text:
    The People of the State of New York, Respondent, v. George E. Burgess, Appellant.
    Crimes — larceny — trial —• evidence — obtaining money by false representations upon sale of corporate stock — consent by defendant, upon appearing before grand jury, that testimony given by him might be used against him on criminal trial — auditor’s report presented by him to grand jury, and upon which he was there examined, part of his testimony and properly admitted in evidence against him without proof of accuracy ■— secondary evidence of contents of books upon which report was based competent where books were without State and custodians refused to produce them — rule of confrontation not applicable.
    1. The evidence upon trial of an indictment charging defendant with the crime of grand larceny, in that he obtained money by false representations made in connection with a sale of corporate stock, examined and held sufficient to sustain a verdict of conviction.
    2. Defendant, having asked leave to appear before the grand jury upon investigation of the affairs of the corporation, signed a consent that the testimony “ which I shall give * * * may be used against me in any proceedings, trial examination or case, civil or criminal,” and presented for examination by the grand jury a series of documents including a printed report by an auditor purporting to show the financial condition of the corporation and was questioned in regard thereto. Upon this trial, therefore, the auditor’s report was properly admitted in evidence without proof of its accuracy. When the defendant presented it to the grand jury for consideration and was questioned upon it, it became part of his testimony before that body and as such was admissible in evidence when that testimony was read into the record on this trial.
    3. Objection to testimony of the contents of the books upon which the auditor’s report was based upon the ground that secondary evidence of their contents was not admissible, cannot be sustained where it appears that the bobks were without the State and that their custodians refused to produce them in court. The general rule that secondary evidence of the contents of a writing, which has been lost or destroyed, is admissible, applies to criminal as well as to civil cases and no distinction in this regard can be drawn between writings which are lost or destroyed and writings which cannot be produced because they are out of the jurisdiction.
    4. The rule of confrontation may not be stretched to exclude the testimony of a witness, actually produced in court and subject to cross-examination, who testifies not to what another witness has told him but to what he has seen.

      People v. Burgess, 218 App. Div. 810, affirmed.
    (Argued January 20, 1927;
    decided February 23, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 9, 1926, unanimously affirming a judgment of the Monroe County Court, rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree.

      T. F. McCue and John F. O’Brien for appellant.
    The trial court committed prejudicial error in overruling defendant’s motion to advise the jury to acquit the defendant, and the trial court committed prejudicial error in denying defendant’s motion in arrest of judgment. (People v. Baker, 96 N. Y. 348; Hull v. Littauer, 162 N. Y. 569; Nat. Bank v. Weston, 172 N. Y. 250; People v. Livingston, 47 App. Div. 283; Woodbury v. State, 69 Ala. 246; People v. Streicher, 162 App. Div. 181.) The court committed prejudicial error in overruling defendant’s plea of former jeopardy and denying his motion in arrest of judgment. (People v. Flynn, 202 N. Y. 138; State v. Allen, 59 Kans. 758; Dobbin v. State, 14 Ohio St. 493; State v. Reinhart, 28 Ore. 466; Conklin v. State, 25 Neb. 784; People ex rel. Stabile v. Warden, 202 N. Y. 138; Cook v. State, 60 Ala. 39; State v. Nilson, 50 Ind. 487; State v. Sommers, 60 Minn. 90; State v. Smith, 44 Kans. 75.) The court committed prejudicial error in overruling the objections to secondary evidence of the contents of corporate books, and in receiving such evidence over the objections of defendant. (Cohen v. International Brokerage Co., 124 Misc. Rep. 860; Bell v. Gilbert Paper Co., 193 N. Y. Supp. 30; 201 App. Div. 867; Sample v. Platt, 76 Misc. Rep. 440; People v. Bromwich, 200 N. Y. 388; People v. Burham, 119 App. Div. 302; 120 App. Div. 388.)

      William F. Love, District Attorney (Frederick S. Holbrook of counsel), for respondent.
    The court did not commit prejudicial error in overruling defendant’s plea of former jeopardy. (People v. Reagle, 60 Barb. 527.) Secondary evidence of the contents of the corporate books was competent and the court committed no error in overruling defendant’s objections thereto. (People v. Miles, 183 Fed. Rep. 368.)
   Lehman, J.

The defendant has been convicted of the crime of grand larceny. The indictment sets forth that he obtained $1,000 from one C. Walter Schneeburger by false representations made in connection with the sale to him of capital stock of the Chemical Oil and Gas Company.

At the time of the sale of the stock the defendant was a director, vice-president and general sales manager of the corporation. He sold a large amount of its stock, to various persons and derived considerable profit from such sales. Doubtless he expressed himself in enthusiastic manner about the prospects of the corporation. The charge against- the defendant would not be sustained by proof that the defendant was a false prophet. He is charged with obtaining money by false representations as to existing facts — representations which he actually knew were false or which he would have known were false if he had chosen to use sources of information which were easily available, or to make such investigation as any man who desired to speak the truth would have made before he ventured positive assertion, based upon apparent knowledge, as to matters of which he was ignorant; He claims that the evidence does not sustain the charge that he made the alleged representations as to existing facts or- that they were false. He urges that a plea of former jeopardy should have been sustained because of the discharge of' the jury before agreement upon a previous trial, and that the trial judge committed prejudicial error both in his rulings during the trial and in his charge. We think that it is so clear that the jury was discharged upon the previous trial under circumstances which justified such discharge under the provisions of the Code of Criminal Procedure as construed in People ex rel. Stabile v. Warden, etc. (202 N. Y. 138, 147). that nothing more need be said on this point.

We find also that the evidence is sufficient to sustain the charge against the defendant. Before he became a salesman of stock he had been engaged in various activities of a religious nature, and others who had been engaged in similar activities were associated with him in his new activity. Their connection with the enterprise may well have induced church members to give particular weight to statements made by the defendant. Perhaps the complaining witness might not have bought the stock upon representations of the defendant if other circumstances had not tended to impress him with the fact that men of substance, recognized as leaders in the work of the church with which he was in some degree affiliated, were connected with the enterprise. That situation does not negative the testimony of the complaining witness that the defendant made representations as to the existing condition of the corporation and its activities, upon which he relied in investing in its stock. Those representations if made might well lead a prospective investor to believe that the .investment would result in profit. Other factors might strengthen the force of the representations so made. The wrong done by the defendant is no less because these factors intervened to produce the contemplated effect which constitutes the crime of larceny by obtaining money through false pretenses. Analysis of the testimony tending to show that the representations were made as charged would serve no purpose. If the jury chose to credit it, it was amply sufficient to counterbalance the assertion of the defendant that he spoke of the future, not the present, and made no statements which were not based on fact or honest opinion and investigation.

While the grand jury was investigating the affairs of the corporation and those connected therewith, the defendant asked and obtained leave of the grand jury to appear before it. He signed a consent that “ the testimony which I shall give if I so appear before said grand jury may be used against me in any proceedings, trial, examination or case, civil or criminal.” Through the attorney who was then acting as his counsel, he presented for examination by the grand jury a series of documents including a printed report by an auditor which purports to show the financial condition of the corporation. He was questioned before the" grand jury, and his answers contain admissions which show prima facie that if he made the alleged representations they were in fact false. Some of these admissions are open to the construction that they rest upon the assumption that the printed auditor’s report is complete and accurate. The testimony of the defendant given before the grand jury was read at this trial by the People. The defendant thereafter took the stand and sought to explain these admissions. He did not then concede the accuracy of the auditor’s report upon which, he says, such admissions were based. The jury apparently gave weight to the admissions before the grand jury. They might do so if the evidence laid before them on this issue was competent.

The trial judge admitted in evidence without proof of its accuracy the auditor’s report which the defendant through his attorney had submitted to the grand jury. This report shows on its face that at the very time when, it is charged, the defendant represented that the stock of the oil company was an investment ” and not a speculation,” the company was making no profits and that declarations of dividends for which the defendant voted as director were not justified by any accumulated surplus from past earnings. When the defendant joined in presenting it to the grand jury for consideration and was questioned upon it, it became part of his testimony before the grand jury and as such was admissible in evidence when that testimony was read into the record upon this trial though at the trial the defendant was represented by a different attorney who objected to its admission. Moreover, even though the defendant testified before the grand jury that “ I always felt that this statement, this auditor’s report, is unfair because it doesn’t take into consideration the value of the property any more than just the equipment,” he apparently assumed that otherwise the figures contained in it were correct. Indeed, there would have been no reason to present this report to the grand jury, except upon that assumption. To that extent the defendant vouched for its reliability. There was, therefore, no error in its admission in evidence upon this trial as part of defendant’s testimony given before the grand jury.

The books of accounts upon which this report was based were not produced in court. An auditor who made up the report was permitted to testify to their contents. Another witness was permitted to testify to the contents of the corporate books and records. Objection was made on the ground that secondary evidence of the contents of these books was not admissible. The defendant urges that upon a criminal trial such secondary evidence is inadmissible and that in any event sufficient foundation was not laid for its introduction in this case.

