text:
    The People of the State of New York, Respondent, v. Tony Parretti, Appellant.

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

    (Argued November 18, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Supreme Court, rendered July 1, 1926, at a Trial Term for the county of Kings, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Robert H. Elder and Otho S. Bowling for appellant.

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

Concur: Cardozo, Pound, McLaughlin, Crane and Andrews, JJ. Dissenting: Lehman, J., on ground witness Desiderio was an accomplice as a matter off law. Absent: His cock, Ch. J.


source: Caselaw Access Project

license: Public Domain

text:
    Petra Egenes, as Administratrix of the Estate of Berger M. O. Egenes, Deceased, Respondent, v. Morse Dry Dock and Repair Company, Appellant, Impleaded with Others.

      Negligence — stevedore killed by explosion on vessel caused by use of acetylene torch in vicinity of cargo of gasoline.

      Egenes v. Morse Dry Dock & Repair Co., 216 App. Div. 812, affirmed.
    (Argued November 19, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 23, 1926, 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, appellant. Plaintiff’s intestate, a stevedore, was killed by an explosion on board a steamship where he was working. It was alleged that the explosion was caused by the use of an open flame acetylene torch by employees of defendant, appellant, in the immediate vicinity of a large number of cases containing gasoline in tin cans which formed a portion of the cargo.

      John Vernon Bouvier, Jr., and Harold R. Medina for appellant.

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

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


text:
    Sophie Torp, as Administratrix of the Estate of Thomas Torp, Deceased, Respondent, v. Morse Dry Dock and Repair Company, Appellant, Impleaded with Others.

      Negligence — stevedore killed by explosion on vessel caused by use of acetylene torch in vicinity of cargo of gasoline.

      Torp v. Morse Dry Dock & Repair Co., 216 App. Div. 815, affirmed.
    (Argued November 19, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 23, 1926, 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, appellant. Plaintiff's intestate, a stevedore, was killed by an explosion on board a steamship where he was working. It was alleged that the explosion was caused by the use of an open flame acetylene torch by employees of defendant, appellant, in the immediate vicinity of a large number of cases containing gasoline in tin cans which formed a portion of the cargo.

      John Vernou Bouvier, Jr., and Harold R. Medina for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Paul De Laney, Appellant.

      Appeal — larceny — appeal to Court of Appeals from, judgment of affirmance by Appellate Division, not tahen zoithin thirty days and without certificate that question of law was involved, dismissed.

      People v. De Laney, 217 App. Div. 783, appeal dismissed.
    (Argued November 22, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of • the Supreme Court in the fourth judicial department, entered June 29, 1926, which unanimously affirmed a judgment of the Chautauqua County Court convicting the defendant of the crime of grand larceny in the first degree. The appeal was not taken within thirty days after entry of the judgment of affirmance as required by section 521 of the Code of Criminal Procedure, nor was a certificate obtained that a question of law was involved which ought to be reviewed by the Court of Appeals.

      Thomas P. Heffernan and John L. Campbell for appellant.

      Glenn W. Woodin, District Attorney, for respondent.
   Appeal dismissed; no opinion.

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


text:
    In the Matter of the Application of Helen M. O’Brien, Respondent, v. New York State Teachers’ Retirement Board, Appellant.

      Teachers — pensions — application by teacher shortly before death for retirement and for payment of allowance to designated nominee.

      Matter of O’Brien v. N. Y. State Teachers’ Retirement Board, 215 App. Div. 220, affirmed.
    (Argued November 22, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered February 4, 1926, which directed the appellant board to retire one Margaret O’Brien, a deceased school teacher, as of the date of the filing of her application and to make payment accordingly to the petitioner as her designated beneficiary. The question was whether the statute (Education Law, art. 43-B) compels the appellant board to grant a teacher’s deathbed application for a superannuation allowance to be paid to another upon the teacher’s immediate death.

      Nathan L. Miller, Harold Otis and Raymond F. Allen for appellant.

      La Fay C. Wilkie for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Probate of the Will of George S. Nicholas, Deceased. Grosvenor Nicholas, Appellant; Farmers Loan and Trust Company et al., Respondents.

      Will — probate — objection to probate on grounds of ■ fraud, undue influence and mental incompetency.

      Matter of Nicholas, 216 App. Div. 399, affirmed.
    (Argued November 22, 1926;
    decided December 31, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 16, 1926, which affirmed a decree of the Suffolk County Surrogate’s Court setting aside the verdict of a jury and admitting to probate an instrument propounded as the last will and testament of George S. Nicholas, deceased. There was objection to probate upon the grounds of alleged fraud, undue influence and mental incompetency of testator.

      Nathan L. Miller, George H. Furman, William H. Bobbins and Joseph S. Frank for appellant.

      William H. Button, Nathan 0. Petty, John C. Townsend and Samuel Biker, Jr., for respondents.
   Order affirmed, with costs; no opinion.

Concur: Cardozo, Pound, McLaughlin and Crane, JJ. Dissenting: Hiscock, Ch. J., Andrews and Lehman, JJ., on ground question of fact was presented by the evidence.


text:
    Anna Blum, Appellant, v. Edith H. Hoffkins et al., Respondents, and The County Trust Company, Appellant.

      Mortgage — foreclosure—fraud—■action to foreclose mortgage on real property — defenses that signature had been obtained by fraud without consideration and that execution had never been acknowledged.

      Blum v. Hoffkins, 210 App. Div. 748, affirmed.
    (Argued November 23, 1926;
    decided December 31, 1926.)
    Appeal from a judgment, entered December 29, 1924, upon an order of the Appellate Division of the Supreme Court in the second judicial department reversing a judgment in favor of the plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to foreclose a mortgage on real property. The defense was that the mortgage was signed by the alleged mortgagor without knowledge or information as to its nature or that it affected her interest in the real property in suit; that the instrument was never acknowledged by her and that she had received no consideration therefor.

      Benjamin M. Freeman for plaintiff, appellant.

      Henry M. Bellinger, Homer A. Stebbins and J. Elmer Melick for defendant, appellant.

      Arthur F. Engel for defendants, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Frances Temmaso, an Infant, by Pietro Temmaso, Her Guardian ad Litem, Respondent, v. John Betsch, Appellant.

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

      Temmaso v. Betsch, 217 App. Div. 756, affirmed.
    (Argued November 23, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 8, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, a child eight years old, while attempting to cross Wilson avenue, between Suydam and Hart streets in the borough of Brooklyn was struck by defendant’s motor, truck and received the injuries complained of.

      James A. Nooney and Joseph Force Crater for appellant.

      Sol. Boneparth, David, M. Fink and Jacquin Frank for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    County of Allegany, Respondent, v. Delbert P. Snyder, Appellant.

      Officers — county clerk ■ — fees — action by county to recover sum collected as fees by county clerk.

      County of Allegany v. Snyder, 214 App. Div. 810, affirmed.
    (Submitted November 23, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 28, 1925, unanimously affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion for judgment on the pleadings. The action was brought by the county of Allegany to recover from the defendant certain compensation received by him during the year 1922, while serving as Allegany county clerk, the office being a salaried one, for the registering and issuing of motor vehicle license plates, amounting in all to the sum of $716.40 which was alleged in the compilaint to belong to the plaintiff. The answer admitted the receipt of such compensation by the defendant, denied that the same belonged to the plaintiff and alleged that such compensation was received by the defendant as an individual only acting for and as agent of the State Tax Commission under and pursuant to the provisions of section 283-a of the Highway Law of the State of New York, in force at the time such compensation was paid.

      Charles D. Newton and Edwards P. Ward for appellant.

      Fred A. Robbins for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Philip Neuer, Appellant, v. Beckie Neuer, Respondent.

      Appeal — judgment of divorce reversed upon the facts and new trial granted — appeal to Court of Appeals dismissed.

      Neuer v. Neuer, 213 App. Div. 884, appeal dismissed.
    (Submitted November 24, 1926;
    decided December 31, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 24, 1925, reversing upon the facts a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial before a jury in an action for divorce.

      James E. Smyth for appellant.

      Walter B. Hart for respondent.
   Appeal dismissed, with costs; no opinion.

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


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

      Crimes — burglary — larceny —judgment of conviction reversed and new trial granted.

      People v. Dietz, 216 App. Div. 23, affirmed.
    (Argued November 24, 1926;
    decided December 31, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 10,1926, which reversed a judgment of the Ontario County Court, rendered upon a verdict convicting the defendant of the crimes of burglary in the third degree and grand larceny in the second degree and granted a new trial.

