text:
    The Mariner Harbor National Bank, Appellant, v. Graham Beach Estates, Inc., Respondent, Impleaded with Others.
    (Argued May 17, 1927;
    decided May 31, 1927.)

      Bills, notes and checks — negotiable instruments — action to recover on promissory note — indorsement making same non-negotiable and subject to defenses set up in answer.

      Mariner Harbor Nat. Bank v. Graham, Beach Estates, Inc., 219 App. Div. 721, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 4, 1927, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and granting a new trial. The action was to recover upon a promissory note. The note had on its back the following indorsement:
    “ This note is given and payable on completion of gas plates and piping and ability to make and furnish gas properly by June 1st, 1924.
    “ Gasgo Power Corporation,
    "A. E. Dickerman,

      “Pres, and Gen’l. Mgr.

      “ Allen E. Dickerman,
    " Agent for Midland Gasgo Corp.”

    The defense was that the note was given pursuant to an agreement by payee to establish a gas plant and install piping and that the work was never completed;

      James Burke for appellant.

      Isaac N. Jacobson for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Village of North Pelham, Respondent, v. Raymond J. Ohliger et al., Appellants.
    (Submitted May 17, 1927;
    decided May 31, 1927.)

      Constitutional law — municipal corporations — villages — Zoning Law — validity of ordinance prohibiting erection of building within four feet of street line.

      Village of North Pelham v. Ohliger, 216 App. Div. 728, affirmed.
    Appeal from a judgment, entered May 17, 1926, 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 brought to enjoin the defendants from constructing a building on premises owned by them in the village of North Pelham, on the ground that the plans violated the zoning ordinance of the village in that the building was to be constructed within four feet of the front lot line of the premises. Defendants contended that the ordinance was unreasonable and unconstitutional in that it deprived defendants of the use of a portion of their land without compensation.

      George L. Kettner for appellants.

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

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


text:
    Lillian O’Mahony, Respondent, v. Benjamin M. Fando et al., Defendants, and The Fando Realty Corporation, Appellant.
    (Argued May 17, 1927;
    decided May 31, 1927.)

      Negligence — nuisance — streets — injury to pedestrian from falling into unguarded excavation close to sidewalk.

      O’Mahony v. Fando, 218 App. Div. 833, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department., entered January 3, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. Plaintiff was injured by falling into an unguarded excavation close to the sidewalk on Eighth avenue between Forty-, eighth and Forty-ninth streets in the borough of Manhattan, made in connection with repairs to a building in possession of defendant, appellant.

      Harold R. Medina, Edward Gluck and Jay A. Gilman for appellant.

      David C. Munson and Jeremiah A. O’Leary for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary Bamonte, as Administratrix of the Estate of Frank Bamonte, Deceased, Appellant, v. Arthur Davenport, Respondent.
    (Argued May 17, 1927;
    decided May 31, 1927.)

      Negligence — motor vehicles — pedestrian hilled by automobile owned by defendant and driven by his employee ■ — • complaint dismissed on ground automobile was being used contrary to orders of defendant.

      Bamonte v. Davenport, 217 App. Div. 734, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 17, 1926, unanimously affirming a judgment in favor of defendant entered upon a verdict directed by the court in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate was struck and killed by an automobile owned by defendant and driven by his employee. The trial court directed a verdict in favor of defendant on the ground that, at the time of the occurrence of the accident, defendant’s automobile- was being driven without his knowledge or permission, and' not' in: his business or interests, but against his express prohibition of its use by his chauffeur.

      Harold R. Medina and Harry E. Kriendler for appellant.

      John C. Robinson, Morris A. Wainger and James B. Henney for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Delia Cusack, Respondent, v. Nathan Ottinger et al., as Executors of Moses Ottinger, Deceased, Appellants. John Cusack, an Infant, by Patrick Cusack, His Guardian ad Litem, Respondent, v. Nathan Ottinger et al., as Executors of Moses Ottinger, Deceased, Appellants.
    (Argued May 17, 1927;
    decided May 31, 1927.)

      Landlord and tenant — master and servant — assault — liability of landlord for assault upon tenants by janitor.

      Cusack v. Ottinger (2 cases), 218 App. Div. 818, affirmed.
    Appeal, in the first of the above-entitled actions, from a judgment of • the Appellate Division of the Supreme Court in the first judicial department, entered January 7, 1927, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. Appeal in the second above-entitled action from a judgment of the said Appellate Division, entered January 7,1927, affirming a judgment in favor of plaintiff entered upon a verdict. The actions were begun by the respective plaintiffs for damages for personal injuries alleged to have been sustained by them through assaults committed by an employee of defendant’s testator, while plaintiffs resided in premises in the borough of Manhattan, city of New York, then owned by testator. The complaint in each action alleged that the employee of the defendant was in charge of the premises in capacity of superintendent or janitor; that the defendant had knowledge and notice that he was of a dangerous, troublesome and vicious nature and that at the time of the assaults the said employee was acting within the scope of his employment and the instructions given him by the defendant’s testator.

      Edward P. Mowton for appellant.

      Harold R. Medina and John L. O’Connell for respondents.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Abraham Herrmann, Appellant.
    (Argued May 9, 1927;
    decided May 31, 1927.)

      Crimes — practicing medicine without license — judgment of conviction affirmed.

      People v. Herrmann, 218 App. Div. 833, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1926, which affirmed a judgment of the Court of Special Sessions in the city of New York convicting the defendant of practicing medicine without a license in violation of subdivision 7 of section 160 of the Public Health Law.

      Paul L. Corwin for appellant.

      Joab H. Banton, District Attorney (Edward V. Loughlin of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Dorothy Goodman, Respondent, v. Central Coat & Apron Supply, Inc., Appellant.
    (Argued May 20, 1927;
    decided June 7, 1927.) .

      Negligence — motor vehicles — master and servant — injury from collision between automobile and wagon at street crossing.

      Goodman v. Central Coat & Apron Supply, Inc., 218 App. Div. 848, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 17, 1926, unanimously 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. At the time of the accident plaintiff was riding in her automobile proceeding southerly on Second avenue in the borough of Manhattan. At Thirty-fifth street defendant’s team and wagon being driven easterly at a rapid pace by one of its servants collided with the automobile and plaintiff received the injuries complained of.

      Walter G. Evans for appellant.

      Max Leff for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Vanet Downing, as Administratrix of the Estate of John Downing, Deceased, Appellant, v. The City of New York, Respondent.
    (Argued May 19, 1927;
    decided June 7, 1927.)

      Negligence — motor vehicles — master and servant — municipal corporations — collision between automobile belonging to city but being used by driver for his own purposes, and wagon driven by intestate — action for death — permission or authority to grant permission for use of automobile aside from city business not made out.

      Downing v. City of New York, 219 App. Div. 444, affirmed.
    Appeal from a judgment, entered March 4,1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate alleged to have been sustained through the negligence of defendant. Intestate was killed as the result of a collision between a wagon he was driving and a motor truck belonging to defendant. The proof showed that at the time of the accident the driver was using the truck, with the consent of his foreman, on his own business. The Appellate Division held that “permission by the city or any. authority to grant permission by its officers for the use of the truck outside of its corporate purpose was not made out in law or fact.”

      John J. O'Connor, Harold B. Medina, Louis H. Schleider, William F. McNulty and Harry E. Kreindler for appellant.

      George P. Nicholson, Corporation Counsel (Elliott S. Benedict, J. Joseph Lilly and Matthew J. Troy of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Egbert A. Smith, Respondent, v. Cauvigny Brush Company, Incorporated, Appellant, Impleaded with Another.
    (Argued May 19, 1927;
    decided June 7, 1927.)

      Negligence — infection — sale of shaving brush from use of which plaintiff developed anthrax.

      Smith v. Cauvigny Brush Co., Inc., 219 App. Div. 760, affirxbed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 11, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The complaint alleged that plaintiff became infected with the germs of anthrax through use of a shaving brush purchased by him at a retail drug store which in turn procured it from defendant, appellant, an importer and wholesaler of brushes.

      Bernard Swartz and William J. Carey for appellant.

      Barton Swift for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Gordon, Wolf, Cowen Co., Inc., Respondent, against The East Asiatic Co., Ltd., Appellant.
    (Argued May 19, 1927;
    decided June 7, 1927.)

      Arbitration — co7itract— sale — finding that purchaser was justified in refusing to accept goods as unmerchantable — alleged bias of arbitrator.

