text:
    Vernon Metal and Produce Company, Inc., Appellant, v. The Joseph Joseph & Brothers Company, Respondent.

      Accounting — contract — joint venture — action for an accounting under a contract of joint venture — net profits.

      Vernon M. & P. Co. v. Joseph & Bros. Co., 212 App. Div. 358, modified.
    (Argued October 26, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered April 7, 1925, upon an order of the Appellate Division, of the Supreme Court in the first judicial department, which reversed a judgment in favor of plaintiff entered upon an order of Special Term modifying the report of a referee and directed judgment in favor of defendant. The action was for an accounting under a contract of joint venture by the terms of which the defendant agreed to reimburse the plaintiff for what it had paid for certain scrap metal, to put the material in merchantable condition, sell the same and pay to the plaintiff one-half of the profits.

      A. S. Gilbert and Alfred Frankenthaler for appellant.

      Henry C. Moses for respondent.
   Per Curiam.

Under the contract for a division of the net profits' of the enterprise, the defendant was entitled to charge the plaintiff’s share with its proper proportion of the defendant’s overhead expenses, in the absence of circumstances satisfying the court of the intention of the parties that such expenses were to be excluded. True it is that some circumstances tending to such exclusion may be discovered in this record, but they are not so decisive that their significance may be determined as an inference of law. The accounts rendered by the defendant at the close of the transactions did not give rise to an estoppel. They did not even result in accounts stated, for the plaintiff was unwilling to accept them. In default of evidence that overhead expenses had ever been the subject of discussion or agreement, the omission of such items from the accounts rendered might be found by the triers of the fact to have been inadvertent and erroneous.

We think, however, that the amount allowed as overhead is excessive in that included in it are items for which allowance had already been made under other headings or classifications. The result is that the plaintiff has borne the same expenses twice. There is a possibility that the defendant could have explained away this inference, and shown that the duplication, though apparent, was unreal. The explanation has not been given. Upon the face of the accounts, the duplication exists, and the burden of justifying the charges was on the defendant as the accounting party. We think the following items must be excluded: Twenty per cent of the salary of the manager at the Modena Yard, $309; travel and living expenses, $1,025.53 (since the expenses of travel are also included in the overhead); and general expenses $1,202.39; total $2,536.92.

The effect of this reduction will be to wipe out the affirmative judgment for $909.86 in favor of the defendant, and to award a judgment of $1,627.06 in favor of the plaintiff.

Other items in dispute were properly disposed of in the court below.

The judgment of the Appellate Division and that of the Special Term should be modified by directing judgment in favor of the plaintiff for $1,627.06 with costs in all courts.

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

Judgments modified; etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Thomas F. Murray, Appellant, v. Robert Mitchell Furniture Company, Respondent.

      Contract — services — commissions — action to recover for alleged breach of contract of employment. '

      Murray v. Mitchell Furniture Co., 213 App. Div. 863, modified.
    (Argued October 27, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department entered April 26, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover for an alleged breach of contract of employment by the terms of which defendant agreed to employ plaintiff as a salesman and pay him commissions on sales of phonograph cabinets.

      Finis E. Montgomery for appellant.

      Keyes Winter and Leo J. Brumleve, Jr., for respondent.
   Per Curiam.

Under the facts of this case the plaintiff •is entitled to commissions on $72,490.32, received on May 11, 1921, by the defendant from the Columbia Gramophone Manufacturing Company for the purchase of materials originally bought by the former for use in the manufacture of cabinets under two certain contracts, each dated February 20,1920, with interest on the amount of such commissions from said May 11, 1921, to February 25, 1924. The judgments of the courts below should be modified by increasing the amount of the judgment awarded to the plaintiff against the defendant from the sum of $2,381.41 to the sum of $3,650.95, and as so modified the said judgments should be affirmed, with costs in this court and the Appellate Division to the plaintiff.

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

Judgment accordingly.


text:
    Leemor Realty Corporation et al., Respondents, v. Nathaniel Tonkin et al., Appellants, and Carlton-Summerfield Estates, Inc., Respondent.

      Equity —joint venture — agreement to share profits — action to restrain collection of or to vacate and set aside judgment or to have it adjudicated that part of judgment belonged to plaintiffs.

      Leemor Realty Corp. v. Tonkin, 210 App. Div. 857, modified.
    (Argued October 28, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered July 18, 1924, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendants, appellants, entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiffs and defendant, respondent, upon new findings.

      Oswald N. Jacoby for appellants.

      William Qodnick and Irving C. Maltz for plaintiffs, respondents.

      Saul Gordon and Hyman Dominitz for defendant, respondent.
   Per Curiam.

In October, 1919,. the Carlton-Summer-field Estates, Inc., had a leasehold interest in a tract of land on Long Island, which it was desirous of selling for $140,000. The appellant Nathaniel Tonkin undertook to bring about the sale and if he succeeded in doing so the Carlton-Summerfield Estates agreed to pay bim a commission of $6,950. Subsequently, Tonkin entered into an agreement with the respondent Sklar and the Leemor Realty Corporation by which the three were to purchase the property at the price named. When they came to close the title, Sklar and the Leemor Realty Corporation ascertained that Tonkin was to receive the commission above stated, and they thereupon insisted that such commission belonged to the co-adventurers in the proportion to which they had agreed to divide the profits, viz., one-half to Sklar, one-fourth to the Leemor Realty Corporation, and one-fourth to Tonkin. Tonkin finally agreed that such disposition should be made of the commission, and thereupon signed the following paper:

This is to certify that I, the undersigned, have waived my right to the commission for the sale of the bungalows at Carlton & Summerfield Avenues, at Arverne, and I have agreed that the same be applied towards the reduction of the price for the said property.

Dated, February 5th, 1920.

Witness, L. L. Levine. N. TONKIN.”

And . the commission, according to the findings unanimously affirmed by the Appellate Division, was thus paid.

An action was subsequently brought by Tonkin against Sklar, to recover such commission or some part thereof. At the trial the complaint was dismissed, the trial court finding that Tonkin had been paid all of the commissions to which he was entitled. Judgment was entered to this effect and the same, on appeal to the Appellate Division, second department, was unanimously affirmed.

Tonkin later brought an action in the first department against the Carlton-Summerfield Estates, Inc., to recover the commission which it had agreed to pay for the sale of the property, viz., $6,950. Strange as it may seem in view of the judgment in the action which he brought against Sklar, he obtained a verdict for $4,450. From the judgment entered thereon, an appeal was taken to the Appellate Division, first department, where such judgment was unanimously affirmed.

Then the present action was commenced for the purpose of restraining the collection of, or of vacating and setting aside the judgment against the CarltonSummerfield Estates, Inc., or of having it adjudicated that the judgment in equity belonged one-fourth to the Leemor Realty Corporation, one-fourth to Tonkin, and one-half to Sklar. In order to prevent the plaintiffs from restraining the collection of the judgment, Tonkin assigned the same to his wife, Lillian Tonkin. The trial court found that this was done without any consideration whatever and was void.

In view of the fact that the Leemor Realty Corporation and Sklar each assert that they have received all the commissions to which they are entitled as members of the syndicate or joint venture, we are of the opinion that, to that extent, the collection of the judgment should be restrained and the judgment vacated. This leaves one-fourth of the judgment to be collected by Tonkin or his wife, and that is all to which they are entitled.

The judgment, upon every principle of honesty and fair dealing under the agreement by which the Leemor Realty Corporation, Sklar and Tonkin purchased the leasehold interest of the Carlton-Summerfield Estates, belongs to them in the proportion in which they had agreed to share the profits. Profits were made and they have been divided and paid over in the way in which it was agreed they should be. This works out justice between the .parties and prevents what would otherwise be, at least so far as the Leemor Realty Corporation and Sklar are concerned, an injustice.