      Nathan D. Lapham, District Attorney, for appellant.

      B. J. Shanahan and James C. D’Aprils for respondent.
   Order affirmed; no opinion.

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


text:
    John F. Carroll, Appellant, v. The City of New York, Respondent.

      Negligence — streets ■ — • New York city ■ — injury from fall on icy sidewalk — complaint dismissed.

      Carroll v. City of New York, 215 App. Div. 710, affirmed.
    (Argued November 24, 1926;
    decided December 31, 1926.)
    Appeal from a judgment, entered December 15, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained through the negligence of defendant. Plaintiff, while walking on the sidewalk of Ryer avenue near One Hundred and Eighty-first street, borough of The Bronx, slipped on ice that had accumulated thereon, fell and received the injuries complained of.

      William J. Hogan, Leonard F. Fish and Thomas J. O’Neill for appellant. . ,

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

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


text:
    Otto Timme, Trading as E. F. Timme & Son, Appellant, v. Leo Steinfeld et al., Respondents.

      Contract — sale — action to recover for breach of contract to purchase goods — mutual abandonment.

      Timme v. Steinfeld, 214 App. Div. 611, affirmed.
    (Argued November 24, 1926;
    decided December 31, 1926.)
    Appeal from a judgment entered January 4, 1926, -upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover for an alleged breach of a contract to purchase goods. Delivery was to be made during January, February and March, 1920. Plaintiff delivered and defendants accepted part of the goods and on February 28, 1920, defendants' requested plaintiff to withhold further deliveries until further advised. Tender of the goods undelivered was not made until September 8, 1921. The Appellate Division held that in no event could the extension of the contract be regarded as for more than a reasonable time, and where both parties have ignored the existence of the contract for a period of over sixteen months, as a matter of law it is deemed to have been terminated by mutual abandonment.

      Douglass Newman and Aiken A. Pope for appellant.

      William Gilligan, Henry F. Wolff and Arthur L. Newman for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Paul E. Hilton, Appellant.

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

    (Argued November 29, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Queens County Court, rendered May 10, 1926, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Henry C. Frey, William F. Ryan and Thomas D. Austin for appellant.

      Richard S. Newcombe, District Attorney (Thomas F. Thornton of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Maine Lumber Company, Ltd., Respondent, v. Maryland Casualty Company, Appellant, Impleaded with Others.

      Contract — sale — principal and surety — damages —• action to recover upon bond for breach of contract to deliver goods.

      Maine Lumber Co., Ltd., v. Maryland Casualty Co., 216 App. Div. 35, affirmed.
    (Argued November 29, 1926;
    decided December 31, 1926.)
    Appeal from a judgment, entered March 31,1926, upoñ an order of the Appellate Division of the Supreme Court in the first judicial department reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and directing judgment in favor of plaintiff. The action was to recover upon a bond given by defendant, appellant, to secure the performance by its principals, interpleaded defendants, of a contract with the plaintiff for the sale of lumber. Such defendants failed to perform in full. The questions were as to the nature of the liability of the defendant, appellant, upon its bond, and as to what damages the plaintiff should recover thereunder. The trial court held that the bond upon which the plaintiff sued was one of indemnity, and that the plaintiff, in order to recover of the surety company, was required to first show that it had paid a loss. The Appellate Division held that the bond was one of surety, and that plaintiff was entitled to recover any loss it sustained by reason of the breach of contract.

      Daniel Combs and Edward J. Dowling for appellant.

      Robert B. Honeyman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Roosevelt Memorial Association of Oyster Bay, Inc., Respondent, v. Charles H. Jones et al., Individually and as Executors of and Trustees under the Will of Mary E. Jones, Deceased, et al., Appellants, Impleaded with Others.

      Constitutional law — eminent domain — condemnation proceedings — constitutionality of statute providing for taking of private property for park and memorial.

      Roosevelt Memorial Association v. Jones, 216 App. Div. 760, affirmed.
    (Argued November 29, 1926;
    decided December 31, 1926.)
    * Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 12, 1926, unanimously affirming an order of Special Term confirming the report of commissioners of appraisal in condemnation proceedings to acquire lands for the purpose of constructing and maintaining a public park and memorial as provided in chapter 429 of the Laws of 1919. The appellants contended that the statute was unconstitutional in that it provided for the taking of private property for a purpose other than a public use.

      Abel E. Blackmar and David C. Bennett for appellants-Rowland Miles and William T. McCoun for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The Stock Quotation Telegraph Company, Appellant and Respondent, v. Nicholas J. Hayes, as Commissioner of Water Supply, Gas and Electricity of the City of New York, et al., Respondents and Appellants, Impleaded with Another.

      Corporations — franchise — contract — New York city — duress — action to restrain city of New York from interfering with franchise to operate telegraph line, to annul contract on ground it was executed under duress and to recover money paid under terms of contract.

      Stock Quotation Telegraph Co. v. Hayes, 216 App. Div. 710, affirmed.
    (Argued November 29, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 22, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was brought by plaintiff to obtain a decree establishing that in 1882 it obtained a State franchise to erect and operate electric telegraph lines over t! i streets of the city of New York for the purpose of carrying on a “ stock ticker,” “ bulletin business ” or “ news service business; ” restraining the city and its officials from interfering with this franchise and annulling a contract made on May 8, 1913, between plaintiff and the city of New York, on the ground that it was executed under coercion and through duress, and also to recover back the initial payment and various sums of money paid annually, between June 7, 1913, and November 1, 1919, to the city as percentages of plaintiff’s gross receipts. The defendants denied that plaintiff is a telegraph corporation and affirmatively alleged that plaintiff is not a telegraph company, does not do a telegraph business and denied that there was any coercion or duress in the inception of said contract of May 8, 1913, and alleged that this contract was voluntarily entered into by the plaintiff. The trial court granted plaintiff the relief prayed for without interest, on the sums paid. The Appellate Division modified by granting interest from the date of demand. Plaintiff appealed from so much of judgment as denied interest from date of demand. Defendant appealed from the whole judgment.

      Morgan J. O’Brien, Jr., Morgan J. O’Brien and Bernard Sobol for plaintiff, appellant and respondent.

      George P. Nicholson, Corporation Counsel (Vincent Victory of counsel), for defendants, respondents and appellants.
   Judgment affirmed, without costs; no opinion.

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


text:
    Gertrude Himmelman, Respondent, v. 540 West 146th Street, Inc., et al., Defendants, and Capital City Surety Company, Appellant.

      Appeal — action to foreclose mortgage — deficiency judgment — appeal from order of modification dismissed on ground not a final order. Himmelman v. Capital City Surety Co., 216 App. Div. 418, appeal dismissed.
    (Argued November 29, 1926;
    decided December 31, 1926.)
    Appeal from an order of the Appellate^ Division of the Supreme Court in the first judicial department, entered May 17, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon the report of a referee in an action to foreclose a mortgage. The question was as to the validity of a deficiency judgment against defendant, appellant, which was surety upon a bond given to indemnify plaintiff in the event of a deficiency resulting from foreclosure.

      Abraham J. Halprin for appellant.

      Harold R. Medina and Ralph Honig for respondent.
   Appeal dismissed, with costs, on the ground that the order appealed from is not a final order; no opinion.

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


text:
    The Town of Savannah, Respondent, v. The Town of Conquest, Appellant.

      Towns — bridges — action by town to recover from adjoining town half of cost of construction of bridge over boundary stream.

      Town of Savannah v. Town of Conquest, 215 App. Div. 750, affirmed.
    (Argued November 29, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 17, 1925, affirming a judgment in favor of plaintiff entered upon the report of a referee. The action was to recover one-half of the expense of constructing a bridge over a stream between the town of Savannah in Wayne county and the town of Conquest in Cayuga county, under section 250 of the Highway Law. The answer denied that the bridge was constructed upon the boundary line between the two towns or that it connected two public highways.

      Frank S. Coburn for appellant.

      E. M. Harvie for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Higginbotham-Bailey-Logan Company, Respondent, v. Andrew W. Mellon, Director-General of Railroads, Appellant.

      Carriers — railroads — action to recover for failure to deliver goods shipped — defense of failure to give notice as required by bill of lading.