      Matter of Gordon, Wolf, Cowen Co., Inc., v. East Asiatic Co., Ltd., 218 App. Div. 723, affirmed.
    Appeal from a judgment, entered November 4, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion to confirm an award of arbitrators and granted said motion except as to the fees of the arbitrators. The arbitrators found that goods delivered in accordance with a contract of sale were unmerchantable so as to warrant the purchaser in refusing to accept the same. The appellant contended that one of the arbitrators was not judicially impartial and free from bias and, therefore, was incompetent to make a valid award.

      E. H. Sykes for appellant.

      Joseph C. Slaughter and Martin Baskus for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Dora Silverman, Respondent, v. Hugh J. Sheeran, as Receiver of New York Railways Company, Appellant.
    (Argued May 19, 1927;
    decided June 7, 1927.)

      Negligence — railroads ■ — •streets ■ — injury to pedestrian, struck by street railway car at crossing.

      Silverman v. Sheeran, 218 App. Dir. 722, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 6, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, while crossing University place at Eighth street in the borough of Manhattan, was struck by one of defendant’s cars and received the injuries complained of. The defense was contributory negligence.

      Ambrose Clogher and Henry J. Smith for appellant.

      Manley J. Greenwald for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The R. H. Howes Construction Company, Respondent, v. The Childs Dining Hall Company of New Jersey, Appellant.
    (Argued May 18, 1927;
    decided June 7, 1927.)

      Arbitration — building contract — alleged- misconduct of arbitrators.

      Howes Constr. Co. v. Childs Dining Hall Co., 218 App. Div. 817, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1926, which affirmed a judgment in favor of plaintiff entered upon an order of Special Term confirming an award of arbitrators appointed pursuant to provisions of a building contract to determine certain claims ,that had arisen thereunder. Appellant claimed that the arbitrators had been guilty of misconduct, had exceeded their powers and had failed to pass upon defendant’s counterclaims.

      Kenneth Dayton and Julius Henry Cohen for appellant.

      Frederick Hulse and Joseph G. Fink for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    James V. Murphy, Respondent, v. Union Indemnity Company, Appellant. (Actions Nos. 1 and 2.)
    (Argued May 18, 1927;
    decided June 7, 1927.)

      Insurance (accident) — action to recover on policies — defense of misrepresentations in, applications.

      Murphy v. Union Indemnity Co. (2 cases), 219 App. Div. 760, affirmed.
    Appeal in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 11, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The actions were to recover upon policies of accident insurance. The defenses were that certain statements made by plaintiff in his application for the policies with respect to his physical condition and other accident insurance and earning capacity were untrue.

      George R. Fearon for appellant.

      George W. O’Brien for respondent.
   Judgment in each action affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Guaranty Trust Company of New York, as Trustee of a Trust Fund under the Will of George P. Pollen, Deceased. Fritz L. Schmidt, Jr., Appellant; Elise M. Jewett et al., Respondents.
    (Submitted May 31, 1927;
    decided June 7, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 568.)


text:
    Mill Factors Corporation et al., Respondents, v. Louis Margolies et al., Copartners Doing Business under the Firm Name of Joseph L. Cahn & Company, Appellants.
    (Submitted May 31, 1927;
    decided June 7, 1927.)

      Appeal — unanimous reversal of order setting aside verdict and rein~ statement thereof — appeal to Court of Appeals without permission dismissed.

      Mill Factors Corp. v. Margolies, 219 App. Div. 783, appeal dismissed.
    Motion to dismiss an appeal from a judgment entered March 9, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which unanimously reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiffs and directed reinstatement of the said verdict.
    The motion was made upon the grounds that permission to appeal had not been granted and that appellants had failed to prosecute the appeal.

      Joseph Sterling for motion.

      Abraham, J. Halprin opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York ex rel. New York Title and Mortgage Company, Respondent, v. State Tax Commission, Appellant. The People of the State of New York ex rel. Bowery Savings Bank, Respondent, v. State Tax Commission, Appellant.
    (Argued May 31, 1927;
    decided June 14, 1927.)

      Tax — mortgage tax — recording tax improperly assessed on two mortgages executed to take place of blanket mortgage on two houses, between same parties and each covering portion of same property.

      People ex rel. New York T. di M. Co. v. State Tax Comm., 220 App. Div. 396, affirmed.

      People ex rel. Bowery Savings Bank v. State Tax Comm., 220 App. Div. 396, affirmed.
    Appeal, in each of the above-entitled proceedings, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 10, 1927, which annulled on certiorari a determination of the State Tax Commission that a certain mortgage owned by relator was not exempt from payment of a recording tax. A blanket mortgage was executed covering a plot of ground on which two buildings were being erected and the recording tax paid thereon. It contained a provision that upon completion of the buildings it should be divided into two separate mortgages each covering a portion of the premises. In accordance therewith two mortgages were afterwards made and delivered between the same parties. They were presented for record with an affidavit stating the facts and the request that they be recorded without paymeñt of an additional tax. This was denied.

      Albert Ottinger, Attorney-General (Henry S. Manley of counsel), for appellant.

      Henry M. Bellinger and L. L. Osborn for respondent.
   Order in each case affirmed, with costs; no opinion.

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


text:
    Joseph Haag, Appellant, v. The City of New York, Respondent.
    (Argued May 31, 1927;
    decided June 14, 1927.)

      Civil service - — municipal corporations — New Yorit city — retirement on reaching age of seventy not a bar to reappointment to city office.

      Haag v. City of New York, 220 App. Div. 704, affirmed.
    Appeal, by permission, from so much of an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 13, 1927, as affirmed an order of Special Term denying a motion by plaintiff to strike out the first defense contained in the answer. The action was to recover salary as assistant to the mayor of the city of New York. The defense was that plaintiff had been retired upon reaching the age of seventy years, pursuant to section 1710 of the charter of the city of New York and was ineligible to appointment to public office.
    The following question was certified:
    “ Is the first defense contained in the answer herein sufficient in law upon the face thereof? ”

      Isaac H. Levy and George Gordon Battle for appellant.

      George P. Nicholson, Corporation Counsel (Willard S. Allen, William E. C. Mayer and J. Joseph Lilly of counsel), for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of Littlejohn & Co., Inc., Appellant, against Charles H. Demarest, Inc., Respondent.
    (Argued May 31, 1927;
    decided June 14, 1927.)

      Arbitration — principal and agent — contracts of sale signed by agent of one of parties with provision for arbitration — separate letter from agent stating that disputes would be submitted to arbitration — agent not bound to submit question of its liability to arbitration.

      Matter of Littlejohn & Co., Inc.., v. Demarest, Inc., 218 App. Div. 703, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 15, 1926, which affirmed an order of Special Term denying a motion to compel the respondent herein to proceed to arbitration. The right to arbitration was claimed under the following letter:
    " CHARLES H. DEMAREST " 227 Water Street
    “ New York, Jan. 30, 1923.
    " Messrs. L. Littlejohn & Co., Inc.,
    "133 Front Street,
    " New York City:
    “Gentlemen.— In reply to your letters of January 26th and 27th, I am especially pleased that we have been able to do some business with your firm in Gambier and Pepper. In case of any question as to quality same to be submitted to arbitration in New York, should a private settlement not be agreeable to the shippers, and adjustments, if any due you on the shipments, we will settle with you here for any amount due you.
    “ Yours very truly,
    " CHARLES H. DEMAREST, INC.,
    " By C. H. D.”
    Respondent admitted the letter but alleged that in all negotiations and contracts set out in the petition it was the agent of a disclosed principal.

      Elmer E. Wigg and Brent W. Blythe for appellant.

      Reese D. Alsop for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of The Farmers Loan and Trust Company, as Substituted Trustee under the Will of Arthur L. Mason, Deceased. Charlotte H. Mason, as Administratrix of Arthur P. Mason, Deceased, Appellant; Henry E. Mason, Respondent.
    (Argued May 31, 1927;
    decided June 14, 1927.)

      Will — trust — direction for distribution of principal among heirs at law of son according to >Statute of Distribution — death of son leaving widow and one brother surviving — brother entitled to all of principal.

      Matter of Mason, 217 App. Div. 765, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 18, 1926, unanimously affirming a decree of the Kings County Surrogate’s Court settling the accounts of the substituted trustee and construing the will of Arthur L. Mason, deceased. Decedent, by his will, erected a trust for the benefit of his son and directed that at his death the principal be divided “ among the heirs at law of my said son according to the Statute of Distribution of the State of New York.” The son died leaving him surviving only his widow and one brother. The surrogate held that the brother was entitled to the whole amount of the principal fund.

      William H. Hamilton and Norman C. Conklin for appellant.

      Edmond B. Butler and Francis X. Carmody for respondent.
   Order affirmed, with costs payable out of the estate; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrew's, Kellogg and O’Brien, JJ. Absent: Lehman, J.


text:
    The City of New York, Appellant, v. Max Cohen, Respondent.
    (Argued May 31, 1927;
    decided June 14, 1927.)

