the case it becomes immaterial that the general agents interlined copies of the powers attached to the undertakings, to express a power to issue bonds to cancel mechanics’ liens. The lienors who accepted the undertakings could not have been put upon notice, by the presence of the interlineations, of the restricted power of the general agents, for the reason that the correctness of the interlined copies was apparently certified by a certificate admittedly subscribed by the assistant secretary of the corporation. The corporation intrusted its agents with blank bonds to be annexed to a power of attorney and also with the corporate seal, and authorized them to bind the documents together and affix the seal thereto. This was the final act of authentication. The agents had apparent authority to accredit the power of attorney as the then existing evidence of the mandate of their principal, and the defendant, and not the public, took the risk of forgery.

In each case the judgment should be affirmed, with costs.

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

Judgments affirmed.


text:
    John J. Scanlon, as Administrator of the Estate of John J. Scanlon, Deceased, Respondent, v. First National Bank of Mexico, New York, Appellant.

      (Argued June 19, 1928;
    decided July 19, 1928.)

      Harry C. Mizen and Francis E. Cullen for appellant.
    The defendant owed no duty to the plaintiff to stop payment of the plaintiff’s check. (Prowinsky v. 2nd Nat. Bank, 265 Fed. Rep. 1003; Hennessey Bros. & Evans Co. v. Memphis Nat. Bank, 129 Fed. Rep. 557; Thomas v. International Bank, 46 Ill. App. 461; Franklin Bank v. Byram, 39 Me. 489; 1 Morse on Banks & Banking, § 360; Brady on Bank Checks [2d ed.], 1414, § 255.)

      Joseph B. Murphy and Charles N. Bulger for respondent.
    The defendant is hable for the damages sustained by the plaintiff. (Bown Bros., Inc., v. Merchants’ Bank, 214 App. Div. 693; 243 N. Y. 366; International Products Co. v. Erie R. R. Co., 244 N. Y. 331; Richard v. Credit Suisse, 242 N. Y. 346; Martin v. Home Bank, 160 N. Y. 190; Shipsey v. Bowery Nat. Bank, 59 N. Y. 485; Rankin v. Colonial Banks, 31 Misc. Rep. 227; 60 App. Div. 629; Irving Bank v. Wetherall, 36 N. Y. 335.)
   Kellogg, J.

The plaintiff, John J. Scanlon, was the son of John J. Scanlon, of whose estate he is now the administrator. He conducted for his father a certain transaction in the purchase and sale of sugar from which a loss apparently resulted. The defendant bank was the recipient of a letter of credit, furnished for the purpose of financing the transaction, by a customer of John J. Scanlon, to whom the sugar purchased by Scanlon had been sold. It is said that the defendant was negligent in failing to inform Scanlon of the expiry date of the letter of credit, and that, as a result, the sugar could not be delivered to the customer within the time limited, to the damage of Scanlon. This action is brought to recover the loss alleged to have been sustained.