Original books of account are ordinarily admissible to prove transactions recorded therein only if supplemented by testimony which verifies the entries. The nature of such testimony need not be set forth here, for in this case there is clearly no testimony which would comply with the rule. Some of the books as to the contents of which oral testimony was admitted were the corporate stock books and the minutes of directors’ meetings. They show that the complaining witness was a stockholder of the corporation, and they show the transactions of the corporation by its board of directors. The books of a corporation are admissible for such purpose without proof of the correctness of the entries by the party actually making them. (Sigua Iron Co. v. Brown, 171 N. Y. 488.) . Secondary evidence of the contents of the books of account was admitted for the purpose of explaining the auditor’s report which was based upon them and which was properly admitted in evidence, because the defendant had to some extent adopted that report when he submitted it to-the grand jury. Even if the reliability of the entries is not established the fact that the books contain these entries may have independent relevancy. Other evidence shows beyond dispute that at the time when the defendant took part in the declaration of dividends and is claimed to have made the alleged misrepresentations as to the value of the stock, the corporation was in fact making no profit. Entries made in the books to which defendant had at all times access might tend to show that the defendant recklessly and willfully closed his eyes to sources of information which the jury might find he should have consulted in the exercise of ordinary good faith. Argument might be made that under these circumstances the original books would have been admissible in this case without verification of the entries even if objection had been made on this ground. We are not called upon to pass upon this point. Apparently both sides assumed that the original books would have been admissible as primary evidence. The objection was solely to the admission of secondary evidence of their contents.

The People showed that before the trial a subpoena duces tecum was served in Pennsylvania upon the president and the treasurer of the corporation who refused to produce the books in court but gave the People’s representatives access to them. There can be no doubt that these officers were in control of the corporation and that the books of the corporation were in their custody. The subpoena duces tecum had of course no force beyond the boundaries of the State of New York. Service of it upon the officers of the corporation .merely paved the way for refusal by the officers of the corporation to produce the books in court. Obedience to the subpoena could not be enforced and refusal to obey its command left the People powerless to compel production of the books here.

Secondary evidence of the contents of a written document may ordinarily be introduced where the original document is in the custody of a person without the jurisdiction of the courts, and its production has been refused and cannot be compelled. “ The books being out of the State and beyond the jurisdiction of the court, secondary evidence to prove their contents was admissible.” (Burton v. Driggs, 20 Wall. [U. S.] 125.) Perhaps if the People could compel the production of books or documents by deposition without the State, mere refusal to produce without compulsion would be insufficient. “ It has repeatedly been held that the person last known to have been in possession of the paper must be examined as a witness, to prove its loss, and that even if he is out of the State, his deposition must be procured if practicable, or some good excuse given for not doing so.” (Kearney v. Mayor, etc., of City of N. Y., 92 N. Y. 617.) Here no deposition could be taken outside of the State, for the Code of Criminal Procedure does not permit a commission to issue upon the application of the People.

■ It is said that even if the preliminary proof was sufficient to admit secondary evidence of the contents of the books in civil cases, no such evidence may be received in a criminal case. Section 392 of the Code of Criminal Procedure provides that: The rules of evidence in civil cases are applicable also to criminal cases, except as otherwise provided in this Code.” No special provision is contained in the Code governing this kind of evidence. The provision of the Civil Rights Law (Cons. Laws, ch. 6, § 12) that the accused has the right * * * to be confronted with the witnesses against him ” may hardly be held to render secondary evidence of the contents of a document which cannot be produced inadmissible in a criminal case. Such evidence would, of course, not be admissible even in civil cases, unless the original document was admissible. Where verification of entries must be made to render the entries admissible, doubtless the accused is entitled to be confronted with the witnesses needed for such verification. That is not the case here. As we have pointed out, the objection of the defendant applies only to the introduction of secondary evidence of the contents of books which we assume would be admissible if produced in court. The rule of confrontation may hardly be stretched to exclude the testimony of a witness, actually produced in court and subject to cross-examination, who testifies not to what another witness has told him but to what he has seen.

There can be no question that the general rule that secondary evidence of the contents of a writing, which has been lost or destroyed, is admissible applies to criminal as well as civil cases. (See Underhill on Criminal Evidence, section 94.) A multitude of cases cited in the textbooks attest the general rule. No distinction in this regard can be drawn between writings which are lost or destroyed and writings which cannot be produced because they are out of the jurisdiction. A search, by no means exhaustive, shows that the rule has been applied in criminal cases where documents were outside the jurisdiction in State v. Alpert (88 Vt. 191); Myrick v. United States (219 Fed. Rep. 1); Machen v. State (17 Alabama Appeals, 427); Ritter v. State (70 Ark. 472); People v. Bond (291 Ill. 74); State v. Wren (77 N. H. 361).

A book received in evidence becomes primary and independent evidence of the facts stated therein though used in what may be termed a hearsay or assertive capacity.” (Chamberlayne, Modern Law of Evidence, sec. 3056.) Secondary evidence of the entries in a book may generally be admitted in place of the primary evidence when preliminary proof is made that the primary evidence is not available. (Burton v. Driggs, supra.) Such secondary evidence does not take the place of testimony of a witness not produced, and, therefore, the rule of confrontation which must be applied in criminal cases cannot result in its exclusion in such cases. It follows that in th s case the objection was properly overruled.

We have examined the other exceptions, but we find no reversible error. The judgment of conviction should, therefore, be affirmed. .

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

Judgment affirmed.


source: Caselaw Access Project

author: Kellogg, J.

license: Public Domain

text:
    Henry M. Sliosberg, Respondent, v. New York Life Insurance Company, Appellant.
    Constitutional law — comity — insurance — contract — stay — section 169-a of Civil Practice Act providing for stay of action on insurance contract made by American corporation payable in Russian roubles or in Russia, unconstitutional — Russian citizen not barred from bringing action in this State by non-recognition by this government of Russian: Republic — section 169-a not intended to withdraw from aliens their right to sue — obligation of contract not wholly Russian —■ statute may not be upheld as emergency law.
    1. Section 169-a of the Civil Practice Act, added by chapter 232 of the Laws of 1926, providing for a stay of any action, counterclaim, setoff or defense founded upon or growing out of a contract of insurance, made prior to November 7, 1917, by an insurance company of the United States, and payable in Russian roubles or to be performed in whole or in part within the territory of the former Russian Empire, is violative of the provision of section 10 of article 1 of the Federal Constitution that no State shall pass any law impairing the obligation of contracts.
    2. The Russian Republic, not having been recognized by the government of the United States, might not maintain an action in the courts of this State, but that fact did not debar the plaintiff herein, even though he were at the time a Russian citizen, from bringing this action to recover moneys promised to be paid upon a life and endowment policy issued by defendant.
    3. Section 169-a cannot be justified as a “ legislative fiat ” withdrawing from aliens that right by which they are permitted to maintain" actions in this jurisdiction. The enactment was not intended to withdraw from aliens their right to sue. It relates to any cause of action of the class designated brought by any person, whether a citizen or an alien, and purports merely to stay such actions, not to forbid their being brought.
    4. A contention that the obligation of the contract was Russian, the attempted impairment of which by a New York statute was not unconstitutional, cannot be sustained. The “ obligation of a contract ” rests upon the law of the State which, regardless of the volition of the promisors, compels them to make performance. The contract of insurance in suit, though issued in Russia, made subject to Russian laws, guaranteed by assets deposited in Russia and, as to death benefits, payable in that country, nevertheless, carried with it obligations created by the laws of the State of New York, which were impaired by the statute suspending for an indefinite period all proceedings to enforce them.
    5. Nor may the statute be upheld as an emergency law enacted to protect the lives, health, morals, comfort or general welfare of the people. There is no emergency. The prompt collection through the process of our courts of overdue insurance moneys payable in roubles in Russia, would not have involved a calamity either public or private, nor does the public weal require that honest creditors should be made to abide the time when a law, inherently unjust and confiscatory, may become an effective weapon of defense through recognition by this government of the governmental power that enacted it.

      Sliosberg v. New York Life Ins. Co., 217 App. Div. 67, affirmed.
    (Argued January 26, 1927;
    decided March 1, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court, in the first judicial department, entered May 27, 1926, denying a motion for a stay of proceedings under section 169-a of the Civil Practice Act.
    The following questions were certified:

      “ 1. Would section 169-a of the Civil Practice Act, as sought to be applied by defendant in this action, contravene the provision of section 10 of article 1 of the Constitution of the United States, that no State shall pass any law impairing the obligation of contracts?

      “ 2. Would section 169-a of the Civil Practice Act, as sought to be applied by defendant 'in this action, contravene the provision of section 1 of article XIV of the articles in addition to and amendment of the Constitution of the United States, that no State shall deprive any person of property without due process of law?

      “ 3. Would section 169-a of the Civil Practice Act, as sought to be applied by defendant in this action, contravene the provision of section 1 of article XIV of the articles in addition to and amendment of the Constitution of the United States, that no State shall deny to any person within its jurisdiction the equal protection of the laws?