      Higginbotham-Bailey-Logan Co. v. Mellon, 216 App. Div. 806, affirmed.
    (Argued November 30, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1926, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for non-delivery of goods shipped over the Lehigh Valley railroad at New York for delivery at Dallas, Texas. The defense was failure to comply with a provision in the bill of lading requiring notice within six months after a reasonable time for delivery of the goods had elapsed. ,

      Clifton P. Williamson and H. S. Ogden for appellant.

      Charles Adkins Baker for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Lida M. Allen, as Administratrix of the Estate of Thomas G. Allen, Deceased, Respondent, v. Erie Railroad Company, Appellant.

      Negligence — railroads — crossing accident — driver of automobile killed by train while crossing tracks — when guilty of contributory negligence.

      Allen v. Erie R. R. Co., 217 App. Div. 714, reversed.
    (Argued November 30, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 8, 1926, 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 was killed as a result of a collision between one of defendant’s locomotives and an automobile which he was driving across the defendant’s tracks at the Tifft street crossing in the city of Buffalo. It appeared from the evidence that observation as intestate approached the tracks should have disclosed to him the on-coming train.

      John W. Ryan for appellant.

      Hamilton Ward for respondent.
   Judgments reversed and complaint dismissed, with costs in all courts on the ground that plaintiff’s intestate was guilty of contributory negligence as matter of law.

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


text:
    Carroll Building Corporation, Appellant, v. Louis Greenberg Plumbing Supplies, Inc., et al., Respondents, Impleaded with Others.

      Conspiracy — action to recover for alleged conspiracy to compel a builder to pay an excessive price for installation of plumbing.

      Carroll Bldg. Corp. v. Greenberg P. Supplies, Inc., 216 App. Div. 268, affirmed.
    (Submitted November 30, 1926;
    decided December 31, 1926.)
    Appeal from a judgment, entered April 8, 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 recover for an alleged conspiracy by defendants, respondents, who were respectively a plumbers’ supply firm and plumbing contractors, to compel plaintiff, a builder, to pay an excessive price for installation of plumbing in buildings it was erecting by filing a conditional sales contract and mechanics’ liens against said property.

      William Godnick, Irving C. Maltz and J. A. Freedman for appellant.

      Horace G. Marks and Samuel Kahan for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Margaret Dopp, Appellant, v. The City of Johnstown et al., Respondents.

      Negligence — streets — injury to pedestrian through giving way of iron trap door in sidewalk — complaint dismissed.

      Dopp v. City of Johnstown, 214 App. Div. 407, affirmed.
    (Argued November 30, 1926;
    decided December 31, 1926.)
    Appeal from a judgment, entered May 10, 1926, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. Defendant in- walking across a sidewalk in the city of Johnstown stepped upon an iron door located in and a part of the sidewalk which gave way and precipitated her into the area below causing the injuries complained of. Nuisance was not alleged. The Appellate Division dismissed the complaint on the ground that it appeared the accident occurred through improper maintenance rather than defective construction and there was no sufficient evidence of constructive notice thereof to the city.

      Alfred D. Dennison and John T. Morrison for appellant.

      Clarence W. Smith for city of Johnstown, respondent.

      J. Keck for Catherine A. Smith, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Edith H. Chase, Appellant, against Frederick C. Mason et al., as Trustees of Union Free School District No. 1, Town of Massena et al., Respondents.

      Schools — teachers — mandamus to compel trustees of union free school to re-employ a teacher denied.

      Matter of Chase v. Mason, 216 App. Div. 562, affirmed.
    (Argued December 1, 1926;
    decided December 31, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 28, 1926, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the trustees of a school district in the town of Massena to re-employ the petitioner to teach in the public schools in that district and denied the motion. It was contended under section 888 of the Education Law that the trustees were bound to re-employ a teacher whose past services had never been declared unsatisfactory.

      Giles A. Chase for appellant.

      Andrew J. Hamner for respondents.

      Ernest E. Cole, for Commissioner of Education, respondent.
   Order affirmed; no opinion.

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


text:
    Otto Seeberger, Respondent, v. Putnam & Co., Inc., et al., Appellants.

      Negligence — electricity — action for injury received from coming in contact with rail charged with electricity while installing piping in building.

      Seeberger v. Putnam & Co., Inc., 216 App. Div. 843, affirmed.
    (Argued December 1, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 11,1926, 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 installing a sprinkler system in the plant of defendant Rubin & Co., came in contact with a rail charged with electricity, from which power was derived to operate a crane which was being installed by defendant Putnam & Co., Inc., causing the injury complained of. Negligence was predicated on failure to warn plaintiff that the current had been or was about to be turned on.

      George J. Stacy and James J. Mahoney for Putnam & Co., appellant.

      Clarence S. Zipp and E. C. Sherwood for appellant.
    ■ John C. Robinson, Morris A. Wainger and Albert A. Sarafan for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Meter Goodfriend et al., Copartners under the Firm Name of Goodfriend Bros., Appellants, v. American Credit Indemnity Company of New York, Respondent.

      Insurance (credit) —■ contract — action to recover upon policy of credit insurance — claim for amount paid to redeem merchandise from insolvent purchaser.

      Goodfriend v. American Credit Indemnity Co., 217 App. Div. 635, affirmed.
    (Argued December 1, 1926;
    decided December 31, 1926.)
    Appeal from a judgment, entered July 13, 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 decision of the court at a Trial Term without a jury, and directing a dismissal of the complaint. The action was to recover upon a policy of credit insurance against losses from sales of merchandise due to insolvency of purchasers, an amount paid by the insured to redeem certain merchandise from an insolvent purchaser. The Appellate Division held that the claim was not within the purview of the policy.

      Edward S. Greeribaum, Edgar J. Nathan and Jonas J. Shapiro for appellants.

      Walter J. Bosston and Edwin Hort for respondent.
   Judgment affirmed, with costs; no opinion. ,

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


text:
    Royal Silk Underwear Manufacturing Co., Inc., Respondent, v. United States Fidelity and Guaranty Company, Appellant.

      Insurance (burglary) — contract — action to reform and recover on policy of burglary insurance —: defenses that president of insured committed burglary and that it had failed to keep required books.

      Royal Silk Underwear Mfg. Co,, Inc.,.-v. United StaJtes F. & G. Cd., 216 App. Div. 772, affirmed.
    (Argued December 2, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 31, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to reform a policy of burglary insurance and to recover thereon. The answer admitted the issuance of the policy and set up as separate defenses, first, that the president of the insured committed the burglary and, second, that plaintiff had violated a condition of the policy requiring it to keep books and accounts so that the actual amount of the loss or damage could be accurately determined.

      James C. Van Siclen, Leon M. Prince and Sidney J. Loeb for appellant.

      Eugene L. Bondy, M. V. Seligson and I. B. Stein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Olive K. Burrows, as Administratrix of the Estate of Marvin A. Burrows, Deceased, Respondent, v. Livingston-Niagara Power Company, Appellant.

      Negligence — electricity — death of workman through iron bar he was lowering from window of factory building coming in contact with uninsulated electric wire.

      Burrows v. Livingston-Niagara Power Co., 217 App. Div. 206» affirmed.
    (Argued December 2, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 13, 1926, 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 sustained through the negligence of defendant. Intestate was killed while cleaning out a room in a factory where he was employed, through the coming in contact of an iron rod, which he was pushing out of a window, with an uninsulated high tension electric wire erected and maintained by defendant within from four to eight feet of the building.

      Paul Folger and Calin McLennan for appellant.

      Arthur VD. Chamberlain for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Anthony Bellotti, Respondent, v. Huron Stevedoring Corporation, Appellant.

      Negligence — ships and shipping — longshoreman injured from falling down hatchway while loading vessel.

      Bellotti v. Huron Stevedoring Corp., 218 App. Div. 867, affirmed.
    (Argued December 2, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 2, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. Plaintiff, a longshoreman engaged in loading a vessel, was injured by falling through a hatchway while proceeding in the dark along one of the decks, by direction of his foreman, to procure a tool required in the performance of his work. There was evidence that the foreman had told plaintiff that the hatches were closed.

      Don R. Almy for appellant.

      Harold R. Medina, David M. Fink and Jacquin Frank for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George Doyle, Respondent, v. Church E. Gates & Co., Inc., Appellant.

      Negligence — motor vehicles — action for personal injuries through being struck by motor truck.