      Farent and child — legitimacy — child born out of wedlock — marriage of parents — subsequent annulment of marriage — child illegitimate and paternal grandfather may not be compelled to contribute to its support.

      City of New York v. Cohen, 219 App. Div. 729, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 14, 1927, which reversed a judgment of the Court of Special Sessions of the city of New York affirming a judgment of a Magistrate’s Court directing the defendant to provide for the support and maintenance of an alleged grandchild. The child was born out of wedlock. The parents thereafter married but the marriage was subsequently annulled. The Appellate Division directed the discharge of the defendant on the authority of Matter of Moncrief (235 N. Y. 390).

      George P. Nicholson, Corporation Counsel (Willard S. Allen and J. Joseph hilly of counsel), for appellant.

      Harry Sacher for respondent.
   Judgment affirmed; no opinion.

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


text:
    William P. Riley, Appellant, v. Pierce Oil Corporation, Respondent.
    (Submitted June 6, 1927;
    decided June 14, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 152.)


text:
    The People of the State of New York ex rel. Joseph C. Stencil et al., Appellants, v. Henry Hull, as Sheriff of the County of Orange, Respondent.
    (Submitted June 6, 1927;
    decided June 14, 1927.)

      Appeal — failure to obtain permission to appeal and to file undertaking.

    Reported below, 219 App. Div. 793.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1927, which affirmed an order of Special Term dismissing writs of habeas corpus.
    The motion was made upon the ground that' permission to appeal had not been obtained and upon the further ground of failure to file the required undertaking.

      Elmer H. Lemon, District Attorney, for motion.

      Henry Hirschberg opposed.
   Motion granted and appeal dismissed unless within twenty days appellants comply with requirements of section 593 of the Civil Practice Act in which event motion will be denied, without costs.


text:
    Cornelius Lanahan, Respondent, v. Hugh J. Sheeran, as Receiver of New York Railways Company, Appellant.
    (Submitted June 13, 1927;
    decided June 14, 1927.)

      Appeal — motion to dismiss appeal denied.

    Reported below, 219 App. Div. 818.
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 1, 1927, affirming a judgment in favor of plaintiff entered upon a verdict.
    The motion was made upon the ground that no questions of law were presented for review.

      Thomas F. Franklin and Theodore H. Lord for motion.

      Ambrose Clogher opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements.


text:
    The People of the State of New York ex rel. James Speyer, Appellant, v. John F. Gilchrist et al., Constituting the State Tax Commission, Respondents.
    (Argued June 1, 1927;
    decided June 21, 1927.)

      Tax — income tax — amount paid in. settlement of claim of former partner for accounting — improperly deducted as business loss in computation of income tax.

      People ex rel. Speyer v. Gilchrist, 219 App. Div. 155, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 7, 1927, which unanimously confirmed, on certiorari, a determination of the State Tax Commission that relator is subject to an additional income tax for the year 1922. The relator agreed to pay a large sum of money to a former member of his firm in settlement of his claim for an accounting as to profits, past and prospective, and in consideration of the release of all his claims against the firm. The question was whether the amount paid as a first installment under said agreement might be deducted as a business loss or expense in computing his income tax.

      Henry W. Taft and Clarence Castimore for appellant.

      Albert Ottinger, Attorney-General (Henry S. Manley of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Charles H. Proffen, Respondent. George P. Nicholson, as Corporation Counsel of the City of New York, Appellant.
    (Argued June 2, 1927;
    decided June 21, 1927.)

      Municipal corporations — New York city — street closing — mandamus — peremptory order of mandamus to compel institution of proceedings^ to determine compensation to abutting owners.

      Matter of Proffen v. Nicholson, 219 App. Div. 704, modified.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 14, 1927, which unanimously affirmed an order of Special Term granting a motion for a peremptory order of mandamus to compel the corporation counsel of the city of New York to institute proceedings for the appointment of commissioners to determine the compensation due the petitioner, herein by reason of the closing and discontinuance of old Third avenue in the borough of The Bronx.

      George P. Nicholson, Corporation Counsel (Joel J. Squier and William B. R. Faber of counsel), for appellant.

      Frederick W. Hottenroth and Arthur D. Lyons for respondent.
   Order of the Appellate Division and that of Special Term modified by directing the entry of an alternative order of mandamus and as modified affirmed, without costs to either party in the Appellate Division or in this court; no opinion.

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


text:
    The People of the State of New York, Respondent, v. James De Marco, Appellant.
    (Argued June 2, 1927;
    decided June 21, 1927.)

      Crimes — receiving stolen property — •judgment of conviction affirmed.

      People v. De Marco, 220 App. Div. 743, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 7, 1927, which affirmed a judgment of the Orange County Court, rendered upon a verdict convicting the defendant of criminally receiving stolen property in the second degree.

      Henry Hirschberg for appellant.

      Elmer H. Lemon, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    William R. Schoonmaker, Respondent, v. Eugene D. Boyer et al., as Executors of Wilbur F. Randall, Deceased, Appellants.
    (Argued June 2, 1927;
    decided June 21, 1927.)

      Bills, notes and checks — action to recover on promissory note — defense of lack of consideration.

      Schoonmaker v. Boyer, 219 App. Div. 784, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 26, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover on a promissory note. The answer admitted the making and delivery of the note but denied that it was given for value.

      Charles Strauss and Eugene D. Boyer for appellants.

      A. B. Carrington, Arleigh Pelham and George D. Carrington for respondent.
   Judgment of Appellate Division and that of Trial Term reversed and complaint dismissed, with costs in all courts, on the ground that according to the uncontradicted evidence the note in suit was executed without consideration.

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


text:
    New York Yellow Cab Company Sales Agency, Inc., Appellant, v. West Manhattan Garage Corporation, Respondent.
    (Argued June 2, 1927;
    decided June 21, 1927.)

      Liens — garage beeper’s lien for storage, gasoline and oil superior to chattel mortgage for portion of purchase price of automobile.

      N. Y. Yellow Cab Co. Sales Agency, Inc., v. West Manhattan Garage Corp., 219 App. Div. 772, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 10, 1927, unanimously affirming a judgment in favor of defendant entered upon a verdict directed by the court. The action was in replevin to recover automobiles sold to third parties who gave chattel mortgages for the balance of the purchase price, it being alleged that default had been made in payments due. The defense was by the owner of the garage in which the cars were stored. It claimed a lien under section 184 of the Lien Law for storage of the cars and for gasoline and oil furnished, superior to that of plaintiff.

      H. H. Nordlinger, Samuel H. Hofstadter and Harold Riegelman for appellant.

      Leo M. Wieder and Samuel Wolbarst for respondent.
   Judgment affirmed, with costs. Held, that under section 184 of the Lien Law, the lien of the defendant is superior to the plaintiff’s mortgages.

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


text:
    The People of the State of New York, Respondent, v. Adam Nappi, Appellant.
    (Argued June 3, 1927;
    decided June 21, 1927.)

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

    Appeal from, a judgment of the Rensselaer County-Court, rendered December .18, 1926, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Frank S. Parmenter and John P. Judge for appellant.

      Frederick C. Filley, District Attorney (Philip J. Cirillo of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ.; O’Brien, J., votes for reversal and new trial on the ground that the trial court erroneously exercised its discretion in denying defendant’s motion for a new trial on the ground of newly-discovered evidence.


text:
    Albany Garage Company, Appellant, v. Alfred H. Munson et al., Respondents.
    (Argued June 3, 1927;
    decided June 21, 1927.)

      Real property — easements — deed — covenant — action to recover for breach of covenant of quiet enjoyment contained .in warranty deed — insufficient evidence of easement for sewage.

      Albany Garage Co v. Munson, 218 App. Div. 240, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 23, 1926, unanimously affirming a judgment in favor of defendants entered upon a decision of the court at a Trial Term without a jury. The action was to recover for an alleged breach of covenant. The complaint alleged that defendants conveyed to plaintiff certain lands by warranty deed containing the usual covenants of quiet enjoyment and that defendant had been evicted from a portion of the premises by reason df a sewer easement in the city of Albany extending over the premises. The trial court found that there was no sufficient evidence of an easement in favor of the city over the lands in question.

      William L. Visscher for appellant.

      G. E. Pritchard for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of George T. Brokaw, Appellant. Maurice Bloch, Appellant; Howard C. Brokaw et al., Respondents.
    (Argued June 3, 1927;
    decided June 21, 1927.)

      Real property — application by life tenant for permission to mortgage premises denied where consent of contingent remaindermen had not been obtained.