      “ 4. Would section 169-a of the Civil Practice Act, as sought to be applied by defendant in this action, contravene the provision of section 6 of article I of the Constitution of the State of New York, that no person shall be deprived of property without due process of law, nor shall private property be taken for public use without just compensation?
    " 5. Would section 169-a of the Civil Practice Act, as sought to be applied by the defendant in this action, contravene the provision contained in section 1 of article III of the Constitution of the State of New York, that ' the Legislative power of this State shall be vested in the Senate and Assembly? ’
    '' 6. Would section 169-a of the Civil Practice Act, as sought to be applied by defendant in this action, contravene the provision contained in section 1 of article VI of the Constitution of the State of New York, that ' the Supreme Court is continued with general jurisdiction in law and equity, subject to such appellate jurisdiction of the Court of Appeals as now is or hereafter may be prescribed by law not inconsistent with this article? ’
    “ 7. Would section 169-a of the Civil Practice Act, as sought to be applied by defendant in this action, contravene the provision of section 2 of article VI of the Constitution of the State of New York, that 'the several Appellate Divisions, except as hereinafter provided, shall have and exercise such original or appellate jurisdiction as is now or may hereafter be prescribed by law? ’ ”

      Charles E. Hughes and John Foster Dulles for appellant.
    It is clearly established that a stay law which is reasonable as a conservatory measure is not unconstitutional. (Antoni v. Greenhow, 107 U. S. 769; Von Hoffman v. Quincy, 4 Wall. 535.) In no event does a change of the remedy in this country impair the obligation of a contract made and to be performed in and governed by the law of a foreign nation' and which expressly provides for resort exclusively to the courts of the foreign nation. (Selover v. Walsh, 226 U. S. 112; Northwestern Ins. Co. v. McCue, 223 U. S. 234; Antoni v. Greenhow, 107 U. S. 769; Von Hoffman v. Quincy, 4 Wall. 535; Gunn v. Barry, 15 Wall. 610; Walker v. Whitehead, 16 Wall. 314; Barnitz v. Beverly, 163 U. S. 118; Bronson v. Kinzie, 1 How. [U. S.] 311.) The plaintiff is a non-resident alien and as such has no “ right ” to sue in any American court. (Russian Republic v. Cibrario, 235 N. Y. 255; Loucks v. Standard Oil Co., 224 N. Y. 99; Disconto, etc., v. Umbreit, 208 U. S. 570; Bank v. Earle, 13 Pet. 519; Mairano v. B. & O. R. Co., 213 U. S. 268; Story on Conflict of Laws [6th ed.], 35.)

      Albert Ottinger, Attorney-General (Claude T. Dawes and Clarence C. Fowler of counsel), for Superintendent of Insurance.

      John W. Davis and David E. Hudson for Equitable Life Assurance Society, amicus cwrice.

      Walter H. Pollak, Ruth I. Wilson and Frederic C. Pitcher for respondent.
    Section 169-a of the Civil Practice Act,' as applied to these actions, violates the prohibition contained in article I, section 10, of the Constitution of the United States, that no State shall pass any law impairing the obligation of contracts. (Gregonis v. P. & R. Coal & Iron Co., 235 N. Y. 152; Kent v. Universal Film Mfg. Co., 200 App. Div. 539; Stone v. Penn Yan, 197 N. Y. 279; Howarth v. Angle, 162 N. Y. 179; Russian Republic v. Cibrario, 235 N. Y. 255; Palmer v. DeWitt, 47 N. Y. 532; Crashley v. Press Publishing Co., 179 N. Y. 27; Georgia v. Brailsford, 3 Dall. 1; Hughes v. Edwards, 9 Wheat. 489; Bank of Augusta v. Earle, 13 Pet. 519; Peabody v. Hamilton, 106 Mass. 217; Roberts v. Knights, 7 Allen, 449.)

      Louis Marshall and James Marshall, amici curias.

    Chapters 232 and 452 of the Laws of 1926 are in contravention of section 10 of article I of the Constitution of the United States in that they impair the obligation of contract, and they are unconstitutional and void. (Joint Stock Co. v. Nat. City Bank, 240 N. Y. 368; Murphy v. Second Russian Ins. Co., 240 N. Y. 554; First Russian Ins. Co. v. Beha, 240 N. Y. 601; Louisiana v. New Orleans, 102 U. S. 203; McCracken v. Hayward, 2 How. [U. S.] 607; Bronson v. Kinzie, 1 How. [U. S.]311; Kener v. La Grange Mills, 231 U. S. 215; White v. Hart, 13 Wall. 646; Edwards v. Kearzey, 96 U. S. 606; Green v. Biddle, 8 Wheat. 1; Barnitz v. Beverly, 163 U. S. 118; Daniels v. Tearney, 102 U. S. 415.)

      Borris M. Komar, amicus curios.

    State legislation impairing the obligation of a foreign transitory contract is unconstitutional as contravening article 1, section 10, of Federal Constitution. (Cook v. Moffat, 5 How. 295; Baldwin v. Hale, 1 Wall. 223; Hawley v. Hunt, 27 Iowa, 303; Evans & Co. v. Sprigg, 2 Md. 457; Beers v. Rhea, 5 Tex. 349; Phoenix Nat. Bank v. Batcheller, 151 Mass. 589; Western Nat. Bank v. Reckless, 96 Fed. Rep. 70; Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; Canada Southern R. R. Co. v. Gebhard, 109 U. S. 527; McClement v. Order of Foresters, 222 N. Y. 470; Brown v. Equitable Life Assur. Soc., 142 Fed. Rep. 835.)

      Osmond K. Fraenkel and Charles Recht for Russian Policyholders, Inc., amicus curioe.

    The impairment of contracts clause in the United States Constitution applies to contracts made outside the State whose laws are being considered, whether the contract was made within or without the United States. (Western Nat. Bank v.
      Reckless, 96 Fed. Rep. 70; Sturges v. Crowninshield, 4 Wheat. 122; McMillan v. McNeil, 4 Wheat. 209; Ogden v. Saunders, 12 Wheat. 213; Boyle v. Zacharie, 6 Pet. 635; Suydam v. Broadrax, 14 Pet. 67; Cook v. Moffat, 5 How. [U. S.] 295; Baldwin v. Hale, 1 Wall. 223; Denny v. Bennett, 128 U. S. 489; Travis v. Yale & Towne Mfg. Co., 252 U. S. 60.)

      Frederick B. Campbell and Paul C. Whipp for First Russian Fire Insurance Company et al., amid curice.

    The act plainly impairs the obligation of the contracts between the several companies above mentioned on the one hand and the State of New York, the Superintendent of Insurance, and the United States trustee of the several companies on the other hand, made at the time the several companies were admitted" to transact business in the State of New York. (Von Hoffman v. City of Quincy, 4 Wall. 535; Gunn v. Barry, 15 Wall. 610; Walker v. Whitehead, 16 Wall. 314; Antoni v. Greenhorn, 107 U. S. 769; Barnitz v. Beverly, 163 U. S. 118.)

      Samuel Greenbaum, Edward S. Greenbaum and Jonas J. Shapiro, amici curice.

   Kellogg, J.

This action was brought to recover, upon a twenty-year life and endowment policy issued by the defendant on October 24th, 1901, certain moneys thereby promised to be paid. The action was begun, by the service of a summons and complaint, in April, 1925. No answer to the complaint was served by the defendant. In lieu of answering, the defendant presented an application to the Appellate Division to stay the action until the expiration of thirty days next following the recognition ole jure of a government of Russia by the government of the United States. The application was made under section 169-a of the Civil Practice Act, a section which was added to the act by chapter 232 of the Laws of 1926. The provisions of that section, so far as material, are as follows: “ Sec. 169-a. Stay of action on insurance contract payable in Russian roubles. Whenever in any civil action or special proceeding now or hereafter pending in any court of this state, it shall appear that * * * any cause of action, counterclaim, set-off or defense is founded upon or grows out of any contract of insurance made or entered into prior to November seventh, nineteen hundred and seventeen, by any insurance company organized under the laws of any state of the United States and expressed to be payable in Russian roubles or-to be performed in whole or in part within the territorial confines of the former Russian Empire, such action or special proceeding, upon application, as hereinafter provided shall be stayed by order of the court in which the same is pending until the expiration of thirty, days next following the recognition de jure of a government of Russia by the government of the United States. Such application may be made by any party against whom such cause of action, counterclaim, set-off or defense is asserted at any time after the commencement of the action or special proceeding and prior to the rendition of the judgment or final order therein * * *.” The policy sued upon was issued prior to November 7th, 1917. It w:as issued by an insurance company organized under the laws of the State of New York. It was “ expressed to be payable in Russian roubles.” It was “ expressed to be performed in whole or in part within the territorial confines of the former Russian Empire.” The action brought, therefore, was wholly within-the scope of the provisions of section 169-a of the Civil Practice Act. Consequently, if chapter 232 of the Laws of 1926, which added the section, was a valid legislative act, the defendant was entitled to the stay which it demanded. The Appellate Division denied a stay, holding that chapter 232 of the Laws of 1926 was an unconstitutional act in that- it violated, among others, the provisions of article 1, section 10, of the Constitution of the United States, which inhibits State Legislatures as follows: “No State shall * * * pass any * * * Law impairing the Obligation of Contracts.”

The complaint and the affidavits and other writings filed upon the application disclose the following facts:

The plaintiff, on October 24th, 1901, the date of the policy, and for many years .thereafter, was a Russian citizen. He was expelled from Russia in March, 1920. Having refused to register as a citizen, under the laws of the Soviet Government of Russia, he was forbidden to re-enter its confines. Since June, 1920, he has lived in Paris, France. He came to New York city in March, 1925, and in April of the same year verified the complaint in this action. He returned to Paris in May of the same year. Although it is stated, in one of the affidavits filed, that the plaintiff “ is not and never has been, a subject of the Soviet Government of Russia,” it is not asserted, and does not otherwise appear, that the plaintiff has lost his citizenship or that he is not now a citizen of the nation of Russia.