On June 2, 1920, John J. Scanlon, Jr., at Oswego, New York, received from George B. Harris and Company, commission merchants of Syracuse, New York, an order for sixty thousand pounds of granulated sugar at 29 cents a pound, on board cars at New York city. He immediately communicated with the Paragon Sales Corporation of New York and obtained an offer of the sugar, in the amount ordered, at 28 cents a pound, on cars in New York. Scanlon at once informed Sweetland, the vice-president of the defendant, of the negotiations which he had conducted. Sweetland said to him: How can you handle this, you haven’t any money, you are pretty well tied up here, now.” Scanlon said: “I will arrange with Mr. Harris and Mr. Harris will send the letter of credit, he will have the City Bank Trust Company call you and tell you he is sending the letter of credit of $17,400.” Scanlon telephoned an acceptance of the order of Harris and Company and made the necessary arrangements with Harris and the City Bank Trust Company of Syracuse, for a letter of credit. He then telephoned an order for the sugar to the Paragon Sales Corporation. Later in the day, on June 2d, Sweetland informed Scanlon that the City Bank Trust Company had telephoned that the letter of credit would be forwarded immediately. On the following morning J. J. Scanlon, Jr., made out a check for $16,800, payable to the Paragon Sales Corporation, and signed his father’s name thereto by J. J. S. Jr.” He then wrote a letter to the National Bank of Commerce of New York, advising them of the inclosure of the check, and stating that the check was to be paid to the Paragon Company upon the delivery of a bill of lading showing a shipment of sixty thousand pounds of sugar to the order of J. J. Scanlon, at Syracuse, “ notify Geo. B. Harris & Co. Syracuse, N. Y.” The check drawn by Scanlon was certified by Sweetland as vice-president of the defendant. Both letter and check were that morning mailed to the National Bank of Commerce. Later in the day Sweetland informed Scanlon that his bank had received the letter of credit from the Syracuse bank. The letter of credit received was dated June 2d, 1920, and recited that it was drawn at the request and for the account of Geo. B. Harris & Co. of Syracuse, N. Y. It authorized the defendant to pay J. J. Scanlon the sum of $17,400 upon the surrender of a bill of lading, representing the shipment of sixty thousand pounds of granulated sugar, drawn or indorsed to the order of the City Bank Trust Company,. Syracuse, N. Y. It provided that all drafts drawn in accordance with its terms would be honored by the City Bank Trust Company “ if drawn and negotiated prior to June 10, 1920.” On June 9th, 1920, no bills of lading had been delivered to the defendant bank by J. J. Scanlon. Accordingly, the defendant returned the letter of credit, which by its terms was to expire on that day, to the City Bank Trust Company. On June 14th the Paragon Sales Corporation shipped the sugar and received a bill of lading issued to Scanlon, as previously requested by him. On the same day it delivered the bill of lading to the National Bank of Commerce, and received the Scanlon certified check for $16,800. On June 15th, 1920, Sweetland told Scanlon that the letter of credit had been returned to the Syracuse bank. Scanlon professed ignorance of the fact that the letter contained terms providing for its expiration before June 10th. He immediately assumed that Harris and Company would refuse to receive the sugar and attempted to cancel the purchase made from the Paragon Sales Corporation without success. Scanlon then discounted notes with the defendant bank to provide moneys to meet the outstanding certified check which was after-wards presented to and cashed by the defendant. The sugar was placed in a warehouse by Scanlon, and after-wards sold at a loss, which the plaintiff now seeks to recover.

The City Bank Trust Company, by its letter of credit, agreed to honor a draft, drawn by J. J. Scanlon, if discounted or purchased by the defendant, provided the draft were accompanied by a bill of lading, drawn or indorsed to the order of the City Bank Trust Company, showing the shipment of sixty thousand pounds of granulated sugar. When a bank buys or discounts a draft relating to a letter of credit it owes no duty to the drawee or the drawee’s customer. No contractual relation exists between it and the drawee who has delivered to it the letter of credit. It may buy or refuse to buy as it chooses. It may buy after the passage of the expiry date of the letter without violating any duty resting in contract or otherwise. (Courteen Seed Co. v. Hong Kong & S. B. Co., 245 N. Y. 377.) Equally must it be true that it owes no contractual duty toward the person for whose benefit the letter is written to discount or purchase any draft drawn against the credit. No relationship of agent and principal, or of trustee and cestui, between the receiving bank and the beneficiary of the letter id established. In this instance, the defendant, before the required bill of lading for the sugar had been delivered to it, and, therefore, before the letter of credit had become effective, loaned to Scanlon, by certifying his check, its own credit, so that the sugar might be purchased. It thus clearly became, not the agent, but the creditor of Scanlon.

In certain instances there is liability for information negligently imparted. (Courteen Seed Co. v. Hong Kong & S. B. Co., supra; International Products Co. v. Erie R. R. Co., 244 N. Y. 331.) In the former case Judge Pound, referring to cases where liability has been found to exist, said: “ They all rest on the principle that negligent words are not actionable unless they are uttered directly, with knowledge or notice that they will be acted on, to one to whom the speaker is bound by some relation of duty, arising out of public calling, contract or otherwise, to act with care if he acts at all.” In the latter case Judge Andrews said: “ There must be knowledge or its equivalent that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that if false or erroneous he will because of it be injured in person or property. Finally the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care.” It may be doubted whether the relationship between a bank, which has received a letter of credit, and the beneficiary of the letter, is such that for information erroneously imparted by the former to the latter, concerning the terms of the credit, liability is cast upon the former. The question in this instance, however, is not was the defendant under a duty to make certain that information imparted by it was correct, but rather was it under a duty to impart any information whatsoever? Certainly the defendant was not aware that the information was “ desired for a serious purpose ” or that Scanlon intended to " rely and act upon ” information to be given. Scanlon did not ask for information. Scanlon, not the defendant, negotiated with Harris and Company and the City Bank Trust Company for the letter of credit. The letter was procured by Scanlon and forwarded at his request to the defendant. "Presumably he knew of the terms of a letter of credit for which he had negotiated. Presumably its terms were amply sufficient for the protection of the transaction in which he was to engage. The record is barren of any proof to indicate that the defendant knew that Scanlon was ignorant of the expiry date of the letter. Therefore, we are clear that no duty rested upon the defendant to volunteer information upon that point.