      Boyle v. Oates & Co., Inc., 216 App. Div. 737, affirmed.
    (Submitted December 3, 1926;
    decided December 31, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 12, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recovei for personal injuries alleged to have been sustained through the negligence of defendant. The plaintiff while walking, along Southern boulevard in the city of New York saw the defendant’s lumber truck coming along and hailed the chauffeur and asked for a ride. The chauffeur stopped, let the plaintiff on and then proceeded on his way in a northerly direction-up the hill on the. boulevard. The chauffeur proceeded across Freeman street and brought his truck to a standstill at a point fifty feet beyond the crossing. The plaintiff testified that he then got down from the truck and started walking in an easterly direction to the sidewalk; that he took two small steps and was just about to take a third step when he was struck down and the rear right wheel of the truck passed over his left hand, inflicting the injuries complained of.

      Francis B. Holmes, Julian S. Eaton and Martin B. Faris for appellant.

      Harold B. Medina and Fannie Horowitz for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Manufacturers Trust Company et al., as Administrators of the Estate of Samuel Kraus, Deceased, Appellants, v. United States Mortgage and Trust Company, Respondent.

      Banks and banking — executors and administrators —■ bank not liable for funds belonging to estate checked, out by executor for improper or unlawful purpose.

      Manufacturers Trust Co. v. United States M. & T. Co., 213 App Div. 345, affirmed.
    (Argued December 3, 1926;
    decided December 31, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 3, 1925, unanimously affirming a judgment in favor of defendant entered upon a verdict directed by the court. The action was to recover funds belonging to the estate of Samuel Kraus, deceased, alleged to have been lost by reason of irregularities and violations of law by the defendant with which the funds were deposited and the executors who preceded plaintiff in-the administration of the estate.

      Copal Mintz and Louis S. Posner for appellants.

      Carroll 0. Walter for respondent.
   Judgment affirmed, with costs, on ground that section 231 of Surrogate’s Court Act does not change the rule of Bischoff v. Yorkville Bank (218 N. Y. 106); no opinion.

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


text:
    C. Edward Pichler, Appellant, v. Benjamin Guinness et al., as Trustees under the Will of Ernest Thalmann, Deceased, et al., Copartners under the Firm Name of Ladenburg, Thalmann & Co., Respondents.

      Banks and banking — foreign exchange — action to recover amount paid for transfer of moneys to foreign country on ground of delay.

      Pichler v. Guinness, 217 App. Div. 386, affirmed.
    (Argued December 3, 1926;
    decided December 31, 1926.)
    Appeal from a judgment, entered July 19, 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 verdict in favor of the defendant. The action was brought to recover the sum of $3,559.01, with interest from the 16th day of December, 1916, which amount the plaintiff had paid to the defendants in New York on that day for the transfer of 20,000 marks by wireless to the credit of the account of Pichler Estate with the Frankfurter Bank of Frankfurt, Germany. This transfer of marks was not effected by the defendants as ordered and on September 19, 1919, the plaintiff made demand by letter on the defendants for the return of this payment with interest. The defendants refused to repay the' amount' in American dollars and alleged that under the terms of the order for cable transfer dated December 18, 1916, no liability was to attach to the defendants nor to their correspondents for any loss or damage in consequence of any delay or mistake in transmitting the message or through any other cause beyond their control, and then alleged that, owing to the pendency of the war between the United States and Germany, communication was suspended for a period of time and that during such time they took no steps to procure the payment as agreed.

      William L. Woodward for appellant.

      Arthur B. Brenner and Edwin Kessler, Jr., for 1 respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Estate of Charles Buhre, Deceased. George Buhre, Respondent; Matilda Loh, Appellant.

      Decedent’s estate — executors and administrators —• gift —• proceeding for discovery and delivery of property belonging to estate — insufficiency of evidence to establish gift inter vivos.

      Matter of Buhre, 216 App. Div. 822, affirmed.
    (Submitted December 3, 1926;
    decided December 31, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 30, 1926, which affirmed a decree of the Kings County Surrogate’s Court directing delivery of personal property belonging to the estate of Charles Buhre, deceased, to the administrator in a proceeding under sections 205 and 206 of the Surrogate’s Court Act for the discovery and delivery of property. The appellant herein interposed an answer claiming a gift inter vivos of the property in question. The surrogate held that there was no sufficient evidence to establish such gift.

      Edward J. Flanagan for appellant.

      Quinto J. Porcella for respondent.
   Order affirmed, with costs against appellant personally; no opinion.

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


text:
    Thomas H. Symington, Respondent, v. Ida M. Symington, Appellant.

      Appeal — order reversing order of Special Term denying motion for leave to discontinue and granting motion — appeal therefrom to Court of Appeals dismissed.

      Symington v. Symington, 218 App. Div. 724, appeal dismissed.
    (Argued January 11, 1927;
    decided January 18, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 29, 1926, which reversed an order of Special Term denying a motion for leave to discontinue. and granted said motion.

      Harold H. Corbin, Edward J. Bennett and Max D. Steuer for appellant.

      John Wallace Young, George Gordon Battle and Gordon Gordon for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    Burton W. Farnham, Respondent, v. Grand Central Packard Renting Corporation, Appellant, Impleaded with Another.
    (Submitted January 10, 1927;
    decided January 18, 1927.)
   Motion for reargument of motion to dismiss appeal denied, with ten dollars costs and necessary printing disbursements. (See 244 N. Y. 505.)


text:
    Phillips & Sons (a Corporation), Respondent, v. Central of Georgia Railway Company, Appellant.
    (Submitted January 10, 1927;
    decided January 18, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 243 N.'Y. 650.)


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

      Appeal — failure to file return and serve case — motion to dismiss appeal granted.

      People v. Harrison, 216 App. Div. 732, appeal dismissed.
    (Submitted January 10, 1927;
    decided January 18, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 19, 1926, which affirmed a judgment of Kings County Court convicting defendant of the crimes of robbery and grand larceny, first degree, and assault, second degree.
    The motion was made upon the grounds of failure to file a return and serve printed copies of the case on appeal.

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


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

      Appeal — motion to dismiss granted.

      People v. Bruno, 216 App. Div. 814, appeal dismissed.
    (Submitted January 10, 1927;
    decided January 18, 1927.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 16, 1926, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of practicing law without license in violation of section 270 of the Penal Taw.
    The motion was made upon the grounds of failure to file a return and serve printed copies of the case on appeal.

      Charles J. Dodd, District Attorney {Henry J. Walsh of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    William Barber, Appellant, v. A. Schrader’s Son, Inc., Respondent.

      Appeal —• order modifying interlocutory judgment — final judgment entered thereon after agreed accounting ■— motion to dismiss appeal therefrom denied. . .

    Reported below, 215 App. Div. 758.
    (Argued January 10, 1927;
    decided January 18, 1927.)
    Motion to dismiss appeals from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 8, 1925, which modified and affirmed as modified an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and from a final judgment entered thereon after an agreed accounting and waiver thereof before a referee.

      The motion was made upon the grounds that the order appealed from was not a final order; that the time within which to appeal therefrom had elapsed, and that an appeal could not be taken direct to the Court of Appeals from the judgment.

      Frank M. Avery and Franklin G. Manley for motion.

      Louis R. Bick opposed.
   Motion denied, with ten dollars costs and necessary-printing disbursements.


text:
    Samuel Hammer, Respondent, v. Harris Michael, Appellant.
    (Submitted January 10, 1927;
    decided January 18, 1927.)
   Motion to amend remittitur. (See 243 N. Y. 445.)

Motion granted, without costs. Return of remittitur requested and when returned the same will be amended by adding a provision that defendant have judgment against plaintiff for the return of his deposit of one thousand dollars, with interest from date of payment thereof.


text:
    Paul Westphal, a Corporation, Respondent, v. Westphal’s World’s Best Corporation et al., Appellants.
    (Submitted January 10, 1927;
    decided January 18, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 639.) '


text:
    In the Matter of the Claim of Gertrude Ayers, Respondent, against Dunn Pen and Pencil Company et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — traveling salesman for corporation engaged in business in this State killed in course of employment in another State — validity of award of compensation.

      Matter of Ayers v. Dunn Pen & Pencil Co., 217 App. Div. 702, affirmed.
    (Argued January 10, 1927;
    decided January 25, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 5, 1926, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant’s husband, while in the employ as a traveling salesman of defendant Dunn Pen and Pencil Company, a New York corporation having its principal place of business in this State, was killed in the State of Colorado while performing duties in the course of his employment. The question was whether compensation might be awarded here.