The policy in suit bears the signatures, written or printed, of the president and the actuary of the defendant, who were then resident in New York, which are expressed to have been affixed on the 24th day of October, 1901. It was countersigned by the general representative for Russia of the defendant. This countersignature is dated “ St. Petersburg November 1st, 1901.” It is, therefore, inferable that the policy was issued and delivered to the plaintiff at St. Petersburg on or about November 1st, 1901. The policy insured the life of the plaintiff, in the amount of 20,000 roubles, for a period of twenty years from the 24th day of October, 1901. The terms of the policy expressly bound the defendant to pay “ the above mentioned insured amount in St. Petersburg, to the wife of the insured * * * if such death occurs while this policy is in force.” They further bound the defendant as follows: “ The company hereby agrees to pay to the insured or to his order the insured amount, i. e., twenty thousand roubles, if the insured is living at 12 o’clock noon on the 24th day of October, 1921.” A schedule attached to the policy provided that if the premiums were paid for seventeen years from the date of the policy, the insured, if living, would be entitled to recover a cash surrender. value of 16,140 roubles. It appears that the plaintiff did pay all the stipulated premiums down to and including the premium due on October 18th, 1918. It would thus appear that the plaintiff, if entitled to any recovery, is entitled to a judgment for 16,140 roubles, as demanded in the complaint.

The policy in question stated that certain governmental insurance regulations, embodied in a writing known as the Pravila,” a copy of which was attached to the policy, should form essential parts of the contract of insurance. The Pravila required the defendant “ in order to guarantee the insured against losses,” to deposit an amount specified, in cash or securities, in the Russian State Bank. It also required the defendant to deposit and maintain in such bank other funds termed the Reserve Fund ” and the Reserve Capital.” The amounts required to be deposited in such funds, from time to time, were to be determined by a method of calculation prescribed. The policy contained the following provision: “ That the exact fulfillment of the insurance obligations entered into by the company shall be guaranteed by the security deposited and other funds belonging to the company in Russia, and also by all other property belonging to the company.” It provided that the business of the company should be conducted through a special branch situated in St. Petersburg; that this branch should be managed by a special chief representative residing permanently at St. Petersburg; that all applications for policies should be made to the chief representative; that the acceptance or rejection of insurance depends entirely upon the decision of the home office of the company in New York; ” that policies should bear the signatures of the president and the actuary of the company in New York; that they must “ be countersigned by the Chief Representative for Russia; ” that all premiums must be paid to the chief representative; that all death notices should be given to him. It contained the following clause: Payment of the amount insured is made either by the Chief Representative of the company at St. Petersburg, or by the local agent, or by transmitting the insured amount direct to the beneficiary.”

The Russian Socialist Federated Soviet Republic, which, since the Russian revolution of the year 1917, has exercised governmental powers in Russia (Wulfsohn v. Russian Republic, 234 N. Y. 372), on December 1st, 1918, decreed that “ All kinds of insurance * * * are declared to be the State monopoly; ” that all insurance organizations were subject to liquidation, and that the assets of all such companies became the property of the “ R. S. F. S. R.” On the 18th day of November, 1919, it decreed that All kinds of life insurance (capitals and profits, in the R. S. F. S. R.) are cancelled,” and that “ All the contracts with life-insurance Companies and Savings-Banks for life-insurance, capitals and profits are cancelled.” Pursuant to these decrees, all the assets of the defendant, situate in Russia, were forcibly seized and taken over by the Russian Soviet government. The defendant has ever since ceased to maintain an office or to do an insurance business in Russia.

The Russian Socialist Federated Soviet Republic, not having been recognized by the government of the United States, might not have maintained an action in the courts of the State of New York. (Russian Republic v. Cibrario, 235 N. Y. 255.) That fact, however, did not debar this plaintiff, even though .he were, at the time, a Russian citizen, from bringing this action in the courts of this State. Thus, in Joint Stock Company v. National City Bank (240 N. Y. 368) jurisdiction of an action, brought by a Russian corporation, after the Soviet government had been established, was entertained. The right of the plaintiff to bring suit was grounded upon comity, not the comity of courts, but the comity of nations. (Bank of Augusta v. Earle, 13 Peters, 519.) Suits brought by alien corporations and individuals had for so long a period been permitted that the right of the plaintiff to sue had become fixed. The right of the plaintiff was such that “unless restrained by legislative fiat no court may now deny it.” (Russian Republic v. Cibrario, supra.) That the statute under which the defendant made this application was not intended as an act withdrawing from aliens their right to sue is apparent from its contents. Thus, the statute is not in terms limited to actions brought by alien suitors. It relates to any cause of action of a certain class brought by any person, whether a citizen or an alien. The bringing of a suit, whether by an alien or other person, is not forbidden. On the contrary, it is provided that the application for a stay must be made “ after the commencement of the action or special proceeding.” It does not require that suitors already in court, as was this plaintiff, should be turned out of court and that their actions should be discontinued. On the contrary, it purports merely to stay actions until the happening of a certain event; after the occurrence of that event, suits, whether by aliens or other persons, are to be permitted to continue. We think that the enactment cannot be justified as a “ legislative fiat ” withdrawing from aliens that right by which they are permitted to maintain actions in this jurisdiction.

The policy sued upon was issued in Russia; it was made subject to Russian laws; it was guaranteed by assets required to be deposited in a Russian bank; the death benefits payable thereunder were payable in Russia at the offices maintained therein by the defendant. Upon these facts, and others, the appellant erects the argument that the obligation of the contract was a Russian obligation, the attempted impairment of which, by a New York statute, was not unconstitutional. The obligation of a contract, within the meaning of the hmitation, does not find its sanction merely in the conscience or honor of the promisors; it rests upon the law of a sovereign State which, regardless of the volition of the promisors, compels them to make performance. What is it, then, which constitutes the obligation of a contract? * * * it is the law which binds the parties to perform their agreement,” said Washington, J., in Ogden v. Saunders (12 Wheat. [U. S.] 256). The obligation does not inhere, and subsist in the contract itself, proprio vigore, but in the law applicable to the contract,” said Trimble, J., in the same case. The law binds him [a contracting party] to perform his undertaking, and this is, of course, the obligation of his contract,” said Marshall, Ch. J., in Sturges v. Crowninshield (4 Wheat. U. S. 196). We think, for several reasons, that the contract of insurance in question involved obligations created by the laws of the State of New York. (1) The defendant is a New York corporation. ' Its authority to make the contract sued upon was derived exclusively from the laws of the State of New York, which created it. Every restriction upon the defendant’s contractual power, imposed by those laws, followed the defendant into every jurisdiction where it undertook to contract. The plaintiff, in contracting with the defendant in Russia, impliedly subjected himself to the laws of the State of New York. He is conclusively presumed to have contracted with a view to such laws of that government, because the corporation must of necessity be controlled by them, and it has no power to contract with a view to any other laws with which they are not in entire harmony.” (Canada Southern R. Co. v. Gebhard, 109 U. S. 527, 538.) Again, it was said in that case: “ But wherever it [a corporation] goes for business it carries its charter, as that is the law of its existence.” The contract in question, therefore, carried with it an obligation, the original source of which was the law of .the defendant’s creation. (2) Moreover, while the policy in question was delivered to the plaintiff in Russia, its provisions were drafted by the defendant at the home office in New York city. The Pravila provided that the acceptance or rejection of insurance depends entirely upon the decision of the home office of the company in New York.” The particular policy sued upon was submitted to the home office and received its approval. Therefore, while, technically, the policy was issued in Russia, the assent of the defendant, which bound it to perform the terms of the contract, was given in New York city. (3) Again, it is not the fact that the contract of insurance was by its terms performable in Russia. The death benefits, provided for by the contract, were payable in St. Peters-burg. This plaintiff, however, is not suing to recover death benefits. He has survived the period during which his life was insured. His suit is to recover the surrender value of his policy, under that provision of the contract whereby the defendant, without restriction as to place of performance, in general terms agreed to pay to the insured or his order the insured amount, i. <?., twenty thousand roubles, if the insured is living at 12 o’clock noon on the 24th day of October, 1921.” The Pravila provided that the obligation of the contract was guaranteed not only by the funds deposited in Russia but also by all other property belonging to the company.” Self-evidently, the general promise and the guaranty contained in the words quoted required, for their complete enforcement, the compelling power of the laws of other jurisdictions. The appropriate jurisdiction for their enforcement was the State of New York, where the defendant was domiciled. (Blackstone v. Miller, 188 U. S. 189, 205.) In that case Holmes, J., said: “ What gives the debt validity? Nothing but the fact that the law of the place where the debtor is will make him pay.” It has been held that a contract originating in the State of Kansas, as a part of its obligation, carries with it the laws of New Jersey, the domicile of the promisor, so that a statute of the latter State, withdrawing all remedies for the enforcement of the contract, violates the constitutional limitation. (Western National Bank v. Reckless, 96 Fed. Rep. 70.) In that case a creditor of a Kansas corporation brought suit in New Jersey against a stockholder of the corporation, residing in New Jersey, to recover upon an obligation imposed upon all stockholders by a Kansas statute. A statute of New Jersey, forbidding a recovery in all such cases, was held to impair the obligation of the contract and to be unconstitutional. For all these reasons we think that the contract of insurance in suit carried with it obligations resting in the laws of the State of New York; that chapter 232 of the Laws of 1926, if it withdrew, substantially, all remedies for the enforcement of the contract, impaired an obligation of the contract which had its source and sanction in the laws of the self same State.