Tonkin recovered in his action at law the judgment against the Carlton-Summerfield Estates. That judgment, however, according to the findings, belonged to the syndicate. We think a court of equity may well exercise its equitable powers to prevent the Leemor Realty Corporation and Sklar from acquiring any interest therein, since they repudiate and insist that the commissions have been fully paid. So far as the interest of Tonkin or his assignee in the judgment (viz., one-fourth) is concerned, we do not think a proper case has been made upon the record to justify interference by a court of equity. For that reason we think that the proper disposition to be made of this appeal is the one above indicated.

The judgment appealed from, therefore, should be modified in accordance with opinion and, as so modified, affirmed, without costs.

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

Judgment modified, etc.


text:
    Seaside Home for Crippled Children, Inc., Appellant, v. Atlantic Beach Associates, Respondent.

      Practice — trespass — title — action to enjoin trespass upon real property-—judgment improper inform. -
    A judgment in an action to restrain a trespass upon real property, which incorporates therein all of the findings of fact not simply by way of recital but preceded by the words “ It is ordered and decreed ” is improper in form.

      Seaside Home for Crippled Children, Inc., v. Atlantic Beach Associates, 212 App. Div. 883, modified.
    (Argued October 28, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 24, 1925, unanimously affirming a-judgment in favor of defendant entered upon a decision of the court on trial at Special Term. The action was to enjoin an alleged continuing trespass upon real property. The answer denied plaintiff’s title to said property.

      Abel E. Blackmar and Meier Steinbrink for appellant.

      Charles L. Woody, C. E. Bussell and J. Bussell Sprague for respondent.
   Per Curiam.

The solution of the dispute between the parties in this action depends upon the location of the easterly line of the appellant’s property. This raises a question of fact which has been determined in favor of the respondent and that determination has been unanimously affirmed by the Appellate Division. We may not interfere with this result.

The judgment, however, is not proper in form. All of the findings of fact have been incorporated therein, not simply by way of recital but preceded by the words “ It is ordered and decreed.” This is not the correct practice nor is it in accord with direction for judgment given by the trial judge at the conclusion of his findings. (Porter v. International Bridge Co., 200 N. Y. 234, 252.)

It should, therefore, be modified by striking therefrom all adjudications except those to the effect that the plaintiff has failed to prove that it owns the land upon which the defendant has entered and constructed its two rows of spiles and upon which it proposes to construct a bridge, and as so modified it should be affirmed, without costs.

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

Judgment accordingly.


text:
    Aktiebolaget Malareprovinsernas Bank, Respondent, v. The Globe and Rutgers Fire Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. Stuyvesant Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. The Insurance Company of the State of Pennsylvania, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. Glens Falls Insurance Company, Appellant. Aktiebolaget Malareprovinsernas Bank, Respondent, v. The Hanover Fire Insurance Company, Appellant.

      Insurance — action to recover on policies of war risk marine insurance —■ defense of deviation from voyage.

      Aktiebolaget M. Bank v. G. & R. Fire Ins. Co., 211 App. Div. 608, reversed.

      Aktiebolaget M. Bank v. Stuyvesant Ins. Co., 211 App. Div. 608, reversed.

      Aktiebolaget M. Bank v. Ins. Co. of Penn., 211 App. Div. 608, reversed.

      Aktiebolaget M. Bank v. Glens Falls Ins. Co., 211 App. Div. 608, reversed.

      Aktiebolaget M. Bank v. Hanover Fire Ins. Co., 211 App. Div. 608, reversed.
    (Argued October 15, 1925;
    decided November 24, 1925.)
    Appeal, in each of the above-entitled actions, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 7, 1925, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The actions were to recover on policies of limited war risk insurance covering a steamship. The defense was that the vessel deviated from the voyage for which she was insured. It appeared that on the voyage from Gothenberg to New York the vessel was seized by a British war vessel and taken into Hull, England, where she was unloaded and chartered to that government for a voyage to Sweden. On the return trip the vessel was sunk by a German submarine.

      Robert Kelly Prentice for appellants.

      J. B. Engel and J. G. Engel for respondents.
   In each case judgments reversed and complaint dismissed, with costs in all courts, on opinion in Aktiebolaget Malareprovinsernas Bank v. American Merchant Marine Ins. Co. (241 N. Y. 197).

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


text:
    Bell Belair, as Administratrix of the Estate of Harry Baker, Deceased, Appellant, v. State of New York, Respondent.

      State ■—• negligence ■— highways — defect in State highway — claim against State for death of passengers in automobile dismissed.

      Belair v. State, 212 App. Div. 206, affirmed.
    (Argued October 15, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered March 28, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon an award of the Court of Claims and directing a dismissal of a claim against the State for the death of plaintiff’s intestate, alleged to have been occasioned through a defect in a State highway. It appeared that while intestate was a passenger in an automobile traveling upon the highway between Canton and Potsdam, the driver turned to the right on the dirt shoulder of the road to pass an approaching car and when he turned back one of the rear wheels of the car dropped into a hole causing it to swerve so that the driver lost control and the car ran into the ditch on the other side of the road.

      Wordsworth B. Matter son and William F. Quinn for appellant.

      Albert Ottinger, Attorney-General (.Albert J. Danaher of counsel), for respondent. ■
   Judgment affirmed, with costs; no opinion.

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


text:
    Joannes Brothers Company, Respondent, v. Federal Sugar Refining Company, Appellant.

      Contract — sale — action to rescind contract to purchase on ground of defect in quality.

      Joannes Brothers Co. v. Federal Sugar Refining Co., 212 App. Div. 868, affirmed.
    (Argued October 19, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 20, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to rescind a contract for the purchase of fine granulated sugar and to recover the purchase price on the ground that the sugar delivered was of an inferior quality.

      Ernest A. Bigelow and Harold D. Beatty for appellant.

      George T. Hogg, John F. Martin and Gerald F. Clifford for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Ida E. Dehmer, as Executrix of Henry Dehmer, Deceased, Appellant, v. New York Telephone Company et al., Respondents.

      Negligence —* telephone companies — occupant of vehicle struck by wire strung low over highway ■—failure of proof.

      Dehmer v. N. Y. Tel. Co., 208 Ap'p. Div. 745, affirmed.
    (Argued October 19, 1925;
    decided November 24, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 11, 1924, affirming a judgment in favor of defendants entered upon a verdict in an action to recover for the death of plaintiff’s testator alleged to have been occasioned through the negligence of defendant. The complaint alleged that while plaintiff’s testator was riding on a motor truck along Fox Island road in the village of Port Chester he came in contact with one of defendant telephone company’s wires which was strung across said road, pulled from the truck and killed. It was shown that other low wires crossed the highway and there was no direct proof that plaintiff’s testator came in contact with said defendant’s wire,

      jFrederick P. Close and Henry K. Heyman for appellant.

      John A. Delahanty, Benjamin F. Briggs, Cyrus F. Smythe and Charles T. Russell for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Adolph Peterson, Respondent, v. United States Shipping Board Emergency Fleet Corporation, Appellant.

      Negligence■—master and servant — ships and shipping — seaman injured from fall through open hatchway.