      Jeremiah F. Connor and Frank J. 0’ Neill for appellants.

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

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


text:
    In the Matter of the Claim of R. Finch, Respondent, against Buffalo Envelope Company et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — notice — injury to toe causing infection resulting in loss of leg — failure to give written notice.

      Matter of Finch v. Buffalo Envelope Co., 218 App. Div. 31, affirmed.
    (Argued January 10, 1927;
    decided January 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered' September 13, 1926, affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, in the course of his employment, sustained an injury to one of his toes and thereafter, by reason of infection, his left leg was amputated below the knee. There was evidence that on the day of the accident claimant reported the accident to his foreman. The question was whether claimant’s failure to give written notice of injury as required by section 18 of the Workmen’s Compensation Law was properly excused.

      Clarence B. Tippett for appellants.

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

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


text:
    In the Matter of the Claim of Harry D. Rothwell, Respondent, against Shipley Construction and Supply Company et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — award for insanity resulting from injury.

      Rothwell v. Shipley Construction & Supply Co., 215 App. Div. 851, affirmed.
    (Argued January 10, 1927;
    decided January 25, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 6, 1926, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law! Claimant, as the result of an injury received in the course of his employment, partially lost the use of his right leg and received an award therefor. It was further found, thereafter, that as a result of worry and mental anxiety caused by the injury claimant became insane and an award for total disability was allowed him. Appellants question the validity of the latter award.

      William B. Davis and E. S. Sherwood for appellants.

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

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


text:
    Samuel H. Greenhouse, Respondent, v. Rochester Taxicab Company et al., Appellants; New York State Railways, Respondent. Lillian Greenhouse, Respondent, v. Rochester Taxicab Company et al., Appellants; New York State Railways, Respondent. Margaret Greenhouse, an Infant, by Samuel H. Greenhouse, Her Guardian ad Litem, Respondent, v. Rochester Taxicab Company et al., Appellants; New York State Railways, Respondent.

      Appeal — question certified not considered by Court of Appeals unless answer will be decisive of correctness of order.

      Greenhouse v. Rochester Taxicab Co. (3 eases), 218 App. Div. 224, appeal dismissed.
    (Argued January 10, 1927;
    decided January 25, 1927.)
    Appeal, in each of the above-entitled actions, by, permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 12, 1926, which reversed an order of Special Term granting a motion by appellants herein for joinder of the New York State Railways as an additional party defendant and denied said motion. The actions were to recover for personal injuries alleged to have been sustained through the negligence of defendants.
    The following question was certified:
    “ Under the Civil Practice Act and Rules had the Supreme Court the power to make the order that it did bringing in an additional party defendant over the objection of the plaintiff? ”

      Eugene Baines for appellants.

      William C. Combs for plaintiffs, respondents.

      Carroll N. Whitman for New York State Railways, respondent.
   In each case appeal dismissed, with costs, on authority of Gray v. Vought & Co. (243 N. Y. 585).

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


text:
    In the Matter of the Claim of Peter Simon, Appellant, against American Express Company, Respondent. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant — claim for injury not filed within one year.

      Matter of Simon v. American Express Co., 217 App. Div. 802, affirmed.
    (Argued January 11, 1927;
    decided January 25, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 19, 1926, unanimously affirming a decision of the State Industrial Board disallowing a claim under the Workmen’s Compensation Law on the ground that no claim for compensation was filed within one year after the alleged injury as required by section 28 of the Workmen’s Compensation Law.

      Joseph A. Wechter for appellant.

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

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


text:
    In the Matter of the Accounting of George W. Bahrenburg, as Successor Trustee under the Will of John Bahrenburg, Deceased, Respondent. Anna Bahrenburg, Appellant; Florence L. Leslie, Respondent.

      Will — trust — validity of provision that on death of life tenant, if youngest living child shall have arrived or as soon as he does arrive at twenty-one, estate should be distributed amongst living children and issue of any that may be dead.

      Matter of Bahrenburg, 214 App. Div. 792, affirmed.
    (Argued January 11, 1927;
    decided January 25, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 12, 1925, which unanimously affirmed a decree of the Kings County Surrogate’s Court construing the will of John Bahrenburg, deceased, and directing distribution of his estate. It was claimed that the following provision of the will was violative of the statute against perpetuities and void: “ Upon the death of my said wife or upon my said wife marrying again, if any youngest child then living shall have arrived at the age of twenty-one years, or as soon after the happening of either of said events as my youngest child then living shall arrive at the age of twenty-one years I direct that my said trustees shall convey all the remaining part of my estate, hereinbefore conveyed to them, together with any income of the same remaining in their hands, share and share alike among my children then surviving and the issue of any child who may have then deceased, such issue taking the share to which such deceased child would be entitled if living.” The surrogate held that the term of the trust set up by the will was not violative of the statute against perpetuities; that the residuary estate should be distributed to and among the children of the testator living at the death of his widow, and the issue of any children who may have predeceased the testator and the widow; and that the appellant, as the sole legatee and devisee of William H. Bahrenburg, a son who survived testator but died without issue before the death of the widow, was not entitled to share in the distribution.

      Charles W. Philipbar for appellant.

      Andrew F. Van Thun, Jr., for trustee, respondent.

      Thomas Kelby for Florence L. Leslie, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    William Rosenstein, Appellant, v. Samuel Schneiderman, Respondent.

      Appeal — order of Appellate Division affirming order dismissing complaint on ground it did not state cause of action — appeal to Court of Appeals without permission dismissed.

      Rosenstein v. Schneiderman, 216 App. Div. 849, appeal dismissed.
    (Argued January 11, 1927;
    decided January 25, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 21, 1926, which affirmed an order of the Kings County Court granting a motion for a dismissal of the complaint on the ground that upon the face thereof it did not state facts sufficient to constitute a Pause of action.

      Charles Berlin, Robert B. Wilkes and Emanuel Rosenstein for appellant.

      Walter M. Effross for respondent.
   Appeal dismissed, with costs; no opinion.

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


text:
    In the Matter of the Accounting of Charles P. Hidden, as Committee of the Estate of Henrietta G. Cattapani, an Incompetent Person, Appellant. Title Guarantee and Trust Company, as Administrator of the Estate of Carlo Cattapani, Deceased, et al., Respondents.
    (Submitted January 17, 1927;
    decided January 25, 1927.)
   Motions for reargument and to amend remittiturs denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 499.)


text:
    Ernesto Foglino & Co., Inc., Appellant and Respondent, v. Frank C. Webster et al., Copartners under the Firm Name of Kidder, Peabody & Co., Respondents and Appellants.
    Submitted January 17, 1927;
    decided January 25, 1927.)
   Motion for reargument and to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 244 N. Y. 516.)


text:
    Rapid Fireproof Door Co., Inc., Appellant, v. Largo Corporation, Respondent, Impleaded with Another.
    (Submitted January 17, 1927;
    decided January 25, 1927.)
   Motion for reargument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements.. (See 243 N. Y. 482.)


text:
    Litchfield Construction Company et al., Appellants, v. The City of New York, Respondent.
    (Submitted January 17, 1927;
    decided January 25, 1927.)
   Motion to amend remittitur denied, without costs. (See 244 N. Y. 251.)


text:
    The People of the State of New York ex rel. Masonic Hall Association of Saratoga Springs, Appellant, v. James B. White et al., Comprising the City Council of the City of Saratoga Springs, Respondents.

      Tax — fraternal corporations — Masonic hall association not entitled to exemption of property from taxation — waiver of right to partial exemption.

      People ex rel. Masonic Hall Assn. v. White, 218 App. Div. 38, affirmed.
    (Submitted January 12, 1927;
    decided January 27, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 13, 1926, which affirmed an order of Special Term denying relator’s application for exemption of its real property from taxation. The Masonic Temple in the city of Saratoga Springs is occupied by four Masonic bodies and a Masonic club, the latter being organized for purposes of recreation. Application was made by relator on grievance day for total exemption as matter of right.
    The following questions were certified:
    “1. Is the relator such a ' fraternal corporation * * * created to build and maintain a building or buildings for its meeting,’ etc., as is referred to in section 4, subdivision 7, of the Tax Law, and as such is it entitled to exemption from taxation?
    “2. Is the relator entitled to have its property in question exempted from taxation under any other provision of section 4, subdivision 7, of the Tax Law?
    “ 3. Did the relator waive any right that it may have had to partial exemption by reason of the claim made by it on grievance day and in its petition for certiorari to review the assessment? ”

      Corliss Sheldon for appellant.