There is another reason why the plaintiff should fail. It does not appear that the loss complained of was proximately caused by the failure of the defendant to give information of the expiry date of the letter. Before the letter had been received by the defendant Scanlon had already bought the sugar from the Paragon Sales Corporation and had already sold it to Harris and Company. Scanlon testified that, on June 2d, after talking with Sweetland, he completed his arrangements with the Paragon Sales Corporation and Harris and Company. He stated that he had no contracts in writing with either party. He was asked: “ The contracts were all made over the telephone, were they? ” and his answer was “Yes.” He was, therefore, already bound in honor, if not in law, to receive deliveries from the Paragon Sales Corporation, prior to the time when the defendant received the letter of credit and became aware of its terms. It does not appear that disclosure of its terms, promptly made, would have enabled Scanlon to procure deliveries of the sugar before the expiry date. Otherwise, disclosure would -have enabled him, not to avoid entering into a contract of purchase, but to break a contract already made before the sugar was delivered, and thus to render himself immune from liability, since the contract was not in writing. We do not think that the performance of an oral contract honestly entered into can be the basis of a recovery of damages, on the part of the person performing, against a person because of whose negligence it became impossible to breach the contract with impunity. Again, it nowhere appears that Scanlon, having received delivery of the sugar, could not have disposed of it to Harris and Company, who had contracted to buy it. No effort was made by Scanlon to procure Harris and Company to accept delivery. That company did in fact never refuse to accept delivery, for delivery was never offered. We cannot assume that an offer would have met with refusal. This is especially true for the reason that the price of granulated sugar rose, rather than fell, after the delivery to Scanlon, and remained for an appreciable period above the price at which Scanlon had sold to Harris and Company.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all the courts.

Cardozo, Ch. J., Pound, Andrews and O’Brien, JJ., concur; Lehman, J., concurs on the ground first stated in the opinion; Crane, J., not sitting.

Judgments reversed etc.


author: Cardozo, Ch. J.

text:
    In the Matter of Timothy D. Poucher, as President of Federation of Teachers’ Associations of the City of New York, Appellant, against Charles W. Berry, as Comptroller of the City of New York, Respondent.

      (Submitted May 28, 1928;
    decided July 19, 1928.)
    J. M. Cohen for appellant.
    The Comptroller’s contention with respect to the audit and payment of claims against the Board of Education is without any basis in law. (People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125; People ex rel. Smith v. Clarke, 174 N. Y. 259; Hearst v. McClellan, 102 App. Div. 336; People v. Sutherland, 207 N. Y. 22; Smith v. Hedges, 223 N. Y. 176.) The law has imposed upon the Board of Education the responsibility for the payment of claims, and in the absence of fraud, collusion or bad faith, its determination is binding on the Comptroller. (People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125; Matter of Brennan, 245 N. Y. 8; Matter of Fuhrman v. Graves, 235 N. Y. 77; Matter of Fleischman v. Graves, 235 N. Y. 84.) Mandamus is the proper remedy. (Matter of Fuhrman v.
      Graves, 235 N. Y. 77; Matter of Fleischman v. Graves, 235 N. Y. 84; Dannat v. Mayer, 66 N. Y. 585; Matter of Clayton Co. v. Craig, 209 App. Div. 801; 240 N. Y. 547; Davidson v. Village of White Plains, 197 N. Y. 266; Matter of Brennan, 245 N. Y. 8.)

      George P. Nicholson, Corporation Counsel (William S. Allen, J. Joseph Lilly and William E. C. Mayer of counsel), for respondent.
    The petitioner has failed to show a clear legal right to the peremptory mandamus order sought inasmuch as the claims sought to be enforced' failed to disclose on their face any legal liability therefor on the part of the Board of Education. (People ex rel. McMackin v. Board of Police, 107 N. Y. 235; People ex rel. McCabe v. Matthies, 179 N. Y. 242; Matter of Whitman, 235 N. Y. 1; Matter of Eiss v. Summers, 205 App. Div. 691; Village of Fort Edward v. Fish, 156 N. Y. 363; People v. Journal Co., 213 N. Y. 1.)
   Cardozo, Ch. J.

A petition for mandamus states that petitioner’s assignors were injured through the negligence of the Board of Education of the city of New York while in its service as teachers; that the Board after investigation of their claims for compensation agreed to make certain payments in accord and satisfaction, which the claimants agreed to accept; and that thereafter the orders and audits prescribed by section 880 of the State Education Law (Cons. Laws, ch. 16) were prepared and transmitted to the Comptroller of the city of New York, who refused to countersign them, though sufficient funds were appropriated to the credit of the Board.