      Peterson v. U. S. Shipping Board Emergency Fleet Corp., 209 App. Div. 824, affirmed.
    (Argued October 19, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from a judgment of the Appel- . late Division of the Supreme Court in the second judicial department, entered May 5, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. Plaintiff while employed as a seaman on one of the defendant’s steamships in New York harbor, fell through an open hatchway and received the injuries complained of. It was alleged that the accident was caused by the negligence of defendant’s boatswain in prematurely directing the replacement of hatch covers thus leaving plaintiff who was working between decks near the hatchway in darkness.

      Frederick H. Cunningham, Nathan A. Smyth and Ralph C. Greene for appellant.

      John Winans and J. Arthur Seidman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Vincenza Russo, Respondent, v. Building Operation Company, Appellant, Impleaded with Others.

      Negligence — elevators — open door into elevator shaft ■—injury from fall.

      Russo v. Building Operation Co., 209 App. Div. 861, afdrmed.
    (Argued October 19, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 10, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. Plaintiff while in the employ of a tenant in a loft building in charge of defendant, appellant, walked through an open elevator door upon the street level, intending to board the elevator, and fell to the bottom of the shaft, receiving the injuries complained of.

      Edward P. Mowton for appellant.

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

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


text:
    Paolo Sacco, as Administrator of the Estate of Luigi Sacco, Deceased, Appellant, v. Delaware and Hudson Company, Respondent.

      Negligence — master and servant — railroads — trackman struck by train while in performance of his duties.

      Sacco v. D. & H. Co., 213 App. Div. 471, affirmed.
    (Argued October 20, 1925;
    decided November 24, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 14, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action, under the Federal Employers’ Liability Act, to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant, his employer. The complaint alleged that while plaintiff’s intestate was engaged in the performance of his duties as a track, hand and was picking up tools which had been left upon the tracks by defendant’s section gang near Unadilla, he was struck without warning by one of defendant’s southbound milk trains proceeding at an excessive rate of: speed and received injuries which resulted in his death. The answer was a general denial and alleged contributory negligence.

      Walter A. Fullerton for appellant.

      Lewis E. Carr and N. P. Willis, for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    William A. Williamson, Appellant, v. Atlas Powder Company, Respondent.

      Commissions — action to recover broker’s commissions on sale of merchandise.

      Williamson v. Atlas Powder Co., 212 App. Div. 68, reversed.
    (Argued October 20, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered March 3,1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover broker’s commissions upon a sale of merchandise. Upon the trial no attempt was made to show that plaintiff was the producing cause of the sale but it was argued that plaintiff was entitled to the commission under a certain agreement by. the terms of which plaintiff surrendered a right to brokerage on another sale. The Appellate Division directed a dismissal of the complaint on the ground that the alleged agreement had not been pleaded.

      William H. Clark for appellant.

      James B. Duross for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division, on the dissenting opinion of Merrell, J., below.

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


text:
    David Scanlon, Respondent, v. Bing S. Stevens, Individually and as Executor of Elbert E. Stevens, Deceased, et al., Appellants.

      Trespass — flooding of lands by maintenance of dam at outlet of lake.

      Scanlon v. Stevens, 211 App. Div. 833, affirmed.
    (Argued October 20, 1925;
    decided November 24, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 20, 1924, affirming a judgment in favor of plaintiff entered upon a verdict. The action was in trespass to recover damages for the alleged flooding of plaintiff’s lands at the head of Lake Bonaparte in the town of Diana, alleged to have- been caused by the maintainance by the defendants of a dam across the outlet of Lake Bonaparte thereby impounding the waters of the lake and causing the water to rise to such a height that the lands of the plaintiff were overflowed and the damages alleged in the complaint sustained. The answer admitted the existence of the dam in question but denied that damage was caused by any act of the defendants in maintaining said dam and impounding the waters in said lake. It further alleged prescriptive rights to impound the waters in said lake to the height to .which they were raised.

      Thomas Burns, A. F. Mills and Fred K. Felshaw for appellants.

      W. A. Porter for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Millie Smith, Appellant, v. Massachusetts Bonding and Insurance Company, Respondent.

      Insurance (accident) — action to recover on policy of accident insurance — defense that death was caused by disease and not by accident.

      Smith v. Mass. Bonding & Ins. Co., 207 App. Div. 682, affirmed.
    (Argued October 21, 1925;
    decided November 24, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 11, 1924, reversing a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon a policy of accident and health insurance issued by the defendant to the plaintiff’s husband and in which the plaintiff was named as beneficiary. The complaint alleged that while the policy was in full force and effect the insured died from bodily injuries sustained through accidental means. The answer denied the material allegations of the complaint, denied performance of the conditions of the policy either by the insured or by the plaintiff, and by way of separate defense alleged non-liability by reason of a release executed by plaintiff’s intestate, also that false and fraudulent statements contained in the application for insurance vitiated the policy and that the cause of death was acute dilatation of the heart and not the accidental injury sustained by the insured.

      Alfred M. Bailey, Solon Weil and Frank A. Bellucci for appellant.

      Benjamin C. Loder and Herman Lenitz for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


text:
    Frank Deveso, Respondent, v. John W. Chandler, Appellant. Larkin & Company, Respondent, v. John W. Chandler, Appellant.

      Contract — sale — action to recover for failure to deliver merchandise sold “ F. O. B.”— defense that it was duty of plaintiff to offer payment at place of shipment.

      Deveso v. Chandler, 210 App. Div. 684, affirmed.

      Larkin & Co. v. Chandler, 210 App. Div. 684, affirmed.
    (Argued October 21, 1925;
    decided November 24, 1925.)
    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 November 21, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The actions were to recover for alleged failure to deliver potatoes sold by the defendant to the plaintiffs to be delivered “ F. O. B.” Exmore, Virginia. The defense was that no place of payment having been specified in the contract payment and delivery were concurrent conditions and that it was the duty of the plaintiffs or their agents to have been personally present at Exmore, Va., on the dates of delivery and offered then and there the purchase price of the potatoes.

      Walter C. Newcomb for appellant.

      Morey C. Bartholomew for respondents.
   Judgment in each case affirmed, with costs; no opinion.

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


text:
    Fred Butterfield & Co., Inc., Appellant, v. Abraham & Straus, Inc., Respondent.

      Trade marks — word “Normandy” cannot be exclusively appropriated as common-law trade mark.

      Butterfield & Co. v. Abraham & Straus, 212 App. Div. 384, affirmed.
    (Argued October 31, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered April 7, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to restrain the defendant from using the word “ Normandy ” as applied to voile fabrics and from selling fabrics as “ Normandy voile ” unless they were manufactured by the plaintiff. The trial court found for the plaintiff solely upon the ground that it had established a common-law trade mark in the word “ Normandy ” as applied to voiles. The Appellate Division held that by reason of its lack of inherent application to particular styles of goods exclusive in manufacture or description and because of its geographical nature, the word “ Normandy ” cannot be exclusively appropriated as a common-law trade mark.

      A. P. Bachman and Charles Q. Hensley for appellant.

      Leon Lauterstein, Edmond E. Wise and Avrom M. Jacobs for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Henry D. Appleton et al., Respondents, v. The National Park Bank of New York, Appellant.

      Banks and banking — set-off — bank has no lien upon general deposit of customer for unmatured indebtedness — may not apply deposit of insolvent customer in payment of notes not due.

      Appleton v. Nat. Park Bank of N. Y., 211 App. Div. 708, affirmed.
    (Argued October 21, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 13, 1925, affirming a judgment in favor of plaintiffs entered upon an order of Special Term granting a motion to strike out the answer and for summary judgment. The action was brought in aid of attachment under sections 922 and 943 of the Civil Practice Act by the assignee of judgment creditors of Middlesex Chemical Company, Inc., and the sheriff of the county of New York, jointly, to recover certain deposits standing to the credit of the Middlesex Chemical Company, Inc., with the defendant bank. The defense was a claimed right of set-off by reason of an unpaid and unmatured promissory note made to the defendant by the chemical company for money loaned.