      John A. Slade and Sheridan P. Wait for respondents,
   Order affirmed, with costs; first and second questions certified answered in the negative and third in affirmative; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Harry W. Cowan, Appellant.

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

    (Argued January 12, 1927;
    decided January 27, 1927.)
    Appeal from a judgment of the Kings County Court, rendered March 23, 1926, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Lawrence J. McGoldrick for appellant.

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

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


text:
    George E. Sealy Co., Inc., Appellant, v. Ards Building Corporation, Respondent, Impleaded with Others.

      Liens — mechanic’s lien — action to foreclose lien of subcontractor — abandonment of worh by general contractor and completion by owner at cost sufficient to exhaust contract price.

      Sealy Co., Inc., v. Ards Building Corp., 216 App. Div. 313, affirmed-
    (Argued January 12, 1927;
    decided January 27, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 26, 1926, which affirmed a determination of the Appellate Term affirming a judgment of the City Court of the city of New York in favor of defendant, respondent, in an action to foreclose a mechanic's lien. Plaintiff was a subcontractor. The principal contractor abandoned the work which was finished by the owner. It was shown that the cost of completion left but $36.13 in the hancjs of the owner out of the contract price and that this balance was subject to legal expenses, leaving nothing for subcontractors.

      Samuel D. Johnson and Charles L. Apfel for appellant.

      .Edward Hymes and Arthur Knox for respondent.
   Judgment affirmed, with costs; no opinion.

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


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

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

      People v. Petrucci, 216 App. Div. 849, affirmed.
    (Argued January 13, 1927;
    decided January 27, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 21, 1926, which affirmed a judgment of the Kings County Court, rendered upon a verdict convicting defendant of the crime of robbery in the first degree.

      W. N. Seligsberg and Jacob Shientag for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Giuseppe Provenzano, Appellant.

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

    (Argued January 13, 1927;
    decided January 27, 1927.)
    Appeal from a judgment of the Supreme Court, rendered July 10, 1926, at a Trial Term for the county of Monroe, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Charles E. Callahan for appellant.

      William F. Love, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Maine Lumber Company, Ltd., Respondent, v. Maryland Casualty Company, Appellant, Impleaded with Others.
    (Submitted January 24, 1927;
    decided January 27, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 244 N. Y. 537.) _


text:
    In the Matter of the Accounting of Matthew W. Otis, as Executor of Edward L. Pearse, Deceased, Appellant. Jessie E. Beers et al., Respondents.

      Appeal — intermediate order — motion to dismiss appeal granted.

      Matter of Pearse, 217 App. Div. 602, appeal dismissed.
    (Submitted January 24, 1927;
    decided January 27, 1927.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 28,1926, which modified and affirmed as modified an order of the Franklin County Surrogate’s Court settling the accounts of the executor of Edward L. Pearse, deceased.
    The motion was made upon the grounds that the order appealed from was not a final order, that no undertaking had been given as required, and that appellant had failed to serve the printed case on appeal.

      William S. Beers for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


author: Per Curiam.

text:
    Schenectady Holding Company, Inc., Appellant and Respondent, v. Edward B. Ashton, Respondent and Appellant, Impleaded with Another.

      Corporations — directors — real property — trust — action to obtain decree that purchase of real property by director of corporation was made by him as trustee and that he be compelled to deliver deed upon payment of purchase price.

      Schenectady Holding Co., Inc., v. Ashton, 217 App. Div. 705, modified.
    (Argued January 13, 1927;
    decided February 23, 1927.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered May 21, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was brought in equity, by plaintiff, a corporation, invoking a decree to the effect that the purchase by one of its directors of certain real property in the city of Schenectady, be held to have been made by him as trustee for the corporation, and that he be compelled to execute and deliver a deed upon payment of the purchase price advanced. In the trial court this general relief was granted. The Appellate Division modified to the extent of allowing the defendant interest upon advances made for insurance, taxes, etc. Pursuant to an order of Special Term and as a condition to an injunction pendente lite, plaintiff had deposited with the Citizens Trust Company of Schenectady a sum equal to the rent it would have been required to pay to defendant under its lease if defendant was the true owner of the premises in suit.

      James A. Leary for plaintiff, appellant and respondent.

      Lawrence B. McKelvey for defendant, respondent and appellant.
   Per Curiam.

The plaintiff is not entitled to the moneys deposited in the Citizens Trust Company of Schenectady unless it becomes entitled to a deed of the premises by payment of the amount directed in the judgment of the Appellate Division within the time limited by the judgment. Otherwise the defendant will be entitled to receive and hold these moneys. If the trust company has paid out these moneys in accordance with the terms of the judgment, then the defendant may look to the plaintiff for restitution. The judgments of the Appellate Division and the Supreme Court as modified thereby should be further modified to the extent that it be adjudged, that upon payment to the defendant of the amount directed within thirty days after notice of entry of judgment herein and delivery of deed to the plaintiff, the plaintiff shall be entitled to have and possess the moneys deposited by it in the Citizens Trust Company pursuant to the order of the court at Special Term made December 9th, 1922, and entered in Schenectady county clerks office January 2d, 1923 (which moneys amounted approximately on December 1st, 1924, to $63,525.24), together with all increases thereof, on account of any further deposits and interest, credits and accruals. If such payment be not made by the plaintiff within the said time, then the defendant shall be entitled to retain title to the premises, and shall have and possess the sums so deposited. Upon proof of delivery of the deed to it, the plaintiff may apply to the Supreme Court for an order directing the Citizens Trust Company of Schenectady, New York, to pay over to it any moneys then on deposit with it. Upon proof that the plaintiff has failed to make the payments to the defendant directed by the judgment within thirty days after notice of entry thereof, the defendant may apply to the Supreme Court for an order directing the Citizens Trust Company of Schenectady, New York, to pay over to him any moneys then on deposit with it, and directing the plaintiff to pay to the defendant any moneys withdrawn from such deposit account pursuant to the original judgment and not returned by it. The judgment of the, Appellate Division and that of the Special Term should be modified in accordance herewith and as modified affirmed, without costs to either party.

Cardozo, Ch. J., Pound, Crane, Andrews and Lehman, JJ., concur; Kellogg, J., not sitting.

Judgment accordingly.


text:
    Marlen E. Pew, Appellant, v. International News Service, Inc., Respondent.

      Contract — 'services — trial — action to recover for alleged wrongful discharge — erroneous ruling that meaning and effect of letter of discharge were for jury to determine — justification for discharge.

      Pew v. International News Service, Inc., 215 App. Div. 790, affirmed.
    (Argued January 20, 1927;
    decided February 23, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 11, 1926, affirming a judgment in favor of defendant entered upon a verdict. The action was to recover for the alleged wrongful discharge of plaintiff from ¿mployment as editor and manager under a contract which at the date of the discharge had about three years and four months to run. The amended answer admitted the contract but denied the discharge. It also set up as affirmative defenses first, abandonment of the employment by the plaintiff, second, justification by reason of disobedience of instructions, insubordination, and insulting and discourteous conduct of the plaintiff toward his superiors and the defendant company; failure “ faithfully and efficiently to perform his duties; ” refusal to confer with his superiors; and instructing subordinate employees to disregard instructions of the defendant. As a special defense it alleged the plaintiff’s refusal, after leaving the defendant’s service, to accept other employment.

      Lyman A. Spalding and John H. Jackson for appellant.

      Louis B. Eppstein, Laurence H. Axman and Ira W. Hirshfield for respondent.
   Per Curiam.

We think the defendant discharged the plaintiff from its service by the letter of January 5, 1923, and that there was error in the ruling that the meaning and effect of the letter were to be determined by the jury.

We think, however, that the discharge was justified as a matter of law by insubordinate conduct on the part of the employee, and hence that the verdict of the jury could not properly have been other than it was.

The evidence that was excluded would not have altered the result.

The judgment should be affirmed with costs.

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

Judgment affirmed.


text:
    Philip Sonkin, on Behalf of Himself and Others, Respondent, v. Hannah Sullivan, as Receiver of the Estate of Timothy D. Sullivan, Deceased, Appellant, Impleaded with Others.

      Cemeteries — lot owners —• interest too remote to maintain action for adjudication of right of third party against cemetery association.