      Matter of Brokaw, 219 App. Div. 337, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 4, 1927, which reversed two orders of Special Term, one confirming the report of a referee and directing him to negotiate for and report respecting a proposed mortgage and the other directing the referee to execute and deliver a mortgage of premises at the northeast corner of Fifth avenue and Seventy-ninth street, in the borough of Manhattan, city of New York. The proceeding was brought by the fife tenant of the premises, under sections 67-71 of the Real Property Law, to obtain permission to mortgage the premises for the purpose of erecting a modern building thereon. The Appellate Division dismissed the petition on the ground that the consent of contingent remaindermen had not been obtained.

      Harry J. Ahlheim, Ambrose G. Todd and Alexander S. Rowland for George T. Brokaw, appellant.

      Maurice Bloch, attorney, in person.

      Yorke Allen for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Concetta Chilli et al., Appellants, v. Ignazia Divita, Respondent.
    (Argued June 3, 1927;
    decided June 21, 1927.)

      Negligence — landlord and tenant —• injury to tenant from fall on stairway — contributory negligence question for jury.

      Chilli v. Divita, 218 App. Div. 833, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 10, 1927, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff Concetta Chilli and for loss of services and expense alleged to have been sustained by plaintiff Placido Chilli through the negligence of defendant, their landlord, in failing to keep the stairs in a tenement house in repair. The complaint alleged that plaintiff Concetti Chilli in descending the stairs caught her foot in a defect in the stairs and fell receiving the injuries complained of. The Appellate Division reversed on the ground “ that the evidence fails to show that the plaintiff Concetta Chilli was in the exercise of due care in descending the stairway.”

      Leonard F. Fish and Samuel Kornbluth for appellants.

      M, D. Meeker, John P. Carson, Reginald V. Spell and William A. Earl for respondent.
   Order of Appellate Division reversed and judgment of Trial Term affirmed, with costs in this court and in the Appellate Division, on the ground that the question of contributory negligence was one of fact for the jury.

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


text:
    Louis Cherey et al., Respondents, v. Margaret McLaughlin, Appellant.
    (Argued June 3, 1927;
    decided June 21, 1927.)

      Contract — sale — specific performance — delivery of check of third person as down payment — dishonor of check and notice of rescission — check delivered as conditional, not as absolute payment.

      Cherey v. McLaughlin, 219 App. Div. 728, reversed.
    Appeal from a judgment, entered February 14, 1927 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 decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to compel specific performance of a contract for the sale of real property. The defense was that the contract provided for a down payment; that the check of a third party given by plaintiffs for the amount thereof and represented by them to be good was dishonored; that no part thereof had been paid and that defendant had notified plaintiff • of the rescission of said contract. The Appellate Division held that “ the acceptance of the check was payment to defendant, the evidence failing to show fraud or false representations in the giving of it.”

      Joseph J. Cunningham for appellant.

      Thomas T. Reilley, Albert J. Rifkind and Sidney Fertig for respondents.
   Judgment of the Appellate Division reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division, on the ground that the check for $750 was delivered as conditional, not as absolute payment.

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


text:
    The People of the State of New York, Respondent, v. Charles Albrecht, Appellant.
    (Argued June 6, 1927;
    decided June 21, 1927.)

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

    Appeal from a judgment of the Court of General Sessions of the Peace in the county of New York, rendered February 18, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

      William H. Pellet, Millard H. Ellison, Clarence H. Fay and Alexander Wolf for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. James Mason, Jr., Appellant.
    (Argued June 6, 1927;
    decided June 21, 1927.)

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

    Appeal from a judgment of the Court of General Sessions of the Peace in the county of New York, rendered March 21, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

      George Gordon Battle and Harvey J. Bresler for appellant.

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

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ.; Kellogg, J., dissents on the ground that the identity of the defendant was not established beyond a reasonable doubt.


text:
    John G. Cavanagh, Suing on Behalf of Himself and Other Stockholders of Robinson Amusement Company, Appellant, v. John Walters et al., Respondents.
    (Argued June 6, 1927;
    decided June 21, 1927.)

      Corporations — directors — stockholders’ action to have annulled resolutions of directors increasing salaries of officers.

      Cavanagh v. Walters, 218 App. Div. 787, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court, in the second judicial department, entered December 2, 1926, unanimously affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term in an action to have adjudged null and void certain resolutions of the board of directors of the Robinson Amusement Company increasing the salaries of officers of that company and requiring them to repay into its treasury moneys received pursuant to said resolutions.

      Vincent P. Donihee for appellant.

      John J. Curtin and Wesley S. Sawyer for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edna G. Holbrook, Respondent, v. John W. Shepard, as Executor of Richard H. Greene, Deceased, et al., Defendants, and Anna S. Greene et al., Appellants.
    (Argued June 7, 1927;
    decided June 21, 1927.)

      Will — gift of remainder “ to my grandchildren or child if there are any living ” —grandchild takes all to exclusion of children of deceased grandchild.

      Holbrook v. Shepard, 220 App. Div. 64, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial-department, entered April 5, 1927, which unanimously affirmed an interlocutory judgment of Special Term construing the will of William W. Greene, deceased. Testator by bis will gave bis property to his son for life and on his death “ to my grandchildren or child if there are any living if there are none living then to my legal heirs in a legal way.” At the death of the son there were surviving, heirs of testator, one grandchild and two children of a deceased grandchild. The trial court held that the grandchild took the entire estate.
    The following questions were certified:
    “ 1. Under the last will and testament of William W. Greene, deceased, did the remainder of bis estate vest in his two grandchildren, Marshall W. Greene and the plaintiff, at the death of the testator, William W. Greene?

      “ 2. Under the last will and. testament of William W. Greene, deceased, did the entire remainder of his estate vest absolutely in the plaintiff at the death of the life tenant, Richard Henry Greene?

      “ 3. In construing the last will and testament of William W. Greene, deceased, is the word ' child ’ in the sentence reading ‘ After the' death of my son R. H. Greene, I will it to go to my grandchildren or child if there are any living if there are none living then to my legal heirs in a legal way ’ to be construed as synonymous with the word ‘ grandchild? ’

      “ 4. Has the defendant Anna Schoonmaker Greene any right, title or interest in the estate of William W. Greene, deceased?

      “ 5. Has the defendant Mary Winslow Greene any right, title or interest in the estate of William W. Greene, deceased?

      “ 6. Has the defendant Richard Schoonmaker Greene any right, title or interest in the estate of William W. Greene, deceased? ”

      Richard T. Greene and Malcolm C. Law for appellants.

      Clarence De Witt Rogers for respondent.
   Judgment affirmed, with costs payable out of estate; second and third questions certified answered in the affirmative; fourth, fifth and sixth questions answered in the negative; first question not answered; no opinion.

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


text:
    The People of the State of New York ex rel. Joseph Lewis, Appellant, v. Frank P. Graves, Commissioner of Education of the State of New York, Respondent.
    (Submitted June 13, 1927;
    decided June 21, 1927.)
   Motion for reargument denied, with'ten dollars costs and necessary printing disbursements. (See 245 N. Y. 195.)


text:
    Kerr Steamship Co., Inc., Respondent, v. Radio Corporation of America, Appellant.
    (Submitted June 13, 1927;
    decided June 21, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 284.)


text:
    In the Matter of the Application of George Gardner, as Administrator of the Estate of Elizabeth M. Gardner, Deceased, Respondent, for a Judicial Construction of the Will of Blanche A. Thompson, Deceased. Friendship Hall Vacation Home, Inc., et al., Appellants; Farmers’ Loan and Trust Company, as Executor of Blanche A. Thompson, Deceased, et al., Respondents.
    (Submitted June 20, 1927;
    decided June 21, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 565.)


text:
    James D. McCauley, Appellant, v. Georgia Railroad Bank, Respondent.
    (Submitted June 20, 1927;
    decided June 21, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 245.)


text:
    Herbert Small, Suing on Behalf of Himself and All Other Bondholders and Creditors Similarly Situated, Plaintiff, Appellant and Respondent, v. Francis DeC. Sullivan and Others, Defendants, Appellants and Respondents.
    (Submitted Junr 20, 1927;
    decided June 21, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 344.)


text:
    Nellie T. McAvoy, Appellant, v. Sidney C. Schramme and Another, Respondents. Inwood Land and Improvement Company, Inc., and the City of New York, Defendants.
    (Submitted June 20, 1927;
    decided June 21, 1927.)
   Motion to amend remittitur denied, with ten dollars costs. (See 245 N. Y. 575.)


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Jacob Rosen, Appellant.
    (Submitted June 15, 1927;
    decided July 20, 1927.)