      Emmett F. Smith for appellant.

      Russel S. Coutant, William C. Cannon and Theodore Kiendl for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    John Murray, as Administrator of the Estate of John Murray, Deceased, Respondent, v. Jacob Rosenheim, Appellant.

      Negligence —; motor vehicles — boy struck by motor vehicle while crossing street — erroneous charge as to applicability of provision of General Highway Law requiring operator of motor vehicle to give signal upon approaching pedestrian in street.

      Murray v. Rosenheim, 212 App. Div. 858, reversed.
    (Argued October 22, 1925;
    decided November 24, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 13, 1925, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned throught the negligence of defendant. Intestate while crossing Second avenue in the borough of Manhattan at about five p. m. on a dark, rainy and foggy day toward the end of November, was struck by a motor truck owned by defendant and operated by his employee and died from the injuries sustained. Defendant contended that the court erred in charging the jury that subdivision 2 of section 13 of the General Highway Traffic Law is applicable to this case; that at the time of the accident .the chauffeur was not engaged in his master’s business or acting within the course of his employment and that the plaintiff’s intestate was chargeable with contributory negligence.

      George F. Hickey and William Butler for appellant.

      Keron F. Dwyer for respondent.
   Judgments reversed and new trial granted, costs to abide event, on dissenting opinion of Clarke, P. J., below.

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


text:
    Percy Jackson, as Trustee in Bankruptcy of United Engineering and Contracting Company, Respondent, v. The State of New York, Appellant.

      State — contract — claim for work done under contract for construction of Barge canal — interest.

      Jackson v. State, 210 App. Div. 115, affirmed.
    (Argued October 22, 1925;
    decided November 24, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 1,1924, modifying and affirming as modified a judgment entered upon a decision of the Court of Claims. The claim was for the value of work done by plaintiff contracting company under a contract with the State for the construction of a section of the Barge canal from the city of Lockport to Sulphur Springs lock. The Appellate Division reversed the conclusion of law of the Court of Claims to the effect that the respondent was not entitled to recover for the increased cost of excavating material along a stretch of 4,450 feet of the site of the canal under the contract, the character of which material by the contract plans was represented to be such as could be readily, easily and cheaply excavated when, in fact, the State’s own investigations, not disclosed to the respondent, had shown that the material was hard, compact and difficult to excavate, and that the respondent was not entitled to interest on certain items of work performed under the contract, at contract prices, recovery of the principal of which was not disputed by the State.

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

      Franklin Kevins, Abram J. Bose, Asa B. Kellogg and T. Tileston Wells for respondent.
   Judgment affirmed, with costs, on opinion of Hubbs, P. J., below.

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


text:
    Joseph Meehan, as Executor of Eliza Meehan, Deceased, Appellant, v. The Emigrant Industrial Savings Bank et al., Respondents.

      Banks and banking — savings banks — title — action to determine ownership of savings bank account.

      Meehan v. Emigrant Industrial Savings Bank, 213 App. Div. 807, affirmed.
    (Argued October 22, 1925;
    decided November 24, 1925.)
    • Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 27, 1925, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term directing a dismissal of the complaint and directing that defendant savings bank pay a sum on deposit to defendant Quirk. The action was brought to determine the ownership of the account which stood in the name of “ Eliza Meehan for niece Lizzie Quirk.” Plaintiff, the son and executor of Eliza Meehan, deceased, claimed the fund as part of the assets of her estate.

      T. Louis A. Britt for appellant.

      John Caldwell Myers for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Catherine V. Trowbridge, Appellant, v. Katie Oehmsen, Respondent.

      Rescission—false representations — real property — action to rescind deed and bond and mortgage and recover purchase money on ground of false representations.

      Trowbridge v. Oehmsen, 207 App. Div. 740, affirmed.
    (Argued October 22, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered May 18, 1924, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to set aside a deed of real property made by defendant to plaintiff, to cancel and set aside a bond and mortgage made by plaintiff to defendant upon such conveyance and to recover the purchase money paid by plaintiff for the property on the ground that defendant had misrepresented the premises to the plaintiff in that she had stated that the house was a new structure, well built, when in fact the greater part of it was an old barn rebuilt.

      Benjamin I. Taylor for appellant.

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

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


text:
    William W. McCarthy et al., Respondents, v. Santa Clara Lumber Company, Appellant.

      Nuisance — owner of sawmill restrained from operating so as to throw soot and cinders on adjacent premises.

      McCarthy v. Santa Clara Lumber Co., 212 App. Div. 844, affirmed.
    (Argued October 22, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from a judgment of'the Appellate Division of the Supreme Court in the third judicial department, entered January 14, 1925, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without a jury. The action was to enjoin the defendant from so operating its saw and rossing mill in the village of Tupper Lake as to throw soot and cinders upon adjacent property belonging to the plaintiffs.

      Arthur E. Rose for appellant.

      George J. Moore for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, Andrews and Lehman, JJ, Not voting: M cLaughlin, J, Absent; Crane, J,


text:
    Max W. Kraus, Respondent, v. G. & E. Realty Co., Inc., Appellant.

      Negligence — landlord and tenant — tenant injured by falling through opening in storm, door the glass in which had been broken and removed.

      Kraus v. G. & E. Realty Co., Inc., 213 App. Div. 819, affirmed.
    (Argued October 22, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered April 10, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed a judgment in favor of defendant entered upon an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and directing a dismissal of the complaint and reinstated said verdict. The action was to recover for personal injuries alleged to have been sustained by the plaintiff, at about six o’clock in the evening of January 19, 1921, when he fell through the empty framework of a storm door of an apartment house of which he was one of the tenants and defendant the landlord. The glass in the door had been broken during a storm and plaintiff in pressing against the door to open it fell through the opening and received the injuries complained of.

      John Vernou Bouvier, Jr., and Alfred W. Andrews for appellant.

      Frederick J. Moses, Achilles H. Kohn and Aaron B. Coleman for respondent.
   Judgment affirmed, with costs; no opinion.

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


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

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

      People v. Walz, 212 App.. Div. 840, affirmed.
    (Argued October 23, 1925;
    decided November 24, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 3, 1925, which affirmed a judgment of the Madison County Court rendered upon a verdict convicting the defendant of the crime of manslaughter in the second degree.

      R. D. Woolsey and E. A. Kiley for appellant.

      William L. Burke, District Attorney, for respondent.
   Judgment affirmed; no opinion.

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


text:
    The Employers’ Liability Assurance Corporation, Limited, Appellant, v. J. P. Devine Co., Respondent.

      Subrogation — workmen’s compensation — action by insurance carrier to recover for injury to workman.

      Employers’ Liability Assur. Corp. v. Levine Co., 214 App. Div. 809, affirmed.
    (Argued October 23, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered July 8, 1925, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, overruling plaintiff’s exceptions, ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment in favor of defendant upon the nonsuit granted at the Trial Term. The action was by an insurance carrier under the Workmen’s Compensation Law to recover damages from defendant for causing personal injuries to an employee of a corporation while defendant was engaged in installing a furnace at the plant of said corporation.

      Ralph W. Dox and Ulysses S. Thomas for appellant.

      Harold J. Adams and Percy R. Smith for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The Corporation of Frederick Scholes, Appellant, v. Theodore Ficke Warehouses, Inc., Respondent.

      Landlord and tenant — lease — action for rent — whether rent to he computed according to ground area or floor space.