      Sonkin v. Sullivan, 217 App. Div. 780, reversed.
    (Argued January 11, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which reversed an order of Special Term granting a motion for a dismissal of the complaint. The plaintiff is a lot owner in the defendant cemetery association and sues in behalf of all other lot owners, to restrain the prosecution of three actions at law against the cemetery association to recover sums of money represented by the association’s certificates of indebtedness held by the various plaintiffs in the actions.
    The following question was certified:
    “ Does the complaint state facts sufficient to constitute a cause of action against the defendants Mount Carmel Cemetery Association, Arthur R. Peris, Louis Singer, Elias Schlein, Morris Cohen, Hannah Sullivan, as receiver of the property, assets, rights and effects of the estate of Timothy D. Sullivan, deceased, and all others who may intervene herein as parties defendant and /or who may be similarly situated? ”

      Abraham Benedict, Gustamos A. Rogers and Edith H. Kunen for appellant.

      Clinton T. Roe and Ely Rosenberg for respondent.
   Per Curiam.

The interest of the plaintiff as a lot owner is too remote to enable him to bring this action to obtain adjudication of the rights of a third party against the cemetery corporation.

The order of the Appellate Division should be reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division. Certified question answered in the negative.

Cardozo, Ch. J., Pound, Crane, Andrews and Lehman, JJ., concur; Kellogg, J., absent.

Ordered accordingly.


text:
    Louis Singer et al., Appellants, v. Mount Carmel Cemetery Association, Respondent.

      Cemeteries — action may not be maintained at law to recover amount unpaid on land purchase certificates issued by cemetery association.

      Singer v. Mount Carmel Cemetery Assn., 217 App. Div. 780, affirmed.
    (Submitted January 11, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which affirmed an order of Special Term denying a motion by plaintiff for judgment on the pleadings. The action was at law to recover the amount unpaid on land purchase certificates issued by defendant and maturing on the first Monday in June, 1925. The defense was ultra vires.

    The following question was certified:

      “Are the plaintiffs entitled to judgment in their favor upon the pleadings? ” ,

      Percival E. Jackson for appellants.

      Clinton T. Roe for respondent.
   Per Curiam.

The orders of the Appellate Division and Special Term should be affirmed, with costs. Question certified answered in the negative. (See Sullivan, etc., v. Mt. Carmel Cemetery Association, decided herewith.)

Cardozo, Ch. J., Pound, Crane, Andrews and Lehman, JJ., concur; Kellogg, J., absent.

Ordered accordingly.


text:
    Ely Rosenberg, Suing on Behalf of Himself and Others, Respondent, v. Mount Carmel Cemetery Association et al., Defendants, and Hannah Sullivan, as Receiver of the Estate of Timothy D. Sullivan, Deceased, Appellant.

      Injunction — prosecution of actions at law against cemetery association to recover amounts alleged to be due on certificates of indebtedness may not be enjoined.

      Rosenberg v. Mount Carmel Cemetery Assn., 217 App. Div. 780, reversed.
    (Argued January 11, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which affirmed an order of Special Term denying a motion for a dismissal of the complaint. The action is a representative one, brought by the plaintiff as a holder of certain certificates of indebtedness issued by the defendant Mount Carmel Cemetery Association in behalf of all certificate holders, to restrain the prosecution of three pending actions at law upon similar certificates of indebtedness.
    The following question was certified:
    “ Does the complaint state facts sufficient to constitute a cause of action against the defendants, Mount Carmel Cemetery Association, Arthur R. Peris, Louis Singer, Elias Schlein, Morris Cohen* Hannah Sullivan, as receiver of the property, assets, -rights and effects of the estate of Timothy D. Sullivan, deceased, and all others who may intervene herein as parties defendant and /or who may be similarly situated? ”

      Abraham Benedict, Gustavus A. Rogers and Edith H. Kunen for appellant.

      Clinton T. Roe, Ely Rosenberg and Adela Heller for respondent.
   Per Curiam.

If the facts stated in the complaint are sufficient to show that the individual defendants have no legal cause of action against the corporate defendant, then the corporation can protect its rights "and interests by asking for judgment in its favor in any actions at law that may be brought against it. If the individual defendants have a cause of action at law, they may not be enjoined from insisting upon their legal rights. No sufficient ground is pleaded for the interposition by a court of equity of an injunction against the prosecution of such actions at law even at the instance of the cemetery corporation. Certainly a certificate holder may not ask for such relief in its behalf.

The order of the Appellate Division and that of Special Term should be reversed and motion granted, with costs in all courts. Question certified answered in the negative.

Cardozo, Ch. J., Pound, Crane, Andrews and Lehman, JJ., concur; Kellogg, J., absent.

Ordered accordingly.


text:
    Ely Rosenberg, Suing on Behalf of Himself and Others, Respondent, v. Mount Carmel Cemetery Association et al., Defendants, and Hannah Sullivan, as Receiver of the Estate of Timothy D. Sullivan, Deceased, Appellant.

      Injunction — prosecution of action at law against cemetery association to recover amounts alleged to be due on certificates of indebtedness improperly enjoined.

      Rosenberg v. Mount Carmel Cemetery Assn., 217 App. Div. 780, reyersed.
    (Argued January 11, 1927;
    decided February 23, 1927.)
    . Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which affirmed an order of Special Term granting a motion to continue pendente lite an injunction restraining certain of the defendants from prosecuting actions at law upon certificates of indebtedness issued by Mount Carmel Cemetery Association.
    The following question was certified:

      “ Was the court below warranted in granting an injunction to restrain the prosecution of the action at law, brought by the defendants, Hannah Sullivan, as receiver, etc., Louis Singer, Elias Schlein, Morris Cohen, Arthur R. Peris against the Mount Carmel Cemetery Association? ”

      Abraham Benedict, Gustavus A. Rogers and Edith H. Kunen for appellant.

      Clinton T. Roe, Ely Rosenberg and Adela Heller for respondent.
   Order of Appellate Division and that of Special Term, reversed and motion denied, with costs in all courts; question certified answered in the negative; no opinion.

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


text:
    Louis Singer et al., Plaintiffs, v. Mount Carmel Cemetery Association, Respondent. Hannah Sullivan, as Receiver of the Estate of Timothy D. Sullivan, Deceased, Appellant, v. Mount Carmel Cemetery Association, Respondent. Arthur R. Perls, Plaintiff, v. Mount Carmel Cemetery Association, Respondent.

      Practice — consolidation of actions.

      Singer v. Mount Carmel Cemetery Assn., 217 App. Div. 780, affirmed.
    (Argued January 11, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which affirmed an order of Special Term granting a motion for consolidation of the above-entitled actions.
    The following questions were certified:

      “ 1. Does the order of affirmance present error of law?

      “ 2. Is the consolidation of the above-entitled actions an abuse of discretion so far as concerns the appellant Hannah Sullivan, as receiver? ”

      Abraham Benedict, Gustams A. Rogers and Edith H. Kunen for appellant.

      Clinton T. Roe and Charles P. Kramer for respondent.
   Order affirmed, with costs; questions certified answered in the negative; no opinion.

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


text:
    The Marine Trust Company of Buffalo, Respondent, v. Peter A. Lauria et al., Defendants, and George Henry, Jr., Appellant.

      Bills, notes and checks — negotiable instruments — action by indorsee to recover on check — dismissal of complaint on ground indorsee was holder for collection reversed.

      Marine Trust Co. v. Lauria, 213 App. Div. 64, affirmed.
    (Argued January 17, 1927;
    decided February 23, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 6, 1925, reversing a judgment in favor of defendant, appellant, entered upon a dismissal of the complaint as to him by the court on trial at Special Term and granting a new trial. The action was to recover upon a check drawn by plaintiff, appellant, to the order of defendant Lauria and delivered by him to defendant Bankers Trust Company indorsed for deposit. The latter mailed the check to plaintiff indorsed “ Pay Marine Trust Company, Buffalo, N. Y., or order.” When plaintiff presented the check to the bank on which it was drawn, payment was refused. The complaint was dismissed as against the defendant Henry on the ground that the plaintiff, having received the check for collection, could not maintain an action against the maker.

      Lafay C. Wilkie for appellant.

      Fritz Fernow and William, C. Warren, Jr., for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    In the Matter of the Claim of George Koch against Lehigh Valley Railroad Company, Respondent. State Industrial Board, Appellant.