      Crimes — knowingly delivering quantity of commodity less than represented —judgment of conviction reversed.

      People v. Rosen, 220 App. Div. 744. reversed.
    ' Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 29, 1927, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of the crime of knowingly delivering a quantity of a commodity less than represented in violation of section 2411 of the Penal Law.

      Abraham H. Kesselman for appellant.

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for respondent.
   Per Curiam.

The defendant did not injure or defraud any person by misrepresenting the quantity of coal delivered, and was not guilty of the crime charged, although he may have been proven guilty of an attempt to commit such crime and might have been found guilty of such an attempt.

The judgment of the Appellate Division and that of the Court of Special Sessions should be reversed and a new trial ordered.

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

Judgment accordingly.


text:
    Erskine Hewitt, as Substituted Trustee under the Wilof Peter Cooper, Deceased, et al., Respondents, v. The Farmers Loan and Trust Company, as Executor of Peter C. Hewitt, Deceased, et al., Respondents, and Sarah C. Hewitt et al., Appellants.
    (Argued June 9, 1927;
    decided July 20, 1927.)

      Trusts — accounting —■ adjudication as to legitimacy of remainderman.

      Hewitt v. Farmers’ Loan & Trust Co., 218 App. Div. 838, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 7, 1927, unanimously affirming an interlocutory judgment entered upon the report of a referee adjudging that the infant respondent, Ann Cooper Hewitt, was the sole legitimate issue • of Peter Cooper Hewitt, deceased, and, therefore, entitled to the principal of the trust fund theretofore held by the trustee herein for the benefit of said Peter Cooper Hewitt with remainder subject to his appointment and in default thereof to his issue.

      Henry B. Closson and Milton C. Lightner for appellants.

      Edward H. Blanc and Edward M. Cameron, Jr., for Ann Cooper Hewitt, respondent.

      Clarence J. Shearn for Maryon J. Hewitt, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Gustavus W. Raynolds et al., Appellants, v. Browning, King & Company, Respondent, and Mary K. Stevens et al., Appellants.
    (Argued June 9, 1927;
    decided July 20, 1927.)

      Trust — lease — provision in will creating trust authorizing trustee to lease land for term extending beyond duration of trust — lease by trustee with provision for renewal — declaratory judgment that lessee is entitled, to renewal by remaindermen.

      Raynolds v. Browning, King & Co., 217 App. Div. 443, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 20, 1926, unanimously affirming a judgment entered upon a decision of the court on trial at Special Term in an action upon a lease made by a testamentary trustee to obtain a declaratory judgment as to whether the tenant is entitled to a renewal by the remaindermen after termination of the trust. By the will the trustee was authorized to lease the property “ for a term extending beyond the duration of said trust,” In pursuance to such power he leased the premises to defendant Browning, King & Company for a term of twenty-one years with a right to a renewal for a further term of twenty-one years.

      Thomas M. Healy for plaintiffs, appellants.

      Jabish Holmes for Kate S. Stevens et al., defendants, appellants.

      Levi S. Hulse for Nicholas Hidden, defendant, appellant.

      Henry D. Merchant and Abel Merchant, Jr., for Henrietta G. Cattapani, defendant, appellant.

      Harold Swain and Arthur H. Indell for Title Guarantee and Trust Company, as committee.

      Charles P. Northrop and Clarence E. Thornall for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Austin Nichols & Co., Inc., Appellant, v. Compania Trasatlantica, Respondent.
    (Argued June 10, 1927;
    decided July 20, 1927.)

      Carriers — negligence — action to recover for loss of merchandise through leakage — exemption in bill of lading of liability therefor — erroneous submission to fury in absence of evidence of negligence.

      Nichols & Co., Inc., v. Compania Trasatlantica, 213 App. Div. 660, affirmed.
    Appeal from a judgment, entered January 7, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover for loss of olive oil shipped by plaintiff on one of defendant’s steamers from Malaga, Spain, to New York. It was alleged that the containers were damaged and broken through the negligence of defendant in loading, stowing, transporting and discharging the merchandise. The answer set up as defenses clauses in the bill of lading exempting defendant from liability for breakage or leakage. The Appellate Division held that there was no evidence in the record of negligence on the part of defendant, that the damage to plaintiff’s merchandise fell within the exceptions of the bill of lading and that it was erroneous to submit the question of negligence to the jury.

      Wilson E. Tipple and Adolph Hansen for appellant.

      John W. Crandall and H. Victor Crawford for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Daniel W. Shoyer et al., Copartners under the Firm Name of D. W. Shoyer & Co., Respondents, v. Edmund Wright-Ginsberg Co., Inc., Appellant.
    (Argued June 13, 1927,
    decided July 20, 1927.)

      Contract —factors — action to recover from factor damage caused by its report as valid sales purchases which were never completed.

      Shoyer v. Wright-Ginsberg Co., Inc., 219 App. Div. 773, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 14, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover from defendant as factors the amount of damage to plaintiff arising from its reporting as valid sales purchases which were never completed, thereby causing plaintiff to unnecessarily manufacture goods. (See 240 N. Y. 223.)

      Gerald B. Rosenheim for appellant.

      I. Maurice Wormser and Karl W. Kirchwey for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Musical Mutual Protective Union, Appellant, v. Joseph N. Weber, Individually and as President of the American Federation of Musicians et al., Respondents.
    (Argued June 13, 1927;
    decided July 20, 1927.)

      Associations — action to set aside expulsion of plaintiff as local from federation of musicians.

      Musical M. P. Union v. Weber, 218 App. Div. 764, modified.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 6, 1926, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action was brought to procure a decree setting aside the expulsion of the plaintiff as a local of the American Federation of Musicians, directing reinstatement of plaintiff as a member of said federation and to annul the charter of a local organized to succeed the plaintiff. The action was based on an alleged conspiracy of the individual defendants to wreck and destroy the plaintiff by means of coercive, arbitrary and lawless acfs.

      Louis Marshall, Samuel Untermyer, Irwin Untermyer, James Marshall and Louis Kunen for appellant.

      Samuel Seabury, Charles L. Hof mom, Henry A. Friedman and George Trosk for respondents.
   Judgment of Appellate Division and that of Special Term modified by 'deducting from the judgment of the Special Term the extra allowance therein granted and as modified affirmed, with costs to the respondents; no opinion.

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


text:
    In the Matter of the People of the State of New York, Respondent, v. Isaac G. Johnson and Company, Appellant.
    (Argued June 14, 1927;
    decided July 20, 1927.)

      Eminent domain — condemnation proceedings — refusal to make award for good will or for personal property used in business.

      Matter of People v. Johnson & Co., 219 App. Div. 285, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 23, 1927, in so far as it affirmed an order of Special Term confirming the report of commissioners refusing to make any award to defendant for good will and in so far as it reversed that part of the order of Special Term as amended the report of commissioners by adding thereto the stipulated amount of damage to personal property necessarily in use in the conduct of defendant’s business at the time of institution of condemnation proceedings, with interest. The proceeding was brought under chapter 414 of the Laws of 1913 to acquire lands and lands under water and cede the same to the United States for the purpose of straightening the Harlem Ship Canal.

      Martin Conboy, Morgan J. O’Brien, Harry B. Chambers and John Jay McKelvey for appellant.

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

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


text:
    William Pollak, Appellant, v. John Dapper, Respondent.
    (Argued June 14, 1927;
    decided July 20, 1927.)

      Contract — specific performance — memorandum of sale of land providing “ terms to arrange upon the signing of the contract ” may not be specifically enforced.

      Pollak v. Dapper, 219 App. Div. 455, affirmed.
    Appeal from a judgment, entered March 21, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint in an action to compel specific performance of an alleged contract for the sale of land. The memorandum relied upon stated “ terms to arrange upon the signing of the contract.”' The Appellate Division held that the writing was not a complete contract that might be specifically enforced.

      Henry W. Unger and A. Georges Sidelle for appellant.

      Joseph Gazzam and Patrick J. McGrath for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Beatrice Feigenbaum, an Infant, by Davis Feigenbaum, Her Guardian ad Litem, Respondent, v. Narragansett Stables Co., Inc., Defendant, and John H. Naughton et al., Appellants.
    (Argued June 14, 1927;
    decided July 20, 1927.)

      Corporations — directors — distribution of assets without making provision for payment of creditors — action by creditor to compel directors to account.

      Feigenbaum v. Narragansett Stables Co., Inc., 219 App. Div. 729, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 21, 1927, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. Plaintiff recovered a judgment against defendant corporation for personal injuries received through its negligence. Execution was returned unsatisfied. On supplementary proceedings it appeared that subsequent to plaintiff’s injury the corporation ceased doing business but was never legally dissolved and that appellants herein, the only stockholders, directors and officers of the corporation, divided the assets between them. This action was brought to compel such appellants to account for sufficient of the assets to pay the plaintiff’s judgment.