      Corp. of Scholes v. Ficke Warehouses, 213 App. Div. 259, affirmed.
    (Submitted October 23, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered May 27, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court. The action, landlord against tenant, was to Teco ver rent under a lease providing “ for a term of twenty-one (21) years beginning August 1, 1921, with rent only from said date on the buildings shown on said surveys referred to herein, and marked buildings No. 1 and No. 5, and with rent on the remaining portion of said premises, shown' on said surveys, known as buildings 2, 3, and 4, from and after the date of the completion of the improvements and repairs agreed to be made by the lessor in accordance with a certain memorandum attached hereto and made a part hereof, and identified by the signatures of the lessor and lessee, at an annual rental equal to'50 cents per square foot to be computed on the area of said premises, excluding in such computation, however, all exposed or uncovered driveways and all yard spaces. * * * And in addition to the rent herein provided, the lessee shall pay the further sum as rent an amount equal to 2 /3rds of the annual land or ground and building taxes levied against said premises.” The question was whether the rent was to be computed according to ground area or floor space.

      Louis Charles Wills for appellant.

      Henry D. Merchant for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Arthur Falk, Appellant, v. Jacob L. Hoffman et al., Respondents.

      Rescission — action to rescind agreement to sell stock, to refrain from certain business and for accounting.

      Falk v. Hoffman, 213 App. Div. 864, affirmed.
    (Argued October 26, 1925;
    decided November 24, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 28, 1925, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The action was to rescind an agreement whereby plaintiff gave to defendants an option to purchase certain shares of stock and agreed not to engage in the tobacco or cigarette business for a period of five years, to rescind the sale and transfer of such shares and for an accounting. (See Falk v. Hoffman, 233 N. Y. 199.)

      Louis Marshall for appellant.

      Gerald B. Rosenheim for Jacob L. Hoffman, respondent.

      I. M. Dittenhoefer for Mortimer Fishel, as executor of Albert Falk, deceased, respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    General Baking Company, Appellant, v. Abbott Baking Corporation, Respondent.

      Trade marks — unfair competition — action to restrain infringement of trade mark and unfair competition.

      General Baking Co. v. Abbott Baking Corp., 213 App. Div. 819, affirmed.
    (Argued October 26, 1925;
    decided November 24, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 15, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on "trial at Special Term. The action was to restrain the defendant from infringing plaintiff’s trade mark and in engaging in unfair competition. Both were engaged in the manufacture and sale of bread in the city of New York and plaintiff contended that the wrappers used by defendant were so similar to those in use by the plaintiff as to constitute an infringement of its trade mark and unfair competition.

      E. W. Leavenworth and E. P. Warfield for appellant.

      Samuel Seabury, George Trosk and Alexander Slater for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Walter D. Webster, Appellant, v. Joseph F. Roe, Respondent.

      Bills, notes and checks — usury — action to recover on promissory note — usurious agreement.

      Webster v. Roe, 212 App. Div. 756, affirmed.
    (Argued October 27, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered May 23, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an order of Special Term denying a motion by defendant for judgment on the pleadings and directed a dismissal of the complaint. The complaint set up the making of a promissory note for $8,800 by Erma S. McKeage and B. F. McKeage on November 21, 1923; the indorsement of the note for value by the defendant Roe; the delivery of the note for value to the plaintiff; the non-payment of the note at maturity. It demanded judgment for the principal sum of the note with interest. The answer set up that the note sued upon was given in renewal of two notes made by B. F. McKeage and indorsed by the defendant; that the first note, dated October 1, 1923, was for $5,000; that the second note, dated November 16, 1923, was for $3,800; that the consideration for the first note was a loan of $4,500 made by plaintiff to B. F. McKeage; that the consideration for the second note was a loan of $3,500 to B. F. McKeage; that the notes evidenced a usurious agreement and that the note in suit was void. By the reply the plaintiff admitted that the transaction constituted loans of money accompanied by promises of repayment, though they were alleged, in the complaint, to be joint ventures, and the bonus profits.

      Frederick Collin and Thomas B. Merchant for appellant.

      Douglas V. Ashley for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, McLaughlin, Crane and Andrews, JJ.; His cock, Ch. J., Cardozo and Lehman, JJ., concur on ground that plaintiff under complaint and reply cannot recover on note.


text:
    Pauline Shindler, as Administratrix of the Estate of Benjamin Shindler, Deceased, Respondent, v. Sullivan County Light and Power Corporation, Appellant.

      Negligence — electricity — death from contact with wire heavily charged with electricity ■—• contributory negligence.

      Shindler v. Sullivan Co. L. & P. Corp., 213 App. Div. 71, affirmed.
    (Argued October 27, 1925;
    decided November 24, 1925.)
    Appeal from a judgment, entered May 21, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, which reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and directing a dismissal of the complaint and reinstated said verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. A bell wire ran between two houses, being suspended by a crotch in the branch of a tree midway between them; defendant’s primary wire carrying 2,200 volts passed nearly at right angles to this wire. During a storm the wires came in contact, causing the bell wire to become heavily charged and to spark and flame and set fire to the tree where' it was suspended. Plaintiff’s intestate threw an axe against the bell wire. It broke and the free end struck and electrocuted him. The defense was contributory negligence.

      Philip A. Rorty for appellant.

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

Concur: Cardozo, Pound, Crane and Andrews, JJ.; Hiscock, Ch. J., McLaughlin and Lehman, JJ., vote to modify judgment by ordering new trial.


text:
    J. Orin Yeager, Appellant, v. Mechanics and Metals National Bank, Respondent.

      Contract — principal and agent — banks and banking — action to recover for alleged breach of contract — defense that defendant acted as agent.

      Yeager v. Mechanics & Metals Nat. Bank, 212 App. Div. 860, affirmed.
    (Argued October 28, 1925;
    decided November 24, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 6, 1925, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and granting a new trial. The action was to recover for an alleged breach of contract on the part of defendant to secure and deposit to plaintiff’s order at a bank in Berlin certain bonds. The defense was that defendant was acting solely as plaintiff’s agent and was, therefore, only liable for negligence.

      Stephen J. McTague and Harold J. Treanor for appellant.

      Frank M. Patterson and Mervyn Mackenzie for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

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


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

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

    (Argued October 12, 1925;
    decided December 1, 1925.)
    Appeal from a judgment of the Nassau County Court rendered December 1, 1924, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Joseph Lonardo and Frederick J. Groehl for appellant.

      Charles R. Weeks, District Attorney (Charles I. Wood of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Cardozo, Pound, McLaughlin and Andrews, JJ.; His cock Ch. J., Crane and Lehman, JJ., dissent on the ground that the evidence was not sufficient to permit the jury to find that defendant was guilty beyond a reasonable doubt.


text:
    Atlantic Lighterage Corporation, Respondent, v. James C. Davis, Director General of Railroads, Appellant.

      Negligence — ships and shipping — damage to chartered barge through collision — dangerous mooring place.

      Atlantic Lighterage Corp. v. Davis, 212 App. Div. 814, affirmed.
    (Argued October 29, 1925;
    decided December 1, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 22, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for damage to plaintiff’s barge demised to the defendant under an oral charter and returned in a badly damaged condition as result of a collision. Plaintiff alleged that defendant, his agents or servants, moored the barge at the end of a pier at a place in the East river known to be dangerous on account of the narrowness of the river and strong flood tides which drove against the pier in question and that by reason thereof two passing barges were driven against plaintiff’s barge causing the damage complained of.

      William J. Dean and Van Vechten Veeder for appellant.

      James M. Gorman and William Van Wyck for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The City of New York, Respondent, v. National Surety Company, Appellant.