      Workmen’s compensation — master and servant — claim for medical services rendered claimant by his own physicians dismissed.

      Matter of Koch v. Lehigh Valley R. R. Co., 217 App. Div. 280, affirmed.
    (Argued January 12, 1927;
    decided February 23, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 2, 1926, reversing an award of the State Industrial Board, made under the Workmen’s Compensation Law, and dismissing the claim. The award was for medical services rendered to claimant by his own physicians in connection with an injury received by him in the course of his employment. The Appellate Division held that under section 13 of the Workmen’s Compensation Law as it read in March, 1921, at which time the injury was received, the employer was not liable, it appearing that neither the claimant nor any one on his behalf ever requested the employer to furnish medical services and that it was not until nine days after the occurrence that the employer had knowledge of the injury, claimant in the meantime having been treated by physicians of his own choosing.

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

      William M. Fay for respondent.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


text:
    Jambs B. Murrin, Appellant, v. Archbald Consolidated Coal Company et al., Respondents.

      Corporations — stocks and stockholders — fraud—action by pledgee of majority of corporate stock to prevent transfer of assets to another corporation.

      Murrin v. Archbald Consolidated Coal Co., 215 App. Div. 710, affirmed.
    (Argued January 14, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 5, 1926, unanimously affirming a judgment entered upon the report of a referee in an" action brought by the pledgee of a majority of the stock of a corporation to compel retransfer of its assets alleged to have been transferred to a newly-organized corporation in fraud of the plaintiff’s rights. By a supplemental complaint, plaintiff demanded damages. The findings of the referee sustained the plaintiff’s demand for restoration of the corporate property but dismissed his demand for money damages.

      William C. Cannon, Theodore Kiendl and Russel S. Coutant for appellant.

      David Paine for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Cabdozo, Ch. J., Pound, Andrews, Lehman and Kellogg, JJ. Absent: Crane, J.


text:
    The People of the State of New York, Respondent, v. Morris Zeiff, Appellant.

      Crimes — receiving stolen property — judgment of conviction affirmed.

      People v._ Zeiff, 217 App. Div. 732, affirmed.
    (Argued January 17, 1927;
    decided February 23, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1926, which affirmed a judgment of the Court of General Sessions in the county of New York, rendered upon a verdict convicting the defendant of the crime of criminally receiving stolen property in the first degree.

      Clark L. Jordan for appellant.

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

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


text:
    The People of the State of New York, Respondent, v. Benjamin Diamond, Appellant.

      Crimes — receiving stolen property — judgment of conviction affirmed.

      People v. Diamond, 217 App. Div. 731, affirmed.
    (Argued January 17, 1927;
    decided February 23, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 11, 1926, which affirmed a judgment of the Court of General Sessions in the county of New York, rendered upon a verdict convicting the defendant of the crime of criminally receiving stolen property in the first degree.

      Harry Kopp and Joseph Force Crater for appellant.

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

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


text:
    Hyde & Behman Amusement Company, Appellant, v. Frank Staeudel, Respondent.

      Landlord and tenant — lease — real property — action to recover rent for alleged holdover period —■ defense that lease had been assigned with consent of lessor and that lessee was not responsible for holdover by assignee.

      Hyde & Behman Amusement Co. v. Staeudel, 216 App. Div. 843, affirmed.
    (Submitted January 17, 1927;
    decided February 23, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 7, 1926, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and granting a new trial. The action was to recover rent for an alleged holdover period after expiration of the term for which premises were leased by defendant. It appeared that defendant leased the premises in suit for a term of years. Concurrently with the execution of the lease the lessor consented in writing that defendant might assign the same to a corporation to be formed by him. The corporation was organized, the lease assigned and it went into possession of the premises, paying the rent due. At the expiration of the term of the lease the corporation continued in possession. Plaintiff seeks to recover from defendant rent which became due nearly four years after expiration of the lease.

      Benjamin Reass for appellant.

      Wilfrid N. O’Neil and Otto B. Schmidt for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Herbert Haverhill, Appellant, v. International Railway Company, Respondent.

      Former adjudication — negligence — railroads — motor vehicles — action to recover for damage to motor truck from collision with street railway car ■ — • record of judgment recovered by driver of truck for personal injuries received in accident improperly received in evidence on questions of negligence.

      Haverhill v. International By. Co., 217 App. Div. 521, affirmed.
    (Submitted January 17, 1927;
    decided February 23, 1927.)
    , Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 29, 1926, reversing a judgment in favor of plaintiff, entered upon a verdict and granting a new trial in an action to recover for damage to plaintiff’s motor truck alleged to have been occasioned through the negligence of the defendant. Prior to the trial of this action the driver of the truck had recovered in the City Court of Buffalo a judgment against defendant for personal injuries received by him in the same accident. On this trial plaintiff offered in evidence the record of the City Court case claiming it was a determination on the issues of defendant’s negligence and the contributory negligence of the driver. The record was received and evidence thereafter offered by defendant to show freedom from negligence on its part and contributory negligence. of the driver was rejected on the ground that those questions had been adjudicated. The Appellate Division held that the City Court judgment was not competent evidence and should have been excluded.

      Frank Gibbons for appellant.

      Selby G. Smith and John J. K. Caskie for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Charles Schubert, Appellant, v. Louis Finkelstein et al., Individually and as Copartners under the Firm Name of L. Finklestein & Sons et al., Respondents.

      Negligence — workmen’s compensation — election — action to recover for personal injuries — defense that plaintiff had elected, to take compensation under Workmen’s Compensation Law.

      Schubert v. Finkelstein, 216 App. Div. 702, affirmed.
    (Argued January 18, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 22, 1926, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged tc have been sustained through the negligence of defendants. The defense was that plaintiff had elected to take compensation under the Workmen’s Compensation Law. The question was whether an employee injured by the negligence of third parties who has received an award of compensation from the Industrial Commission and has been paid the award by the insurance carrier, may maintain an action against such third parties, where, before the commencement of the action and while the case before the Commission is continued and before final award, the award made has been rescinded by the Commission upon his application and upon the consent of the carrier, and he has paid back to the carrier the money received by him.

      Bertrand L. Pettigrew and James F. Brady for appellant.

      Benjamin C. Loder and John PL. Scully for L. Finkelstein & Sons, respondents.

      George F. Hickey and William Butler for Samuel Couch & Sons, respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Blanchard P. Atkinson, Appellant, v. Isabelle E. Atkinson, Respondent.

      Appeal — order of Appellate Division reversing order denying motion for new trial and granting motion — appeal to Court of A ppeals dismissed. Atkinson v. Atkinson, 217 App. Div. 96, appeal dismissed.
    (Argued January 18, 1927;
    decided February 23, 1927.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 10, 1926, which reversed an order of Special Term denying a motion for a new trial on the ground of newly-discovered evidence and granted said motion.
    ■ H. Preston Coursen for appellant.

      Harry N. Selvage for respondent.
   Appeal dismissed, with costs; no opinion.

Concur; Cabdozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ.


text:
    Helena M. Goodwin, Respondent, v. John H. Humbert, Appellant.

      Appeal — order of Appellate Division reversing determination of Appellate Term affirming judgment of City Court — appeal without permission to Court of Appeals dismissed.

      Goodwin v. Humbert, 216 App. Div. 296, appeal dismissed.
    (Argued January 19, 1927;
    decided February 23, 1927.)
    Appeal from a judgment, entered April 21, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department which reversed a determination of the Appellate Term affirming a judgment of the City Court of the city of New York in favor of defendant and directed judgment in favor of plaintiff.

      J. Harlin O’Connell for appellant.

      Frank Case Hayden for respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Cárdozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ.


text:
    Eliot G. Farrington, Respondent, v. Star Company, Appellant.

      Libel — publication of plaintiff’s photograph in connection with article charging person of same surname with crime.

      Farrington v. Star Co., 217 App. Div. 733, affirmed.
    (Argued January 19, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 24, 1926, unanimously affirming a judgment in favor of plaintiff, entered upon a verdict in an action for libel. It was shown that defendant had twice published in the New York American the plaintiff’s photograph in connection with a story in which one Edward Joseph Farrington was charged with seduction under promise of marriage and that the articles were false as to this plaintiff.

      William A. De Ford for appellant.

      Herbert C. Smyth, Roderic Willman and Ralph W. Thomas for respondent.
   Judgment affirmed, with costs; no opinion.

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