If these statements stood untraversed, they would sustain a peremptory order of mandamus, for an audit by the Board of a claim not fraudulent or illegal is not subject to reaudit at the will of the Comptroller (Matter of Brennan v. Bd. of Education, 245 N. Y. 8; People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125).

There is, however, an answer which traverses the petition as to material averments, and thus forestalls relief in the absence of a trial. The Comptroller denies that there was any compromise or audit of the claims by the Board of Education, and denies that any orders or audits were transmitted or received. All that the Board did, according to the answer, was to certify the claims as illegal and invalid, but as supported by elements of equity and fairness justifying relief in the exercise by the Board of Estimate and Apportionment of the discretionary power conferred by chapter 304 of the Laws of 1924. A peremptory mandamus may not issue while those denials stand.

The matter would end here if it were not for replying affidavits which put another face on the transaction. Replying affidavits are not to be considered, upon an application for a peremptory mandamus, for the purpose of overcoming denials or defenses in the answer (Matter of Haebler v. N. Y. Produce Exchange, 149 N. Y. 414; Matter of Griffin v. Williams, 168 App. Div. 63).' They are not to be ignored, however, in determining the propriety of an alternative mandamus, which may be granted under a prayer in the petition for general relief. By these affidavits, it appears that the claims were duly audited by the Board and transmitted to the Comptroller for countersignature at divers times between 1919 and 1923; that the Comptroller, upon refusing to countersign them, suggested that he might approve them if transmitted as equitable claims under Lavjs of 1924, chapter 304; that to obviate his objections, a resolution so transmitting them was adopted in 1924, though in truth the claims were not merely equitable but legal; that despite this concession, approval was withheld; that at no time did the claimants assent to a rescission of the accord or a cancellation of the audit; and that the Board, maintaining its first position that the claims when compromised were legal and that an adequate appropriation is available for payment, has renewed its demand upon the Comptroller that he honor the Board’s audit.

If proof of these statements is made upon a trial, the petitioner will have made out a case for relief by mandamus. True, of course, it is that mandamus will not issue to compel the payment of an illegal claim. This does not mean, however, that when a claim legal on its face has been audited by a public officer to whom the power of audit is confided, the merits may be re-examined by another public officer, in this instance the Comptroller, in the absence of a showing of collusion or fraud. So far as the replying affidavits inform us, the claims here in controversy were legal on their face. There is nothing on their face to exclude a valid demand within the principles of the tort liability of boards of education as expounded by this court in a very recent decision (Lessin v. Bd. of Education, 247 N. Y. 503). If error was committed by the Board in its interpretation of the facts, there was none so flagrant as to import a defect of jurisdiction (People ex rel. Smith v. Clarke, 174 N. Y. 259; Smith v. Hedges, 223 N. Y. 176). Jurisdiction existing, the audit must be upheld, since there is no pretense that it was vitiated by collusion or fraud.

The order of the Appellate Division and that of the Special Term should be modified so as to grant the petition to the extent of directing an alternative order of mandamus, with costs in all courts to abide the event.

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

Ordered accordingly.


author: Crane, J.

text:
    Samuel M. Marcus, as Receiver of James J. Kane et al., Appellant and Respondent, v. United States Casualty Company, Respondent and Appellant.
    (Argued June 14, 1928;
    decided July 19, 1928.)

      Harry J. Leffert for plaintiff, appellant and respondent.
    The policy of insurance covered the judgment recovered by Borger against the assured. (Green River Distilling Co. v. Mass. B. & Ins. Co., 197 App. Div. 499; O’Connell v. N. J. Fidelity Co., 201 App. Div. 117.)

      George F. Hickey and William Butler for defendant, respondent and appellant.
    The insurance carrier was justified in refusing to defend the Borger action because the insurance policy expressly excluded liability for injuries sustained by reason of the elevator or hoist involved in that action. (Allen v. G. A. Ins. Co., 123 N. Y. 6.)
   Crane, J.

James J. Kane, J. Winters Kane and Emil Kane were the owners and in possession and control of premises situated at 102 Front street, in the borough of Manhattan, city of New York. One of their tenants, Seeman Brothers, Inc., occupied a portion of the premises situated on the second floor. On the eighth day of October, 1921, an employee of Seeman Brothers, Inc., named John Borger, was proceeding to a toilet room maintained on the second floor by the Kanes for the use and convenience of the tenants and their employees. Near to the entrance of the toilet were the doors leading into the elevator shaft. There were no distinguishing marks or signs on any of the doors. Borger, mistaking the entrance to the elevator shaft for the entrance to the toilet, pushed open the doors and stepped into the shaft, fell to the bottom and received severe bodily injuries.