The obligation of a contract, which may not be impaired, does not include the particular remedies provided by a State for its enforcement at the time of the inception of the contract, so that the same are made immune from alteration or modification. The withdrawal of all remedies, however, does impair the obligation. Otherwise the owner of a broken promise would find his cause of action to be nothing more than that metaphysical subtlety ” (to borrow an expression of Professor Ames — see Lectures on Legal History, p. 199), “ an immortal right to bring an eternally prohibited action.” Moreover, a substantial impairment of a means of enforcement is an impairment of the contract obligation. (Sturges v. Crowninshield, 4 Wheat. [U. S.] 122; McCracken v. Hay ward, 2 How. [U. S.] 608; White v. Hart, 13 Wall. [U. S.] 646; Edwards v. Kearzey, 96 U. S. 595; Bronson v. Kinzie, 1 How. [U. S.] 311; Penniman’s Case, 103 U. S. 714.) In the case last cited the Supreme Court said: “ The general doctrine of this court on this subject may be thus stated: In modes of proceeding and forms to enforce the contract the Legislature has the control, and may enlarge, limit, or alter them, provided it does not deny a remedy or so embarrass it with conditions or restrictions as seriously to impair the value of the right.” Statutes suspending, for an indefinite period, all proceedings to enforce a contract have very generally been held to be unconstitutional.

Thus, statutes, passed by the Southern States during the Civil War, prohibiting the issuance of executions upon judgments until the expiration of twelve months from “ the ratification of a treaty of peace between the United States and the Confederacy,” have been held to impair the obligation of contracts. (Hudspeth & Co. v. Davis, 41 Ala. 389; Carlington v. Priest, 13 Fla. 559; The Sequestration Cases, 30 Texas, 688; Burt v. Williams, 24 Ark. 91.) A statute providing that an execution upon a judgment in a suit to recover upon a note or contract to pay money shall not be issued “ until otherwise provided by law ” impairs the obligation of contracts. (Barnes v. Barnes, 53 N. C. 333.) In Daniels v. Tearney (102 U. S. 415) the United States Supreme Court declared a law of Virginia, which forbade the issuance of an execution upon a judgment until otherwise provided by law,” to be unconstitutional. On the other hand, it has been held that a statute forbidding the rendition of a judgment until the lapse of one year after suit brought does not impair the obligation of a contract. (Pollard v. Woods, 40 Ala. 77.) Two interesting cases in the courts of Pennsylvania have arisen. In the one case it was held that a statute staying civil process against any person in the service of the United States during the Civil War for the term of such service and thirty days thereafter, where the maximum term of enlistment was three years, did not impair a contractual obligation and was constitutional. (Breitenbach v. Bush, 44 Penn. St. 313.) In a later case, in view of the fact that the enlistments, by a subsequent act of Congress, had become enlistments during the war,” the statute was held unconstitutional. (Clark v. Martin, 3 Grant’s Cases, 393.) In the Breitenbach case the court said: “ Wo hold any law to be constitutional which gives a stay for a time that is definite and not unreasonable, but unconstitutional if the stay be for an indefinite time, or for a time that is unreasonable, though definite.” In our case the statute requires that actions of a certain class be stayed until thirty days after the recognition de jure of a government of Russia by the government of the United States.” In other words, the actions are to be stayed “ until the happening of an event which may never happen,” as said in Burt v. Williams (supra). The great weight of authority is to the effect that a State imposing such a stay impairs the obligation of contracts and violates the constitutional limitation.

All contracts are made subject to the exercise by government of a sovereign right to legislate for the protection of the lives, health, morals, comfort and general welfare of the people.” (Manigault v. Springs, 199 U. S. 473.) That the government may be required, in times of public stress, so to legislate as to nullify private contracts is an implied term of the law of every contract, so that such legislation, if enacted, does not impair the obligation of the contract within the meaning of the limitation. (Marcus Brown Co. v. Feldman, 256 U. S. 170.) In People ex rel. Durham B. Corp. v. La Fetra (230 N. Y. 429, 444) this court said: “ Emergency laws in time of peace are uncommon but not unknown. Wholesale disaster, financial panic, the aftermath of war (Hamilton v. Kentucky Distilleries & W. Co., 251 U. S. 146, 161), earthquake, pestilence, famine and fire, a combination of men or the force of circumstances may, as the alternative of confusion or chaos, demand the enactment of laws that would be thought arbitrary under normal conditions.” We have here no such emergency. “ Confusion or chaos ” would not have resulted if the statute in question had not been passed. The prompt collection, through the process of our courts, of overdue insurance moneys payable in Russia, in Russian roubles, would not have involved a calamity, either public or private; not public, since the policyholders of two insurance companies would alone have been affected; not private, for the compulsory satisfaction of honest debts by debtors amply able to pay cannot be regarded as catastrophic in any sense. We do not mean to say that this defendant has presently no' defense to this action. That question is not now involved. For, the defendant is not now urging that, the Soviet decrees canceling all Russian insurance policies are bind-1 ing upon this plaintiff, a Russian citizen resident in Russia when the decrees were passed. On the contrary, it is urging that the stay law will result in supplying a defense not now possessed. Its justification for the law is that when the Soviet government has been recognized, if ever it shall be, the Soviet decrees will retroactively have become effective to its advantage. And what is the defense which, in the event that recognition is granted, will then become available to insurance companies against holders of policies payable in Russia in Russian roubles? Not that the contracts of insurance have been fully performed. Not that the insurance moneys due have been paid. Those defenses, if existent at all, are existent now and need no statutory aid to make them available. Not that the insurance companies have been deprived of their Russian assets. That a debtor has lost the wherewithal to pay is no defense, whether its loss is attributable to simple robbery or to piracy which has been coated white by legislation. The defense will be that the unpaid policyholders have lost their causes of action by virtue of decrees, then having legal sanction, which arbitrarily canceled their obligations against such companies without compensation and without substitution of other obligors having the will or the duty to pay. We do not think that the public weal required that honest creditors should be made to abide the time when a law, inherently unjust and confiscatory, enacted by a governmental power, then regarded as barbarous, might become an effective weapon of defense, through the recognition of that power as a worthy member of the society of civilized nations. We think that the statute in question cannot be upheld as an emergency law enacted to protect the lives, health, morals, comfort and general welfare of the people; ” that it was an unconstitutional act in that it provided for stays of actions and proceedings for an indefinite period of time and, therefore, if effective would have impaired the obligation of contracts.

We, therefore, answer in the affirmative question number one: Would section 169-a of the Civil Practice Act, as sought to be applied by defendant in this action, contravene the provision of section 10 of article 1 of the Constitution of the United States, that no State shall pass any law impairing the obligation of contracts? ” Having so answered, it is unnecessary to answer the other questions certified. The order should be affirmed, with costs.

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

Order affirmed, etc.


author: Per Curiam.

text:
    In the Matter of the Claim of Ralph DeCaprio against General Electric Company, Respondent. State Industrial Board, Appellant.
    Workmen’s compensation — claim for loss of eyesight from injury — extent of loss of vision a question of fact.
    Until the Legislature or State Industrial Board establishes a proper standard method of determining loss of visual efficiency it must remain one of fact in proceedings under the Workmen’s Compensation Law.

      Matter of DeCaprio v. General Electric Co., 218 App. Div. 310, reversed.
    (Argued February 21, 1927;
    decided March 1, 1927.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 29, 1926, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law (Cons. Laws, ch. 67), and remitting the claim.
    The following question was certified:

      “ Was there any evidence in the record upon which the State Industrial Board had jurisdiction to make a finding of fact of permanent loss of 80% of useful vision of the right eye, and following that an award for the total'loss of useful vision of said right eye? ”

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

      F. J. Young and R. D. Moot for respondent.
   Per Curiam.

The question is whether any standard method of determining loss of visual efficiency has been so established as to make all others erroneous as matter of law or whether a difference of opinion may exist among experts as to the proper interpretation of recognized tests.

We are unable to say that Dr. Acheson’s interpretation of the Snellen test is erroneous as matter of law although he finds 80 percentage of loss of vision when the American Medical Association would read his formula as indicating only 51.1 percentage of loss of vision.

Until the Legislature or the State Industrial Board establishes a proper standard method of determining the question it must remain one of fact. The weight of authority doubtless inclines to the rules adopted by the American Medical Association.

The order appealed from should be reversed and the award of the State Industrial Board affirmed, with costs in this court and in the Appellate Division, and the question certified answered in the affirmative.

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

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Edward Larkman, Appellant.

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

    (Argued October 18, 1926;
    decided November 23, 1926.)
    Appeal from a judgment of the Supreme Court, rendered March 4, 1926, at a Trial Term for the county of Erie upon a verdict convicting the defendant of the crime of murder in the first degree.

      Wortley B. Paul for appellant.

      Guy B. Moore, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Cardozo, Pound, McLaughlin, Crane and Andrews, JJ. Dissenting: Hiscóck, Ch. J., and Lehman, J., who vote for new trial.


text:
    The People of the State of New York, Respondent, v. Ben Bradley, Appellant.