      Surety bonds — undertaking — interest — liability of surety on undertaking on appeal to pay interest on judgment from date of entry.

      City of New York v. Nat. Surety Co., 214 App. Div. 705, affirmed.
    (Argued October 29, 1925;
    decided December 1, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 13, 1925, which affirmed a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for summary judgment. The action was to recover on a surety bond given as undertaking on appeal and providing for payment of “ the sum recovered or directed to be paid by the judgment,” and “ all costs and damages * * * not exceeding Five Hundred Dollars.” The question was whether defendant was obligated to pay interest on the amount of the judgment from the date of its entry, the defendant contending that it was not liable to pay interest thereon between the dates of entry of the judgment and ten days subsequent to the service upon the surety company of formal notice of affirmance.

      Harrison Tweed, George Welwood Murray and Otey McClellan for appellant.

      George P. Nicholson, Corporation Counsel {John F. O’Brien, Henry J. Shields and Isaac F. Cohen of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Simon Wertheimer et al., Respondents, v. Rita B. Boehm, Appellant.

      Vendor and purchaser — contract — sale — specific performance — Frauds (Statute of) — action to compel specific performance of contract for sale of real property — defense of Statute of Frauds.

      Wertheimer v. Boehm, 213 App. Div. 849, affirmed.
    (Argued October 30, 1925;
    decided December 1, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered April 2, 1925, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term. The action was for specific performance of an alleged contract for the sale of real estate which read as follows:
    “ Buffalo, 3 /7 /22.
    “ Received of Simon Wertheimer and Barney Berman $50.00 Fifty Dollars on a /c of purchasing price of $14,000. Fourteen Thousand Dollars for property 168 Allen St. $2950.00 in cash on delivery of clear title and survey with the understanding of first mortgage of $5000 at 5% and balance of $6,000.00 on a second mortgage which I agree to take for six years for six per cent interest. The lot is 36x125 feet. It is understood that any building mortgage to increase the first mortgage is allowed.
    “ RITA BUNTON BOEHM.” The defense was the Statute of Frauds, defendant claiming that the memorandum is incomplete and indefinite and does not constitute a valid legal or binding contract capable of enforcement.

      M. F. Dirnberger, Jr., for appellant.

      Adrian Block and Bernard D. Welt for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Morris Friedman et al., Appellants, v. Philip Richman et al., Respondents.

      Equity — rescission — contract — sale —false representations — action to rescind contract of sale, and for cancellation of lease and promissory note on ground of false representations.

      Friedman v. Richman, 213 App. Div. 467, affirmed.
    (Argued October 30, 1925;
    decided December 1, 1925.)
    Appeal from a judgment, entered July 10, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term and directing judgment in favor of defendants. The action was for rescission of a contract of sale and the cancellation and discharge of a lease of real property and of a promissory note upon the ground that they were induced by false representations.

      Coplin Yaras for appellants.

      R. Monell Herzberg and John C. Tracy for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Edwin W. Scott, Appellant, v. United Traction Company, Respondent.

      Negligence — railroads -— action by driver of automobile to recover for personal injuries received as result of being struck by trolley car while crossing track — contributory negligence a question for jury.

      Scott v. United Traction Co., 211 App. Div. 826, reversed.
    (Argued October 30, 1925;
    decided December 1, 1925.)
    Appeal from a judgment, entered June 4, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff was driving his automobile across defendant’s tracks in Washington avenue in the city of Albany when a trolley car approaching from the west collided with him causing the injuries complained of. It appeared that he had parked his car heading south about twenty feet west of the intersection of a short street which did not continue beyond the avenue. He entered his automobile, started the engine, looked west and saw a trolley car standing at the next corner and started slowly to cross the street for the purpose of proceeding west. He looked toward the east and when within one or two feet of the track again toward the west, when he saw the car fifty or sixty feet away advancing at a high rate of speed. '

      Walter A. Fullerton for appellant.

      P. C. Dugan and John E. MacLean for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Divilion. Held, that the question of plaintiff’s contributory negligence was one of fact for the jury.

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


text:
    John Mike et al., Respondents, v. Jacob Levy et al., Appellants.

      Appeal — unanimous reversal of order setting aside verdict and granting new trial and reinstatement of verdict — appeal without permission to Court of Appeals dismissed.

      Mike v. Levy, 210 App. Div. 813, appeal dismissed.
    (Submitted November 23, 1925;
    decided December 1, 1925.)
    Motion to dismiss an appeal from a judgment entered July 8, 1924, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which unanimously reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiffs and granting a new trial and reinstated said verdict.
    The motion was made upon the ground that permission to appeal had not been obtained.

      Harry Z. Harris for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Nellie E. Smith, Appellant, v. Arthur P. Smith, Respondent.

      Appeal —failure to file undertaking or prosecute appeal.

      Smith v. Smith, 214 App. Div. 751, appeal dismissed.
    (Argued November 23, 1925;
    decided December 1, 1925.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 26, 1925, which affirmed an order of Special Term granting a motion to modify a final judgment of divorce.
    The motion was made upon the ground of failure to file the required undertaking and otherwise prosecute the appeal.

      Isadore Bookstein for motion.
    No one 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. One Twin-six Packard Car and Paul O'Malley et al., Respondents.

      Appeal —failure to make and serve record.

      People v. One Tudn-six Packard Car, 208 App. Div. 754, appeal dismissed.
    (Argued November 23, 1925;
    decided December 1, 1925.)
    Motion to dismiss an appeal from an order ofjdie Appellate- Division of the Supreme Court in the third judicial department, entered March 17, 1924, which reversed two orders of the Chenango County Court denying motions for orders directing the return of a certain motor car, liquors and casks seized as claimed under subdivision 5 of section 802-b of the Code of Criminal Procedure.

      The motion was made upon the ground of failure to make and serve the record on appeal.

      William H. Sullivan for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Nicholas Andre, Suing on Behalf of Himself and Other Stockholders of Northern Insurance Company of Moscow, Appellant, v. James A. Beha, as Superintendent of Insurance of the State of New York, Respondent, and Mortimer W. Byers et al., as Trustees, et al., Appellants.
    (Submitted November 23, 1925;
    decided December 1, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 605.)


text:
    Ophelia Hare, as Administratrix of the Estate of Baynard Hare, Deceased, Respondent, v. Clyde Steamship Company, Appellant.

      Appeal — unanimous affirmance — appeal without permission — motion to dismiss denied where constitutional question is involved.

    Reported below, 215 App. Div. 670.
    (Argued November 23, 1925;
    decided December 1, 1925.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 19, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict.
    The motion was made upon the ground that the appeal was frivolous and that permission to appeal had not been obtained. The motion was opposed upon the ground that a constitutional question was involved.

      Emanuel Friedman for motion.

      Cleland R. Neal opposed.
   Motion denied, with ten dollars costs.


text:
    In the Matter of the Application of Warehousemen's Association of the Port of New York, Inc., Appellant, against Michael Cosgrove, as Commissioner of Docks of the City of New York, Respondent.

      New York city — wharves and piers — warehouses — mandamus — maintenance of storehouse on pier forbidden — duty of commissioner of docks to enforce terms of lease of docks — court. may withhold mandamus in its discretion.

    1. Section 846 of the charter of the city of New York prohibits the maintenance on any pier of a storehouse. The use of piers for warehousing is, therefore, an illegal use and it is the duty of the commissioner of docks to enforce the terms of a lease of docks under which the lessee agrees to abide by the laws of the State.
    2. The court upon application for an order of mandamus, however, has some discretion and may withhold the remedy where the enforcement of a strict legal right would work unnecessary hardship.