He thereupon commenced an action against the owners in the District Court of the Southern District of New York and recovered a judgment of over $12,000, which on appeal was affirmed by the Circuit Court of Appeals of the second circuit.

The Kanes were insured by the United States Casualty Company, which received notice of the injury and of the suit, but which failed to defend in behalf of the owners on the ground that the accident was excluded from their policy.

This action has been brought by the receivers of the property and assets of the Kanes to recover from the United States Casualty Company the amount of its alleged liability upon the policy. The question presented is whether Borger’s accident was covered by the insurance.

The owners took out this casualty insurance through one Henry N. Wittpenn, who procured "the policy from the United States Casualty Company. Upon the delivery of the policy, the following took place: Mr. Kane asked me what the policy covered and I told him. He said to me, I don’t wish to take this policy with the elevator coverage, because no one uses this elevator but myself. It is for our own use. The tenants are not using this elevator. For that reason I don’t wish to have it covered. I only want the public liability coverage without elevator.’ ”

Thereupon, the agent took the policy back to the company, had it rewritten, excluding the elevator. On the day of the accident, therefore, the policy contained certain clauses stating what it did not cover. It read:

Condition A. This policy does not cover * * * (3) loss arising from bodily injuries sustained by reason of any elevator, its car or platform or the shaft or hoistway used in the operation thereof.”

In a schedule annexed to the policy there was described a hand power rope hoist — not covered.”

The accident to Borger happened October 8, 1921. Two days thereafter Mr. Kane told Wittpenn, the insurance agent, to have the present policy changed or indorsed so as to include the elevator, and thereupon there was typewritten on the policy the following clause:

“ ADDITIONAL PREMIUM $4.48
“ In consideration of an additional premium of Four dollars and forty-eight cents ($4.48) it is understood and agreed that the insurance under this policy is hereby extended from noon of this date to cover a Hand power rope hoist, located at premises 102 Front Street, New York City, New York.”

With this history of the insurance in mind, we may again ask whether the policy covered the accident. It did not cover any loss arising from bodily injuries sustained by reason of any elevator shaft or hoistway used in the operation of any elevator. Borger was hurt by falling down the elevator shaft. But for the shaft he would not have been hurt. The fact that he pushed open the doors leading to the shaft by mistake is immaterial. He may have mistaken the doors because the hallway was dark, or because they were not properly marked and distinguished from the entrance to the toilet. But the injury he received, causing the loss, was due to the shaftway. It may be suggested with some reason that if the door was properly marked “ elevator ” the accident would not have happened and that, therefore, the proximate cause was the failure to thus give proper warning. We are dealing, however, with the terms of a policy, of a contract which cannot be refined beyond the intents and purposes of the parties. This is an agreement made between the Kanes and the insurance company. The injured person has no better or other rights than the insured. What did the insured contract for? The United States Casualty Company agreed to insure them against losses arising out of bodily injuries received in the building 102 Front street unless the injury was sustained by reason of the elevator shaft or the hoistway. This injury was received by reason of the elevator shaft and the hoistway, and, therefore, was not covered by the policy.

Policies of insurance, when capable with equal reason of one or more interpretations are construed against the insurer and in favor of the insured. (Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311.) This is upon the theory that the insurance company generally drafts the terms of the instrument. No liberality of construction, however, in favor of the insured permits the inclusion of a risk which has been expressly excluded by the terms of the contract. This policy must be given a reasonable interpretation, and the words used, their ordinary and usual meaning. Injuries sustained by reason of the elevator shaft cannot be limited on the principle of proximate cause as vaguely understood in legal terminology. We cannot imagine that the parties in using these words understood that if a person fell down the shaft because the hallway was dark, the bodily injuries would be sustained by reason of the darkness, not because of the elevator shaft. This would virtually be making a new contract for the parties.

While the owner’s subsequent act in no way could modify or add to the terms of his policy, it is at least indicative of the meaning which he gave to it. He understood that the premium he was paying did not cover the elevator or the shaft. Two days after the accident he paid an additional premium and was covered. As before stated, we are dealing here with the contract which the owner made with the insurer.

The plaintiff is also an appellant from an order of the Appellate Division modifying the judgment in an item of interest. We need not discuss the point as the order will fall with the judgment in favor of the plaintiff, which for the reasons here stated we reverse.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.