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

    (Argued October 18, 1926;
    decided November 23, 1926.)
    Appeal from a judgment of the Court of General Sessions of the county of New York, rendered April 28, 1926, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Louis H. Levin and Joseph Steinberg for appellant.

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

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


text:
    Mercantile Factors Corporation, Appellant, v. Warner Bros. Pictures, Inc., Respondent.

      Debtor and creditor ■ — • bills, notes and checks — notes of third party given to plaintiff as collateral security for debt of defendant — plaintiff may not recover face value of notes where portion of debt remaining unpaid is less in amount.

      Mercantile Factors Corp. v. Warner Bros. Pictures, Inc., 215 App. Div. 530, affirmed.
    (Submitted October 22, 1926;
    decided November 23, 1926.)
    Appeal from- a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 24, 1926, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court on motion of defendant. The action was to recover upon promissory notes made by a third party to the order of defendant as payee and indorsed over to the plaintiff by the defendant as collateral security for a loan made by plaintiff to defendant. The question was whether a creditor who receives from its debtor notes made by third persons and transferred to the creditor as collateral security for the debt, may recover the full amount thereof in an action against the debtor on its enforcement of the notes when the portion of the debt remaining unpaid at the time of trial is less than the amount for which the notes were drawn.

      Samuel Meyers and Harry Hausknecht for appellant.

      Abel Cary Thomas and Joseph H. Hazen for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    George A. Evalenko, Respondent, v. Robert M. Catts, Appellant.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 613.)


text:
    Bown Brothers, Inc., Respondent, v. Merchants Bank of Rochester, Appellant. (Six Actions.)
    (Submitted November 15, 1926;
    decided November 23, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 366.)


text:
    In the Matter of the Application of Sarah Levitch, as Administratrix of the Estate of Ray L. Levitch, Deceased, Respondent, against The Board of Education of the City of New York, Appellant.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 373.)


text:
    Burton W. Farnham, Respondent, v. Grand Central Packard Renting Corporation, Appellant, Impleaded with Another.

      Appeal — unanimous affirmance — motion to dismiss appeal without permission granted.

      Farnham v. Grand Central Packard Renting Corp., 217 App. Div. 799, appeal dismissed.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
    Motion to dismiss appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 2, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.
    The motion was made upon the ground that no appeal lay as of right to the Court of Appeals and permission to appeal had not been granted.

      J. Harris Loucks for motion.

      David B. Sugarman opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion,


text:
    Bernard Bergman, Respondent, v. S. Charles Hirschberg, Appellant.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 624.)


text:
    Maria Maltese, as Administratrix of the Estate of Nicholas Maltese, Deceased, Appellant, v. Overseas Shipping Company, Inc., Respondent.

      Appeal —failure to file undertaking — motion to dismiss denied on service of copy of undertaking within ten days and payment of costs.

    Reported below, 217 App. Div. 754.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 28, 1926, affirming a judgment in favor of defendant entered upon a verdict directed by the court. Also motion to require acceptance of service of copy of undertaking with notice of filing.
    The motion to dismiss was made upon the ground that no undertaking had been filed.

      Ralph Stout for appellant.

      Norman G. Hewitt for respondent.
   Motion to require respondent to accept copy of undertaking granted on payment of ten dollars costs and service within ten days. In case undertaking is served and costs paid, motion to dismiss appeal denied, with ten dollars costs; otherwise, granted, and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York, Respondent, v. Albert B. Cory, Appellant.

      Appeal — failure to prosecute — motion to dismiss granted.

      People v. Cory, 217 App. Div. 778, appeal dismissed.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 25,1926, which affirmed a judgment rendered at a Trial Term for the county of Kings upon a verdict convicting the defendant of the crime of grand larceny in the second degree.
    The motion was made upon the ground of failure by defendant to prosecute the appeal.

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


text:
    In the Matter of Eugene F. McGee, Appellant. Association of the Bar of the City of New York, Respondent.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
   Motion for reargument denied, without costs. (See 242 N. Y. 581.)


text:
    Charles L. Apfel, Appellant, v. Frank Auditore, Defendant. Sacramento Steamship Company, Inc., et al., Respondents, Impleaded with Another.

      Appeal — intermediate order — appeal to Court of Appeals without permission dismissed.

      Apfel v. Auditore, 217 App. Div. 724, appeal dismissed.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 21,1926, which reversed an order of Special Term granting a motion by plaintiff for summary judgment.
    The motion was made upon the ground that the order appealed from was not a final order and that permission to appeal had not been granted.

      John J. Kean for motion.

      Abraham H. Sarasohn opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York, Respondent, v. John Maxwell, Appellant.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
   Motion for reargument denied. (See 243 N. Y. 620.)


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

      Appeal — cross-appeals — motion to dismiss plaintiffs appeal unless it pay half of cost of printing record granted.

    Reported below, 215 App. Div. 857.
    (Submitted November 15, 1926;
    decided November 23, 1926.)
    Motion by defendant to dismiss a cross-appeal by the plaintiff from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 27, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. Also motion by plaintiff to compel defendant to insert plaintiff’s notice of appeal in its printed return.
    The motion to dismiss was made upon the ground that plaintiff had failed to file and serve its return on appeal.

      Thomas B. Kattett for motion.

      Walter A. Fullerton opposed.
   Motion to dismiss granted unless within ten days plaintiff pay defendant’s attorneys one-half of the expense of printing record on appeal and pay ten dollars costs of motion, in which event motion for insertion of plaintiff’s notice of appeal in such record is granted.


text:
    In the Matter of the Petition of the Town Board of West Seneca et al., Respondents, for Change of a Grade Crossing. Western New York and Pennsylvania Railway Company et al., Appellants; The Public Service Commission of the State of New York, Respondent.

      Highways — railroads — grade crossing — order directing elimination of grade crossing by bridge over tracks — proper to provide for structure sufficient to carry street railway track.

      Matter of Town Board of West Seneca, 215 App. Div. 793, affirmed.
    (Argued November 15, 1926;
    decided November 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 23, 1925, which affirmed an order of the Public Service Commission of the State of New York directing the alteration of a crossing at grade of Union road in the town of West Seneca, Erie county, and the tracks of the Western New. York and Pennsylvania railroad, by means of a bridge sufficient to carry such highway over the tracks. The appeal was based upon an objection to the portions of said order providing that the elevated structure to carry said highway shall be built to accommodate one street railway track on the west side thereof, and that the approaches to said structure shall have an added width of ten feet along the west side thereof for a street railway track.

      Frank Rumsey for appellants.

      William, J. Daetsch for petitioners, respondent.

      Harry Myron Chamberlain and Charles G. Blakeslee for Public Service Commission, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. American Woolen Products Company, Inc., Respondent, v. State Tax Commission, Appellant.

      Appeal — tax — certiorari — order of Appellate Division annulling franchise tax assessment and remitting proceeding to Tax Commission not final order and not appealable to Court of Appeals as of right.

      People ex rel. Am. W. P. Co., Inc., v. /State Tax Comm., 213 App. Div. 493, appeal dismissed.
    (Argued November 15, 1926;
    decided November 30, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered August 25, 1925, which annulled, on certiorari, a determination of the State Tax Commission assessing a franchise tax against the relator and remitted the proceeding to the Commission.

      Albert Ottinger, Attorney-General (Wendell P. Brown and C. T. Dawes of counsel), for appellant.

      Irving Smith, Jr., for respondent.
   Appeal dismissed, with costs, on ground order is not a final one; no opinion.

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


text:
    The People of the State of New York ex rel. Harry Bessmore, Appellant, v. Harry Honeck, Warden of the City Prison, County of Kings, Defendant. The People of the State of New York, Respondent.

      Crimes — indeterminate sentence — habeas corpus — indeterminate sentence on conviction for disorderly conduct warranted where previous convictions are shown — writ of habeas corpus dismissed.

      People ex rel. Bessmore v. Honeck, 216 App. Div. 815, affirmed.
    (Submitted November 15, 1926;
    decided November 30, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 16, 1926, which reversed an order of Special Term sustaining a writ of habeas corpus, dismissed said writ and remanded the relator to custody. Relator was convicted of disorderly conduct. (Penal Law, § 722, subd. 6.) The question was whether the evidence produced at the hearing and admissions of relator as to previous convictions brought the case within the provisions of section 4 of the Parole Commission Act, as amended by chapter 287 of the Laws of 1916, authorizing an indeterminate sentence.

      K. Henry Rosenberg for appellant.

      Joab H. Banton, District Attorney (.Michael J. Driscoll of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    Jessie L. Louderback, Respondent, v. The Board of Education of the City of New York, Appellant.

      New York city ■ — ■ teachers — action by school teacher to recover salary alleged to be due.

      Louderback v. Board of Education, 216 App. Div. 805, affirmed.
    (Argued November 15, 1926;
    decided November 30, 1926.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 9, 1926, unanimously affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff to strike out the answer and for judgment on the pleadings. The action was brought by the plaintiff, a visiting teacher in the employ of the defendant, on her own behalf and on behalf of other visiting teachers who assigned their claims to her, for arrears of salary alleged to be due pursuant to schedule A-3 of section 883 of the Education Law, added to said law by chapter 645 of the Laws of 1919, as amended by chapter 680 of the Laws of 1920, either from the' date when such statutes and salary schedules adopted thereunder by the board of education became effective, if their appointments as visiting"teachers were made prior thereto, or from the date of such appointments down to the 1st day of April, 1925.