      James G. Purdy and Arthur K. Wing for appellants.

      Anton Gronich and Abraham S. Keilson for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Percival Wilds, as Trustee in Bankruptcy of Winfield S. Norris, Trading as Scott Norris & Company, Appellant, v. Lebanon National Bank, Respondent.
    (Argued June 14, 1927;
    decided July 20, 1927.)

      Banks and banking — fraud — deposit by manager of business of checks drawn to order of firm in bank to account of dummy corporation — withdrawal of such funds and transfer thereof to his own use. — liability of bank therefor.

      Wilds v. Lebanon Nat. Bank, 219 App. Div. 597, affirmed.
    Appeal from a judgment, entered April 9, 1927, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The suit is brought by a trustee in bankruptcy of an insolvent who trading as Scott Norris & Company ran a business under that name. One Carlisle Rowntree was the manager of the business and had a power of attorney given by the bankrupt which authorized him to draw and indorse checks for legitimate purposes of the business. The' complaint alleged that Rowntree operated this concern for his own profit as a bucket shop; and that for the purpose of converting to his own use moneys of Scott Norris & Company, in fraud of said Norris and his creditors, he indorsed checks drawn by customers of Scott Norris & Company and deposited them in the defendant bank to the account of Peabody & Adams, a dummy corporation, which he had formed, and thereafter withdrew the funds and used them for his own purposes. The Appellate" Division held that the bank was a mere depositary and the checks being drawn by a person authorized to make withdrawals, it was not liable.

      Caruthers Ewing and Tracy S. Voorhees for appellant.

      John E. Joyce and Jeremiah F. Connor for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    J. R. Mayers Co., Inc., Appellant, v. The W. F. Powers Company, Respondent.
    (Argued June 15, 1927;
    decided July 20, 1927.)

      Contract — money had and received— agreement permitting subcontractor to collect direct for merchandise furnished under main contract — acceptance by subcontractor as part payment for amount due under contract of a sum in cash and a participating certificate ■— action by contractor to charge subcontractor with amount of certificate as cash received.

      Mayers Co., Inc., v. Powers Co., 218 App. Div. 578, affirmed.
    Appeal from a judgment, entered December 24, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint. Plaintiff having a contract to furnish calendars to a corporation sublet the contract to defendant under an agreement that plaintiff should collect the moneys due from the corporation and pay the same to defendant up to the amount due to it and retain the balance for its compensation. The agreement also provided that defendant might, if it deemed it necessary, collect direct from the corporation, accounting to plaintiff for any excess collected over the amount due it. The corporation became financially involved and its affairs were taken over by a creditors’ committee with which defendant filed a claim and received in cash a sum of money and a participating certificate in payment of the indebtedness of the corporation to plaintiff. Defendant thereupon paid to plaintiff the excess of the amount received over the amount due to it. Plaintiff brought this action as for money had and received and sought to charge defendant with the amount of the participating certificate as cash received, having refused to accept the certificate although duly tendered to it by the defendant.

      Frederick Zorn and Joseph Kahn for appellant.

      E. V. Conwell and Clinton H. Blake, Jr., for respondent.
   Judgment affirmed, with costs-; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Henry Stutzenstein, Appellant.
    (Argued June 15, 1927;
    decided July 20, 1927.)

      Crimes — robbery and larceny —judgment of conviction affirmed.

      People v. Stulzcnstein, 219 App. Div. 792, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1927, which affirmed a judgment of the Nassau County Court, rendered upon a verdict convicting the defendant of the crimes of robbery in the first and second degrees and grand larceny in the second degree.

      Ely Rosenberg and Cyril S. Landan for appellant.

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

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


text:
    Gerald M. Livingston et al., as Executors of Crawford Livingston, Deceased, Appellants, v. Herbert V. Falk, Respondent, and Charles R. Dalgleish, Appellant.
    (Argued June 15, 1927;
    decided July 20, 1927.)

      Contribution — judgment against three meinbers of a stockholders’ committee in action to recover overpayment for their services — controversy as to amount to be paid by each.

      Livingston v. Falk, 219 App. Div. 717, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 28, 1927, in favor of defendant, respondent, upon the submission of a controversy under sections 546-548 of the Civil Practice Act. Plaintiffs’ testator and the two defendants were members of a stockholders’ committee which took possession of and reorganized a certain corporation, paying themselves for their services by awarding to themselves various amounts of the preferred and common stock of the new company. Thereafter the new company, alleging that they had been overpaid, brought an action against them and recovered judgment in a substantial amount. The controversy was as to the amounts they should severally contribute towards payment of this judgment.

      John Preston Phillips for plaintiffs, appellants.

      Harold B. Elgar for defendant, appellant.

      William L. Wemple for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Fannie Gellis, as Administratrix of the Estate of Benjamin Gellis, Deceased, Respondent, v. Ahneman & Younkheere, Inc., Defendant, and Jacob Benovitz, Appellant.
    (Argued June 15, 1927;
    decided July 20, 1927.)

      Negligence — motor vehicles — passenger on motor truck struck by projecting timber on preceding truck.

      Gellis v. Ahneman & Younkheere, Inc., 218 App. Div. 829, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 29, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiffs’ intestate alleged to have been occasioned through the negligence of defendants. Intestate was riding as a passenger southerly on Eighth avenue in the city of New York on the front seat of an automobile truck. Preceding it was another truck carrying lumber, a piece of which projected from the rear a distance of seven feet and six inches. At Thirty-fifth street the preceding truck stopped suddenly and the driver of the truck on which intestate was driving was not able to stop it until the projecting board crashed through the windshield and striking intestate inflicted injuries from which he died.

      Walter G. Evans and Grattan B. Shults for appellant.

      Ralph G. Barclay, Morris Hillquit and Louis Rothbard for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Jacob Mendelson et al., Copartners under the Name of Mendelson Bros. & Siff, Respondents, v. The State of New York, Appellant.
    (Argued June 16, 1927;
    decided July 20, 1927.)

      State — negligence — filling of flood channels — liability for loss of property through inundation.

      Mendelson v. State of New York, 218 App. Div. 210, affirmed.
    Appeal from a judgment, entered January 17, 1927, upon'an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed a judgment of the Court of Claims dismissing the claim herein and directed judgment in favor of the claimants. The claim was for damage to plaintiffs’ property caused by the collapse of the building occupied by them caused, as alleged, by flood waters precipitated against it, through the filling by the State of flood channels in connection with the construction of the Barge canal.

      Albert Ottinger, Attorney-General (Albert J. Danaher and Joseph B. Mulholland of counsel), for appellant.

      Arthur E. Sutherland and Joseph Sterling for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Mary Walker, Respondent, v. Realty Managers, Inc., Appellant, Impleaded with Others.
    (Argued June 15; 1927;
    decided July 20, 1927.)

      Negligence — building — failure to erect shed over sidewalk extending to curb —■ liability of owner for injury to pedestrian struck by board falling from building.

      Walker v. Realty Managers, Inc., 218 App. Div. 829, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 28, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by-plaintiff through the negligence of defendant. Plaintiff, while crossing to the northeast comer of Fifth avenue and Thirty-sixth street in the borough of Manhattan was struck on the head by a piece of board which fell from a building under construction at that comer and received the injuries complained of. The owner of the building was held liable for failure to erect a shed extending from the building line to the curb over the sidewalk adjacent to the building.

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

      James G. Purdy for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Yetta Schulman, Respondent, v. Job E. Hedges, as Receiver of New York Railways Company, Defendant, and Joseph Tino & Co., Inc., Appellant. Moritz Schulman, Respondent, v. Job E. Hedges, as Receiver of New York Railways Company, Defendant, and Joseph Tino & Co., Inc., Appellant.
    (Argued June 17, 1927;
    decided July 20, 1927.)

      Negligence — motor vehicles — passenger on trolley car injured from collision with auto truck.

      Schulman v. Hedges (2 cases), 219 App. Div. 782, affirmed.
    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 February 26, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff Yetta Schulman through the negligence of defendants, and in an action by her husband to recover for loss of services and expense by reason of such injuries. Plaintiff Yetta Schulman while riding on a trolley car was injured through a collision between the car and defendant, appellant’s auto truck.

      Everett W. Bovard, Clarence E. Meller and Norman G. Hewitt for appellant.