      Matter of Warehousemen’s Assn. v. Cosgrove, 215 App. Div. 660, reversed.
    (Argued November 24, 1925;
    decided December 8, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 9, 1925, which affirmed an order of Special Term denying a motion for a peremptory order of mandamus.

      Charles J. Nehrbas and Charles D. Olendorf for appellant.

      George P. Nicholson, Corporation Counsel {John F. O’Brien and Josiah A. Stover of counsel), for respondent.
   Per Curiam.

It is admitted that. Pan-American Wharfage Co., Inc., and Pan-American Terminal and Dock Company are maintaining warehouses on the double deck piers on Staten Island which they lease from the city. The decision below is that as matter of law they have the right to maintain such warehouses. The lessee agrees to abide by the laws of the State of New York respecting the use of the piers. The Greater New York charter, section 846, prohibits the maintenance on any pier of a storehouse. The use of the piers for warehousing is, therefore, an illegal use. It is the duty of the commissioner of docks to enforce the terms of the permit. Physically, the use does not encumber the pier or interfere with its free use. The duty of the commissioner of docks is to notify the lessees to cease the illegal use. The respondent’s brief contends that it is not his clear legal duty forthwith to stop the illegal use. But the decision below is to the effect that the use is legal. Doubtless the court has some discretion in the matter. The remedy of mandamus may be withheld where the enforcement of a strict legal right would work unnecessary hardship.

Order should be reversed and the proceeding remitted for consideration on the merits, with costs to appellant.

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

Order reversed, etc.


text:
    In the Matter of the Application of the People of the State of New York, by James A. Beha, as Superintendent of Insurance of the State of New York, Respondent. Second Russian Insurance Company, Appellant.

      Insurance — corporations — order directing liquidation of insurance corporation — appeal therefrom to Appellate Division improperly dismissed.

      Matter of People (Second Buss. Ins. Co.), 214 App. Div. 778, reversed.
    (Argued November 23, 1925;
    decided December 8, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 9, 1925, which dismissed an appeal from an order of Special Term directing the liquidation of the Second Russian Insurance Company under and pursuant to the provisions of section 63 of the Insurance Law. Also motion to dismiss such appeal.

      Wendell P. Barker and William, H. Harding for appellant.

      Albert Ottinger, Attorney-General (Clarence C. Fowler and Joseph C. H. Flynn of counsel), for respondent.

      David Rumsey and Louis J. Wolff for Fred S. James & Co., et al., intervenors.

      B. F. Sturgis, Milton B. Ignatius and Hartwell Cabell for John F. Murphy, intervener.
   Per Curiam.

Motion to dismiss appeal denied, with costs. The order dismissing the appeal should be reversed, with costs, and the case remitted to the Appellate Division to pass on the merits.

The stay pending appeal to this court falls. The case having been remitted to the Appellate Division, the application for payments to the North Star Insurance Company and the Reinsurance Company, Salamandra, and others must be made to the Supreme Court.

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

Order reversed, etc.


text:
    The People of the State of New York ex rel. George Kammerer, Appellant, v. Warden of the New York County Penitentiary, Respondent

      Constitutional law — Parole Commission Law — habeas corpus — con- ' stitutionality of Parole Commission Law — writ of habeas corpus dismissed.

      People ex rel. Kammerer v. Warden, etc., 215 App. Div. 673, affirmed.
    (Argued November 23, 1925;
    decided December 8, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 23, 1925, which affirmed an order of Special Term dismissing a writ of habeas corpus. Relator, a prisoner in the New York County Penitentiary, sued out the writ claiming that the Parole Commission Law (L. 1915, ch. 579, amd. L. 1916, ch. 287) under which he claims he is held is invalid, because the bill providing for the amendment, passed in 1916, was not properly passed so as to affect the city of New York or that class of cities, and that the amendment t'o the Constitution providing for the classification of cities was adopted in defiance of the express provisions of section 1 of article 14 of the Constitution of the State of New York, prescribing the mode and manner to be followed in amending the Constitution.

      George Kammerer, appellant in person.

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

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


text:
    In the Matter of the Application of Mary G. Mulqueen for Construction of the Will of Michael J. Mulqueen, Deceased. Mary G. Mulqueen, as Executrix, Appellant; Carr Mulqueen, by Joseph W. Keller, His Special Guardian, Respondent.

      Will — decedent’s estate — when child born subsequent to making of will entitled to share in estate as though testator died intestate — construction of will.

      Matter of Mulqueen, 213 App. Div. 637, affirmed.
    (Argued November 23, 1925;
    decided December 8, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1925, which reversed a decree of the New York County Surrogate’s Court construing the will of Michael J. Mulqueen, deceased. The question was whether a child born subsequent to the making of the will was entitled to share in the estate of the decedent as though he had died intestate. The surrogate held that directions in the will for payment, under certain contingencies, of certain funds “ to my children equally ” and the use of the words “ him or her,” in referring to a surviving child in the event of the death of his only son living at the time of making the will evidenced that he had the possibility of additional children being born in mind. The Appellate Division held that the words “ my children ” are limited to the three named children and that the words “ him or her ” was a set or stereotyped expression used by the testator as such.

      Henry W. Taft and Thomas B. Gilchrist for appellant.

      Joseph W. Keller for respondent.
   Order affirmed, with costs, payable out of estate, on opinion of Finch, J., below.

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


text:
    Town of Nichols, Respondent, v. Sumner Park et al., Appellants, Impleaded with Others. The Public Service Commission of the State of New York et al., Respondents.

      Eminent domain — condemnation proceedings — damages — measure of damages in proceeding to acquire land for highway purposes.

      Town of Nichols v. Sumner Park, 209 App. Div. 319, affirmed.
    (Argued November 23, 1925;
    decided December 8, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 4, 1924, which reversed an order of Special Term confirming the report of commissioners of appraisal in condemnation proceedings to acquire lands for highway purposes. The question at issue was the measure of damages.

      Archibald Howard and F. W. Clifford for appellants.

      James S. Truman for plaintiff, respondent.

      Russell B. Burnside and Charles G. Blakeslee for Public Service Commission, defendant, respondent.

      Halsey Sayles for New York, Lackawanna and Western Railway Company, defendant, respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Charles L. Craig, as Comptroller of the City of New York, Respondent, against John F. Hylan et al., Constituting the Board of Estimate and Apportionment of the City of New York, et al., Appellants.

      New York city — mandamus to compel inclusion in budget of certain appropriations regarded as mandatory.

      Matter of Craig v. Hylan, 213 App. Div. 854, affirmed.
    (Submitted November 24, 1925;
    decided December 8, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 13, 1925, which modified and affirmed as modified an order of Special Term granting a motion for a peremptory order of mandamus to compel the board of estimate and apportionment and the board of aldermen of the city of New York to include in the final budget for the year 1925 certain specified appropriations which had been requested by various boards and officers on the ground that their inclusion in the budget was mandatory.

      George P. Nicholson, Corporation Counsel (John F. O’Brien, John Lehman and Arthur Sweeney of counsel), for appellants.

      Charles L. Craig for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Appellant, v. Bertha Shkilky, Respondent.

      Crimes — tenement houses—judgment of conviction of violation of Tenement House Act properly reversed.

      People v. Shkilky, 201 App. Div. 55, affirmed.
    (Argued November 24, 1925;
    decided December 8, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 28, 1922, which reversed a judgment of the Court of Special Sessions in the city of New York convicting the defendant of a violation of sections 120, 121 and 122 of the Tenement House Law in having converted a one-family dwelling house into a tenement house without compliance with the requirements of said act.