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict and John F. O’Brien of counsel), for appellant.

      Arthur C. Mendel for respondent.
   Judgment affirmed,- with costs; no opinion.

Concur: Hi-scock, Ch. J., Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ.


text:
    The People of the State of New York ex rel. George A. Boyd, Appellant, v. William E. Walsh et al., Constituting the Board of Appeals of the City of New York, Respondents.

      New York city — building zones — application for permit to change stable to garage properly denied.

      Matter of Boyd v. Walsh, 217 App. Div. 461, affirmed.
    (Submitted November 16, 1926;
    decided November 30, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 4, 1926, which reversed an order of Special Term annulling on certiorari a determination of the board of appeals of the city of New York and reinstated and confirmed said determination. The board had disapproved and denied relator’s application for a permit to alter a stable situated at Nos. 173-177 West Eighty-ninth street in the city of New York for use as a garage for more than five motor vehicles, on the ground that such alteration would violate the building zone regulations.

      Vincent L. Leibell for appellant.
    ' George P. Nicholson, Corporation Counsel (John F. O’Brien and William T. Kennedy of counsel) Jx>r respondents.
   Order affirmed, with costs; no opinion.

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


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    The People of the State of New York ex rel. Frederick W. Bass et al., Appellants, v. M. Frank Loughman et al., Constituting the State Tax Commission, Respondents.

      Tax — income tax ■— partnership — income received by surviving partners and paid to estate of deceased partner pursuant to terms of partnership agreement — assessment of income tax thereon proper.

      People ex rel. Bass v. Loughman, 218 App. Div. 795, affirmed.
    (Argued November 16, 1926;
    decided November 30, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 12,1926, which confirmed, on certiorari, a determination of the State Tax Commission assessing an additional income tax against the relators. The question was whether partnership income received by surviving partners and paid over to the estate of a deceased partner, pursuant to the terms of the partnership agreement, should be taxed as income to the surviving partners or as income to the estate of the deceased partner. The Appellate Division held that the payment was one of principal for the deceased partner’s interest in good will and that an income tax was properly assessed against the surviving partners for the amount thereof.

      Harold R. Medina and Rufus Cole Van Ahen for appellants.

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

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


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    The People of the State of New York ex rel. Rudolph H. Lee, as Executor of George C. Lee, Deceased, Respondent, v. John F. Gilchrist et al., Constituting the State Tax Commission, Appellants.

      Tax — income tax — partnership — income received by surviving partners and paid to estate of deceased partner pursuant to terms of partnership agreement — improper assessment of income tax thereon.

      People ex rel. Lee v. Gilchrist, 215 App. Div. 576, affirmed.
    (Argued November 16, 1926;
    decided November 30, 1926.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 8, 1926, which annulled on certiorari a determination of the State Tax Commission assessing an additional income tax upon the estate of George C. Lee, deceased. The question was whether partnership income received by surviving partners and paid over to the estate of a deceased partner, pursuant to the terms of the partnership agreement, should be taxed as income to the surviving partners or as income to the estate of the deceased partner. The Appellate Division held that the sum in question was received by the estate not as income, but as a payment of principal from the surviving partners for the deceased partner’s interest in good will.

      Albert Oitinger, Attorney-General (Henry S. Manley of counsel), for appellants.

      Martin Boob and Jacob H. Shaffer, for respondent.
   Order affirmed,- with costs; no opinion.

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


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    Joseph Canepi Contracting Company, Inc., Appellant, v. City of Yonkers, Respondent.

      Practice ■ — ■ reference — action for breach of contract — compulsory reference improper.

      Canepi Contr. Co., Inc., v. City of Yonkers, 217 App. Div. 775, reversed.
    (Argued November 16, 1926;
    decided November 30, 1926.)
    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 a compulsory reference. Two actions were brought, one by plaintiff, and the other by defendant, to recover for alleged breach of a contract for" grading and paving a street. The actions have been consolidated. Plaintiff claims damages for delay and extra work. Defendant claims excess in cost of completing work over the contract price.
    The following question was certified:

      “ Is this an action- in which the court, without the consent of plaintiff, may direct the trial of the issues of fact by a referee? ”

      Howard G. Wilson, Frederick W. Newton and John C. Wait for appellant.

      Arthur C. Hume, Corporation Counsel {Joseph W. Bryan and Richard E. Fitz Gibbon of counsel), for respondent.
   Orders reversed, with costs in this court and Appellate Division, and motion denied, with ten dollars costs. Question certified answered in the negative on the authority of Untermyer v. Beinhauer (105 N. Y. 521); Johnson v. A. A. R. R. Co. (139 N. Y. 449).

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


text:
    Roosevelt L. Clark, Appellant, v. J. & C. Auditore, Inc., Respondent.

      Appeal — motion to dismiss appeal denied.

    Reported below, 216 App. Div. 842.
    (Submitted November 22, 1926;
    decided November 30, 1926.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, modifying and affirming as modified a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.
    The motion was made upon the ground that the appeal was not perfected within the time provided in section 592 of the Civil Practice Act.

      John B. Johnston for motion.

      John J. Kean opposed.
   Motion denied, with ten dollars costs. •


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    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.

      Contract — sale —• damages —• measure of damages for breach of contract to purchase goods.

    In an action for damages caused by the anticipatory repudiation by defendants of an irrevocable letter of credit, under the circumstances here disclosed, the plaintiff’s measure of damages is the difference between the market value of the goods on the date when its loss was to be determined and the price which, under the contract of sale, it was to receive therefor, and a holding that because it had a contract to purchase the goods for more than its market price the profit it would have made on this particular transaction is the injury it has sustained from the wrongful act of defendants is erroneous. Nor is the situation altered by the fact that the original seller to plaintiff has consented to abrogate his contract. The rule does not vary because of the generosity of third parties.

      Foglino & Co., Inc., v. Webster, 217 App. Div. 282, 300, modified.
    (Argued October 20, 1926;
    decided December 3, 1926.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 7, 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, bringing up for review an order of said Appellate Division which reversed an order denying a motion to amend the complaint so as to include a demand for interest and granted said motion. The action was for damages for the anticipatory breach or repudiation by the defendants of an irrevocable documentary letter of credit. The complaint alleged the making of a contract by which the plaintiff agreed to sell to the Italian Ministry of Shipping two cargoes of coal; that the Italian Ministry of Shipping undertook to open an irrevocable credit in plaintiff’s favor for the payment of the coal against certain enumerated shipping documents; that thereupon the defendants furnished such a letter of credit, being the letter of credit in suit; that before the expiration of the said credit, the defendants wrongfully withdrew the credit and repudiated their liability thereunder and that the plaintiff duly performed.

      Avel B. Silverman, Louis J. Vorhaus and David Vorhaus for plaintiff, appellant and respondent.

      Clifton P. Williamson and, Edward W. Bourne for defendants, respondents and appellants.
   Per Curiam.

We agree with the result reached by the Appellate Division in this case, except as to the question of damages. The trial court fixed their measure as the difference between the market value of the coal on the date when the loss of the plaintiff was to be determined0 and the price which under the contract of sale it was to receive therefor, or $48,750. Because it had a contract, however, to purchase this coal for more than its market price, the Appellate Division has said that the profit it would have made on this particular transaction is the loss it has sustained by the wrongful act of the defendants. It, therefore, reduced its judgment to $22,500.

Having obligated itself to purchase 15,000 tons of coal at $31.75 per ton when the market price was about $30.05, because it was to receive about $33.25 if the transaction had been completed, it would have made, it is true, profits of $1.50 a ton. But the sale failed. Plaintiff is left with 15,000 tons of coal on its hands, or for which it is responsible.. For it it has paid or must pay $31.75 per ton. Its market value is $30.05. On each tori it will lose $1.70, or $25,500. Yet it is said it is compensated by the judgment as reduced. We do not think so.

It is argued, however, that on the facts before us such a situation is but theoretical. The original seller of the coal has consented to abrogate its contract. Even so, the rule to be adopted does not vary because of the generosity of third parties.

The judgment of the Appellate Division should be modified so as to award the plaintiff judgment in the sum of $48,750 as damages, with interest thereon from April 30, 1920, and as so modified affirmed, with costs to the plaintiff.

His cock, Ch. J., Cakdozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment accordingly.


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    In the Matter of Proving the Will of Patrick Sullivan, Deceased. Julia Markson et al., Appellants; Thomas F. Magner et al., Respondents.

      Will — probate — testamentary capacity — insufficient proof of senile dementia.

      Matter of Sullivan, 216 App. Div. 266, affirmed.
    (Argued September 30, 1926;
    decided December 3, 1926.)
    Appeal from a judgment, entered February 16, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a decree of the Kings County Surrogate’s Court which denied probate of a paper propounded as the last will of Patrick Sullivan, deceased, and remitting the matter to the Surrogate’s Court with a direction that the will be admitted to probate. The will was contested on the ground that at the time of its execution testator was suffering from senile dementia and lacked testamentary capacity. The Appellate Division held that the contention was not sustained by satisfactory evidence.

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

      Patricio E. Callahan, Thomas F. Magner and James P. Judge for respondents.
   Judgment affirmed, with costs; no opinion.