      Albert Adams and Leon Sanders for respondent.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    Douglas Robinson, Appellant, v. Abbie C. Bell, as Administratrix of the Estate of Horace S. Bell, Deceased, Defendant, and Elizabeth H. Orth, Respondent.
    (Argued June 17, 1927;
    decided July 20, 1927.)

      Title —■ action to determine title to certificate obtained by broker through false representations and placed by Ms clerk in envelope addressed to customer who had previously ordered and paid for a certificate.

      Robinson v. Bell, 217 App. Div. 801, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 6, 1926, unanimously affirming a judgment in favor of defendant-respondent, entered upon a decision of the court at a Trial Term without a jury. The action was to recover an interim certificate entitling the holder to a bond when issued. Plaintiff had purchased from defendant’s intestate, who was a stockbroker, and died insolvent, one certificate and paid for the same though he had not received it. Thereafter intestate through fraudulent representations induced defendant-respondent to deliver to him twenty such certificates which he placed in a safe in his office. The day before the death of intestate a clerk in his office removed one of the certificates from the safe and placed it with a receipt to be signed by plaintiff in an envelope addressed to him and placed it in a box where it was found after the death of intestate. The trial court held that plaintiff was not a purchaser for a present consideration and awarded to defendant-respondent possession of the certificate.

      John F. O’Brien for appellant.

      Thomas F. McDermott for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Town of Greenburgh, Appellant, v. Westchester Lighting Company, Respondent. (Actions Nos. 1 and 2.)
    (Argued June 20, 1927;
    decided July 20, 1927.)

      Municipal corporations — injunction — gas holders — actions to enjoin erection and maintenance of gas holder.

      Town of Greenburgh v. Westchester Lighting Co. (2 cases), 217 App. Div. 263, 781, affirmed.
    Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 13, 1926, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. The actions were to enjoin the erection and maintenance by the defendant of a gas holder, upon the ground that it was an unlawful structure, because built and maintained without first obtaining a permit therefor from the plaintiff’s town •board, in accordance with certain regulatory health ordinances.

      Julius Henry Cohen, Bernard Hershkopf, Ernest F. Griffin and Theodore B. Richter for appellant.

      Chauncey B. Garver, John A. Garver and Henry R. Barrett for respondent.
   Judgment in each case affirmed, with costs. Held that the gas tank was properly constructed under ordinance No. 1 and a right to injunctive relief under ordinance No. 2 was not established.

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


text:
    James Stewart & Company, Inc., Respondent, v. State of New York, Appellant.
    (Argued June 21, 1927;
    decided July 20, 1927.)

      State —• contract — claim for variance between material to be excavated as indicated on plans and that actually encountered.

      Stewart & Co., Inc., v. State of New York, 218 App. Div. 810, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 3, 1926, unanimously affirming a judgment in favor of plaintiff entered upon an award of the Court of Claims. The claim arose out of a Barge canal contract for excavation at Hinmansville Cut '.and arose from a variance between the character of the material to be excavated as indicated by the plans and that actually encountered in the performance of the work.

      Albert Ottinger, Attorney-General (Albert J. Danaher and James Gibson of counsel), for appellant.

      Almuth C. Vandiver for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of William D. Roddy, Appellant, against George V. McLaughlin, as Police Commissioner of the City of New York and as Trustee and Treasurer of the Police Pension Fund, Respondent.
    (Argued June 20, 1927;
    decided July 20, 1927.)

      New York city — police — pension ■ — retirement of member of police force with grade of detective — order subsequently modified and member retired as patrolman — application for mandamus io compel payment of pension as fixed by first order denied.

      Matter of Roddy v. McLaughlin, 219 App. Div. 490, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 14, 1927, which affirmed an order of Special Term denying a motion for a peremptory order of mandamus to compel defendant to pay to petitioner an annual pension in an amount fixed by an order of Police Commissioner Enright retiring the petitioner with the rank of first grade detective. After defendant became police commissioner he made an order modifying the former order and retiring the petitioner with the rank of first grade patrolman, and at a lower pension.

      Albert Conway and Denis M. Hurley for appellant.

      George P. Nicholson, Corporation Counsel (Joseph P. Reilly of counsel), for respondent.
   Order affirmed, without costs, on authority of Matter of O’ Neil v. Waldo (212 N. Y. 567); no opinion.

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


text:
    Donna Abt, Respondent, v. Buffalo and Erie Railway Company, Appellant. Howard G. Abt, Respondent, v. Buffalo and Erie Railway Company, Appellant.
    (Argued June 21, 1927;
    decided July 20, 1927.)

      Negligence — railroads — passengers — injury to passenger through collision of two cars.

      Abt v. Buffalo & Erie By. Co. (2 eases), 218 App. Div. 814, affirmed.
    Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 2, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The first action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The second, by the husband of the plaintiff in the first action, was to recover for loss of services and expense arising from her injuries. The injuries were received as the result of a collision between the car in which plaintiff was riding as a passenger and another car, both belonging to defendant.

      Thomas R. Wheeler and William M. Fay for appellant.

      Dana L. Spring for respondents.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    Rebecca Kossower, as Administratrix of the Estate of Isaac Kossower, Deceased, Respondent, v. Keren Corporation, Appellant.
    (Argued June 21, 1927;
    decided July 20, 1927.)

      Negligence — elevators — death from fall down elevator shaft.

      Kossower v. Keren Corp., 219 App. Div. 780, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 23, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate some twenty minutes after delivering meat to one of defendant’s tenants on the third floor of its apartment house was found dead at the bottom of the elevator shaft. It was shown that if the doors to the shaft were properly closed they could not be opened from the outside.

      William Dike Reed and William B. Shelton for appellant.

      Alfred M. Bailey and Moses Feltenstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Charles F. Baldwin et al., Respondents, v. Henry W. Schoonmaker et al., Appellants.
    (Argued June 22, 1927;
    decided July 20, 1927.)

      Appeal — order of Appellate Division restraining arrest on execution against person pending appeal — appeal to Court of Appeals dismissed.

      Baldwin v. Schoonmaker, 220 App. Div. 747, appeal dismissed.
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 11, 1927, which granted a motion by defendants for an order restraining their arrest on an execution against the person pending the hearing and determination of an appeal to the Appellate Division.

      James M. E. O’Grady and James D. Harris for appellants.

      Paul Folger for respondents.
   Appeal dismissed, with costs; no opinion.

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


text:
    Redondo Steamship Company, Inc., Appellant, v. Irving Bank-Columbia Trust Company, Respondent, Impleaded with Others.
    (Argued June 22, 1927;
    decided July 20, 1927.)

      Banks and banking — assignment — setoff — action to recover balance of special account assigned to plaintiff — offset for amount of note held by bank indorsed by assignor.

      Redondo S. S. Co., Inc., v. Irving Bank-Columbia Trust Co., 219 App. Div. 837, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 18,1927, unanimously affirming a judgment in favor of defendant-respondent, entered upon a decision of the court on trial at Special Term. The action was brought to recover the balance of a special account deposited with the bank on March 21, 1923, in the name of “ Susquehanna Line, Inc., special account,” the complaint alleging that the fund at the time of its deposit and ever since was the property of Redondo Steamship Company, Inc., and alleging a formal assignment of the fund by Susquehanna Line, Inc., to Redondo Steamship Company, Inc., in recognition of the Redondo Company’s rights, on June 2, 1924. The bank, answering, asserted an offset in the bank’s favor of the amount unpaid upon a note held by it, made by Auditore Contracting Co., Inc., indorsed by Susquehanna Line, Inc., and Joseph G. Stockham and guaranteed by Frank Auditore, payable December 11, 1923. The trial court allowed the offset in favor of the bank.

      Edward H. Wilson and John J. Kean for appellant.

      Harold S. Rankine and Guthrie B. Plante for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of Crossing the Tracks of the Staten Island Rapid Transit Railway Company, Appellant. The Transit Commission of the State of New York, Respondent. (Two proceedings.)
    (Argued June 22, 1927;
    decided July 20, 1927.)

      Railroads -— grade crossings — constitutional law — authority of Transit Commission to direct elimination of grade crossings.

      Matter of Staten Island R. T. Ry. Co., 220 App. Div. 80, affirmed.
    Appeal, in each of the above-entitled proceedings, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 18, 1927, which affirmed an order of the Transit Commission directing the elimination of grade crossings. The appellant contended that the orders should be set aside because based upon the theory that the Commission is authorized to require the ehmination of any grade crossing merely because it is a grade crossing and because there is an element of danger in every such crossing; because unsupported by the evidence; because arbitrary and unreasonable and because in conflict with the due process clauses of the State and Federal Constitutions and with the commerce clause of the Constitution of the United States and with various acts of Congress passed thereunder.

      Frederick H. Wood, William W. Robison and H. Struve Hensel for appellants.