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


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    Frank B. Brown et al., as Trustees under the Will of Andrew B. Brown, Deceased, et al., Respondents, v. Theodore L. Popp et al., as Executors of Edward Kener, Jr., Trustee under the Will of Andrew B. Brown, Deceased, Respondents, and Duncan Edwards, as Executor of Harriet M. S. Brown, Deceased, Appellant.

      Will — trust — construction of will providing for annuity to widow and giving residuary estate to brother •— release of residue to brother upon setting aside sum sufficient to produce annuity.

      Brown v. Kener, 215 App. Div. 794, affirmed.
    (Argued November 16, 1926;
    decided December 3, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 30, 1925, affirming a judgment construing the will of Andrew B. Brown, deceased, entered upon a decision of the court at a Trial Term without a jury. The will provided among other things for the payment of an annuity to the widow of testator annually during her life and gave the residue of his estate to his brother. The question was whether upon the trustees setting aside a sum sufficient to produce such annuity the balance of the estate might be turned over to the residuary legatee.

      Edward W. Hamilton and Duncan Edwards for appellant.

      S. Wallace Dempsey and Glen R. Bedenkapp for plaintiffs, respondents.

      Wilber E. Houpt for defendants, respondents.
   Judgment affirmed, with costs to respondents payable out of estate; 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. Michael Kosmoski, Appellant.

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

    (Argued November 17, 1926;
    decided December 3, 1926.)
    Appeal from a judgment of the Supreme Court, rendered September 25, 1925, at a Trial Term for the county of Erie upon a verdict convicting the defendant of the crime of murder in the first degree.

      Sidney N. Eisner for appellant.

      Guy B. Moore, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

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


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    Otto I. Metzger, Respondent, v. 46 West 95th Street, Inc., Appellant, Impleaded with Others.

      Beal property — party walls — placing of windows without permission in party wall restrained.

      Metzger v. 46 West 95th St., Inc., 216 App. Div. 289, affirmed.
    (Argued November 17, 1926;
    decided December 3, 1926.)
    Appeal from a judgment, entered April 8, 1926, upon 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 decision of the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to compel the closing of window openings placed in a party wall which had been erected pursuant to a written agreement. The Appellate Division held that neither directly nor by implication was any right conferred to place window openings in the wall.

      George A. Spiegelberg for appellant.

      Arnold J. Brock and Frank Veiih for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Parish and Bingham Corporation, Appellant, v. Larrabee-Deyo Motor Truck Company, Respondent.

      Contract — sale — action to recover balance due for goods sold and delivered — counterclaim for damages from failure to deliver goods at time specified.

      Parish & Bingham Corp. v. Larrabee-Deyo M. T. Co., 215 App. Div. 845, affirmed.
    (Argued November 18, 1926;
    decided December 3, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 12, 1926, modifying and affirming as modified a judgment in favor of defendant entered upon the report of a referee. Plaintiff brought this action to recover a balance due from the defendant on the purchase price of a quantity of motor truck frames manufactured, sold and delivered by plaintiff to the defendant during the years 1920 and 1921, in pursuance of a written contract between the parties made in October, 1919, which contained an express warranty that the frames would be delivered on or before February 1, 1920. The defendant admitted the correctness of the balance claimed to be due and counterclaimed for special damages suffered by reason of plaintiff’s breach of warranty to deliver the frames within the time specified by reason of which failure it was alleged the defendant was unable to fulfill its agreements to manufacture and deliver trucks to customers who canceled their orders on account of nondelivery.

      Archibald Howard for appellant.

      Israel T. Deyo for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Maurice Hosch, an Infant, by Frances Levine, His Guardian ad Litem, Respondent, v. New York Telephone Company, Appellant. Edward Hosch, Respondent, v. New York Telephone Company, Appellant.

      Assault — master and servant — action to recover for injury to a boy from assault by employee of defendant.

      Hosch v. New York Telephone Co. (2 cases), 216 App. Div. 848, affirmed.
    (Argued November 19, 1926;
    decided December 3, 1926.)
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 26, 1926, affirming a judgment in favor of plaintiff entered upon a verdict. The first action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The second to recover for loss of services and expense by reason of such accident. It was alleged that an employee of defendant in the course of his employment attempted to take from the infant plaintiff a tool which he had picked up and while thus engaged threw him to the ground causing the injury coifiplained of.

      Irving W. Young, Jr., Carl M. Abromeit, Cyrus F. Smythe and Charles T. Russell for appellant.

      Jay S. Jones, Edward J. Fanning and Ralph Q. Barclay for respondent.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    Farmers’ Reliance Mutual Insurance Company, Respondent, v. The Lane Construction Corporation, Appellant. Joseph W. Porter et al., Respondents, v. The Lane Construction Corporation, Appellant.

      Negligence — fire — action to recover loss from burning of barn through negligence.

      Farmers’ B. M. Ins. Co. v. Lane Construction Co., 212 App. Div. 528, affirmed.

      Porter v. Lane Construction Co., 212 App. Div. 528, affirmed.
    (Submitted November 19, 1926;
    decided December 3, 1926.)
    Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 17, 1925, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court at a Trial, Term without a jury. The first action was to recover the amount of fire insurance paid by plaintiff owing to destruction of a barn by fire alleged to have been caused by the negligence of defendant. - The second action was to recover the difference between the amount of insurance so paid and the value of the building and its contents so destroyed.

      James 0. Behring for appellant.

      H. C. Mandeville and E. W. Personious for Farmers’ Reliance Mutual Insurance Company, respondent.

      H. C. Harpending and H. B. Harpending for Joseph" W. Porter et al., respondents.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    Clover Crest Stock Farm, Inc., Respondent, v. Pacific Fire Insurance Company, Appellant, Impleaded with Another.

      Insurance {fire) —■ action to recover on policy of fire insurance ■ — • defenses of fraud and breach of contract.

      Clover Crest Stock Farm, Inc., v. Pacific F. Ins. Co., 211 App. Div 834, affirmed.
    (Submitted November 19, 1926;
    decided December 3, 1926.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 16, 1925, 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 to recover on a policy of fire insurance. The defenses were that the policy was procured by false and fraudulent representations and that the terms thereof were breached by plaintiff.

      Thomas F. Rogers for appellant.

      James 0. Sebring for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    The People of the State of New York, Appellant, v. Frank Silinsky et al., Respondents.

      Appeal - — • reversal by Appellate Division of finding of fact but otherwise judgment unanimously affirmed — appeal without permission to Court of Appeals dismissed.

      People v. Silinsky, 217 App. Div. 247, appeal dismissed.
    (Submitted November 16, 1926;
    decided December 3, 1926.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered t July 14, 1926, modifying by reversing a finding of fact and as modified unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.

      The motion was made upon the ground that the judgment itself was not modified and that permission to appeal not having been obtained, the Court of Appeals had no jurisdiction to entertain the appeal.

      George Z. Medalie for motion.

      Albert Ottinger, Attorney-General (Keyes Winter and Frederick E. Lewis of counsel), opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York, Appellant, v. Hyman Jackerson, Respondent.

      Appeal ■ — • motion to dismiss appeal denied.

    Reported below, 214 App. Div. 822.
    (Submitted November 29, 1926;
    decided December 3, 1926.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered July 9, 1925, which reversed on the law a judgment of the Queens County Court rendered upon a verdict convicting the defendant of the crime of receiving stolen property and granted a new trial.
    The motion was made upon the ground that the Court of Appeals had no-jurisdiction to entertain the appeal.

      Meyer Glickstein for motion.

      Richard S: Newcombe, District Attorney (Thomas F. Thornton of counsel), for respondent.
   Motion denied.


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    Edna K. Liebmann, Respondent, v. Miniature Incandescent Lamp Corporation, Appellant.

      Corporations — stocks and stockholders — contract — sale — action on contract of sale of stock to corporation to recover stipulated proportional share of reserve fund.

      Liebmann v. Miniature Incadescent Lamp Corp., 217 App. Div. 368, modified.
    (Argued December 3, 1926;
    decided December 31, 1926.)
    Appeal from a judgment, entered August 2, 1926, upon 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 without a jury and directing judgment in favor of plaintiff. The action was by a stockholder of defendant corporation to recover under an alleged agreement by the terms of which she was to receive her proportionate share of the unused portion of certain reserves as shown by a balance sheet embodied in the terms of a sale by which she transferred her shares to the corporation.

      W. N. Seligsberg for appellant.

      John Thomas Smith and Anthony J. Russo for respondent.
   Per Curiam.

Distribution of unused portion of the, reserves set up was to be made on January 20th, 1922,' only in case these reserves proved too high.” Proof that the United States government claimed that the defendant was liable for an additional tax in the sum of $17,581.79 showed at least prima facie that the reserve for Federal taxes might prove insufficient. The trial judge correctly held that the defendant might retain moneys to meet that claim. If thereafter the defendant was not compelled to pay the additional tax the plaintiff might bring a new action for distribution of the amount withheld. Apparently by inadvertence the judgment of the Appellate Division includes in the amount of the net surplus which should be distributed among the stockholders items aggregating $3,513.08 which the plaintiff concedes should be deducted before distribution.

In other respects we agree with the conclusions arrived at by the Appellate Division.

Judgment of the Appellate Division should be modified to the extent of providing that the plaintiff is entitled to her proportionate share in a net surplus of $15,002.02 instead of a net surplus of $36,096.86, and as so modified affirmed, without costs.

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

Judgment accordingly.