      Clarence M. Lewis and Frank C. Bowers for Transit Commission, respondent.

      George P. Nicholson, Corporation Counsel (Vincent Victory of counsel), for City of New York, respondent.
   Orders affirmed, with costs; no opinion.

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


text:
    Garrett B. Clayton, as Administrator of the Estate of Taylor S. Clayton, Deceased, Respondent, v. Tottenville Shipyard Company, Appellant.
    (Argued June 22, 1927;
    decided July 20, 1927.)

      Negligence — master and servant — drowning of ship carpenter while working on float alongside vessel.

      Clayton v. Tottenville Shipyard Co., 219 App. Div. 742, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate through drowning alleged to have been occasioned by the negligence of defendant, his employer. Intestate, a ship carpenter, was working on a float repairing a barge to which the float was fastened by ropes tied to ring bolts at its corners. After the passage of two tugs creating large swells it was observed that one of the ring bolts had pulled out permitting the float to drift from the barge and that intestate was in the water sinking.

      Burl L. Rich and James B. Henney for appellant.

      Joseph B. Handy and Esli L. Sutton for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret Garrett, Respondent, v. Supreme Tribe of Ben Hur, Appellant.
    (Argued June 22, 1927;
    decided July 20, 1927.)

      Benefit associations — insurance — action to recover upon certificate of life insurance — defense of misrepresentation in application.

      Garrett v. Supreme Tribe of Ben Hur, 219 App. Div. 413, affirmed.
    Appeal from a judgment, entered January 12, 1927, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover upon a certificate of life insurance issued by defendant, a fraternal benefit association. The defense was that in the application for insurance deceased misrepresented the date when he had last consulted a physician.

      Irving W. Cole and John J. Brown for appellant.

      Ruth Van Norman and Wallace Thayer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of George Neuberger, Respondent, for an Accounting by Bertha Neuberger, His General Guardian. Mary A. L. Hahn et al., Individually and as Executors of Christian Tymann, Deceased, et al., Appellants.
    (Submitted June 22, 1927;
    decided July 20, 1927.)

      Guardian and ward — accounting — judicial settlement — motion for dismissal of proceeding as to sureties on bond denied.

      Matter of Neuberger, 219 App. Div. 730, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 14, 1927, which affirmed a decree of the Queens County Surrogate’s Court judicially settling the accounts of Bertha Neuberger, as general guardian, and denying a motion by a surety and representatives of a deceased surety on her bond for a dismissal of the proceedings! as to them.

      Clarence Edwards for appellants.

      Michael J. Joyce for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Isaac Meyers, Respondent, v. The Anwal Realty Corporation, Appellant.
    (Submitted June 22, 1927;
    decided July 20, 1927.)

      Appeal — dismissed when taken from order of Appellate Division and not from judgment entered thereon.

      Meyers v. Anwal Realty Corp., 218 App. Div. 762, appeal dismissed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 19, 1926, affirming a judgment in favor of plaintiff entered upon a verdict.

      H. M. Schaap for appellant.

      Morse S. Hirsch for respondent.
   Appeal dismissed, with costs, on the ground that it is improperly taken from the order of the Appellate Division and not from the judgment entered thereon; no opinion.

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


text:
    D. & G. Girl Coat Co., Inc., Respondent, v. Mary Zabelicky et al., Appellants, Impleaded with Others.
    (Submitted June 22, 1927;
    decided July 20, 1927.)

      Pleading — action to foreclose mortgage — answer stricken out as sham and frivolous.

      D. & G. Girl Coat Co., Inc., v. Kafka, 218 App. Div. 607, affirmed.
    Appeal from a judgment, entered March 21, 1927, upon an order of the Appellate Division of the Supreme Court ’ in the first judicial department, which reversed an order of Special Term denying a motion to strike out the answer of defendants, appellants, and for judgment on the pleadings and granted said motion. The action was to foreclose a second mortgage on real property. The assignees of a third mortgage alone answered. Plaintiff moved to strike out their answer as sham and frivolous.

      Max Rockmore for appellants.

      Gerson C. Young and Abraham M. Weinberg for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Katherina Von Bargen, Appellant, v. Isidore J. Ginsberg, Respondent.
    (Submitted June 22, 1927;
    decided July 20, 1927.)

      Vendor and purchaser — contract — specific performance — contract for sale of city lot described by street 'and number and showing quantity of land to be conveyed — specific performance denied for variance in quantity.

      Von Bargen v. Ginsberg, 218 App. Div. 545, affirmed.
    Appeal from a judgment, entered December 30, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to compel specific performance of a contract to purchase real property described therein as “ Property known as and by the street number 1441 Bedford Avenue, being an eight-family brick and stone apartment building on a' lot about 33 by 95, irregular.” On the trial it was shown that the dimensions of the plot were thirty-three feet one and one-quarter inches fronting on Bedford avenue, ninety-three feet ten inches in depth on the northerly side, ninety-eight feet five and three-quarters inches in depth on the southerly side, both north and south dimensions tapering to the rear where the width was but fourteen feet one and one-half inches. The Appellate Division held that the quantity of land which the plaintiff was actually able to convey was not a compliance with the contract.

      Meier Steinbrink and Harold M. Kennedy for appellant.

      Clarence G. Bachrach and. Herman S. Bachrach for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Robert J. Murphy, as Trustee in Bankruptcy of Thomas F. Vogt, Inc., Appellant, v. William J. Gucker, Respondent.
    (Submitted June 22, 1927;
    decided July 20, 1927.)

      Mortgage — validity of chattel mortgages — complaint dismissed in action by trustee in bankruptcy to recover value of automobile seized and sold under chattel mortgages.

      Murphy v. Gucker, 220 App. Div. 809, affirmed.
    Appeal from a judgment, entered May 20, 1927, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff, entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint. The action was brought by the trustee in bankruptcy of an automobile dealer to recover the value of automobiles seized and sold by defendant under chattel mortgages held by him. The Appellate Division directed judgment for defendant on authority of Utica Trust & Deposit Co. v. Decker (244 N. Y. 340).

      Nicholas J. Weldgen for appellant.

      George J. Skivington for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Samuel A. Nash et al., Individually and as Executors of Samuel Y. Nash, Deceased, Appellants, v. Michael J. Loughman et al., Constituting the State Tax Commission, Respondents.
    (Submitted June 22, 1927;
    decided July 20, 1927.)

      Constitutional law — tax — transfer tax — constitutionality of statute imposing transfer tax upon real property in this State belonging to non-resident decedent.

      People ex rel. Nash v. Loughman, 220 App. Div. 549, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 11, 1927, which confirmed on certiorari a determination of the State Tax Commission assessing a transfer tax upon the estate of Samuel Y. Nash, deceased, a resident of Massachusetts, in so far as it consisted of real property within the State of New York, pursuant to article 10-A of the Tax Law. The appellants contended that the statute was violative of the State and Federal Constitutions.

      Edward H. Pattison, Joseph F. McCloy and John L. McMaster for appellants.

      Albert Ottinger, Attorney-General (Henry S. Manley of counsel), for respondents.
   Order of Appellate Division reversed and determination of State Tax Commission annulled, with costs in all courts, on opinion in Smith v. Loughman (245 N. Y. 486).

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


text:
    Edith Dornbusch, Respondent, v. William G. Dornbusch, Appellant.
    (Submitted June 20, 1927,
    decided July 20, 1927.)

      Appeal — motion to dismiss appeal denied.

    Reported below, 220 App. Div. 759.
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 31, 1927, affirming a judgment in favor of plaintiff entered upon a verdict.
    The motion was made upon the grounds that the exceptions were frivolous and presented no question for review.

      Benjamin Frindel for motion.

      Joseph R. Swan opposed.
   Motion denied, with ten dollars costs.


text:
    American Surety Company of New York, Appellant, v. Philippine National Bank, Respondent.
    (Submitted June 22, 1927;
    decided July 20, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 245 N. Y. 116.)


text:
    Wilbur R. Schoonmaker, Respondent, v. Eugene D. Boyer et al., as Executors of Wilbur F. Randall, Deceased, Appellants.
    (Submitted July 20, 1927;
    decided July 20, 1927.)
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: “ Said judgments affirmed as to dismissal of defendants' counterclaim, with costs.” (See 245 N. Y. 611.)


text:
    Exchange Bakery and Restaurant, Inc., Respondent, v. Louis Rifkin, Individually and as President of Waiters and Waitresses Union Local No. 1, et al., Appellants.
    (Submitted July 20, 1927;
    decided July 20, 1927.)
   Motion for reargument denied, without costs. (See 245 N. Y. 260.)