      George P. Nicholson, Corporation Counsel (Michael J. Kelly, John F. O’Brien and Joseph I. Berry of counsel), for appellant.

      Jacob Bernstein for respondent.
   Order affirmed; no opinion.

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


text:
    In the Matter of the Accounting of Charles V. Walter, as Trustee under the Will of Theodore Petremont, Deceased. Charles V. Walter, Individually and as Trustee, Appellant; Katherine Petremont, Respondent.

      Trusts and trustees — accounting — costs and disbursements payable out of principal not income.

      Matter of Petremont, 213 App. Div. 318, affirmed.
    (Argued November 24, 1925;
    decided December 8, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 27, 1925, which modified and affirmed as modified a decree of the New York County Surrogate’s Court judicially settling the intermediate account of a trustee. The Appellate Division struck out a provision therein for •the retention by the trustee out of the income of the trust fund of a sum for costs and disbursements of the accounting and directed that said amount be paid out of principal.

      Robert J. Robeson and MaxweltHall Elliott for appellant.

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

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


text:
    Mina E. Fritz, Respondent, v. Commonwealth Finance Corporation et al., Appellants.

      Bills, notes and checks — set-off —• action to recover upon promissory notes ■— defense by way of set-off properly struck out.

      Fritz v. Commonwealth Finance Corp., 213 App. Div. 814, affirmed.
    (Argued November 24, 1925;
    decided December 8, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 20, 1925, which affirmed an order of Special Term granting a motion by plaintiff to strike out a defense and for judgment on the pleadings in an action to recover upon two promissory notes. The defendants sought to offset against plaintiff’s claim the amount of an alleged claim against him assigned by another corporation for repairs to property leased to plaintiff which, it was claimed, plaintiff should have made. It was held that the assignor did not make the repairs and consequently possessed nothing to assign.

      Hugart F. Norman, Joseph L. Greenberg, Mark W. Norman and George Edwin Joseph for appellants.

      Leo K. Martus for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    Guiseppe Nalli, as Administrator of the Estate of Silvester Nalli, Deceased, Appellant, v. John Peters, Respondent, Impleaded with Another.
    (Submitted November 30, 1925;
    decided December 8, 1925.)
   Motion for re-argument or to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 177.)


text:
    Peppard Realty Co., Inc., Respondent, v. Emil F. Emdon, Appellant.

      Trust — real property — principal and agent — action to impress trust upon real property — agent employed by owner of equity of redemption to arrange loan to enable such owner to bid in property at foreclosure sale — property bid in by third party who transferred title to agent — trust impressed upon property for benefit of principal.

      Peppard Realty Co., Inc., v. Emdon, 213 App. Div. 824, affirmed.
    (Argued November 24, 1925;
    decided December 15, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 6, 1925, affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to impress a trust for the benefit of plaintiff upon real property in the city of Brooklyn. It was alleged that plaintiff, who owned the equity of redemption in the property, employed defendant to find some one who would supply the money necessary to enable plaintiff to bid in said property at the foreclosure sale; that the property was bid in by a third party, who transferred the bid to the defendant, who took title but refused to account to plaintiff for the property.
    The following questions were certified:

      “ 1. Are the facts found by the trial court sufficient to support the conclusions of law and the judgment?

      “2. Is there sufficient evidence to support the material findings of fact herein?
    “ 3. Is there sufficient evidence to support each and every of the findings of fact numbered 19, 20, 22, 23, 24, 25, 26, 27, 33, 34, 36, 41?

      “ 4. Did the refusal of the trial court to find facts requested by the defendant constitute reversible error?

      “ 5. Did the refusal of the trial court to find as requested by the defendant in any or all of the proposed findings of fact numbered II, III, VI, IX, X, XI, XII, XIII, XIV, XV, XVI, XVII, XVIII, XIX, XX, XXI, XXIII, XXIV, XXV, XXVI, XXVII, XXVIII, constitute reversible error?

      “ 6. Should the complaint have been dismissed at the opening of the case on defendant’s motion?
    “ 7. Should the action have been dismissed at the close of the case on defendant’s motion?
    “ 8. Is defendant, appellant, entitled to a reversal of the judgment, and either a dismissal of the complaint or a new trial? ”

      Ralph G. Barclay, Jay S. Jones and Edward J. Fanning for appellant.

      Charles S. Rosenschein and Robert Moers for respondent.
   Judgment affirmed, with costs; questions certified answered as follows; Nos. 1, 2 and 3 in affirmative; other questions not answered; no opinion.

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


text:
    The People of the State of New York ex rel. J. Frederic Kernochan et al., as Administrators of the Estate of Marie Marshall, Deceased, Respondents, v. John F. Gilchrist et al., Constituting the State Tax Commission, Appellants.

      Tax — income tax — decedent’s estate ■—• return made by decedent in lifetime on cash received basis — requirement of additional return upon income accrued before but not received until after death improper.

      Matter of Kernochan v. Gilchrist, 214 App. Div. 114, affirmed.
    (Argued November 25, 1925;
    decided December 15, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered October 14, 1925, which annulled, on certiorari, a determination of the State Tax Commission imposing an additional income tax upon the estate of Marie Marshall, deceased. The question was whether income accrued to a person prior to her death, but received thereafter by her representatives, may be required to be returned as income of the decedent, in cases where she made her last return on a cash received basis.

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

      Henry F. Miller for respondents.
   Order affirmed, with costs, on opinion of Cochrane, P. J., below.

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


text:
    In the Matter of John W. McElveney, a Patrolman of the Police Department of the City of Albany, Respondent. James T. Keith, Commissioner of Public Safety of the City of Albany, Appellant.

      Police — Albany (city of) — dismissal of policeman on charges properly reversed.

      Matter of McElveney, 214 App. Div. 741, affirmed.
    (Argued November 25, 1925;
    decided December 15, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 8, 1925, which reversed a determination of the commissioner of public safety of the city of Albany dismissing the respondent herein from the position of patrolman in the police force of the city of Albany and directed his reinstatement. The respondent was charged with violating the rules and regulations of the police department and conducting himself in a manner unbecoming an officer in visiting, while on duty, a resort outside the city.

      Gilbert V. Schenck, Corporation Counsel (Anthony De Stef ano of counsel), for appellant.

      Joseph L. Delaney and George W. Harder for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. The Butterick Company, Respondent, v. John F. Gilchrist et al., Constituting the State Tax Commission of the State of New York, Appellants.

      Tax—franchise tax — when corporation not doing business within State within meaning of statute imposing franchise tax.

      People ex rel. Butterick Co. v. Gilchrist, 213 App. Div. 533, affirmed.
    (Argued November 25, 1925;
    decided December 15, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 10, 1925, which annulled, on certiorari, a determination of the State Tax Commission, made upon the relator’s application for revision and resettlement of its account for franchise taxes assessed under section 182 of the Tax Law for the years 1906 to 1916 inclusive. The relator was incorporated under the laws of this State and maintained an office in this State where its meetings were held, but it transacted no business except to receive the income from the dividends upon the stock and interest upon the bonds of its subsidiary corporations in which stocks and bonds its entire capital was invested. This income was deposited in a bank in the city of New York and distributed to its stockholders. It had no other funds in bank. No business of any nature whatever was done outside of the State. The relator owned no real or tangible personal property within the State and had no employees and no payrolls. Its officers received no salary. Its office was a nominal one and it paid no office rent. It never participated in the manufacture and sale of any of the articles as authorized by its certificate of incorporation, although some of its subsidiary corporations were engaged in such business, but during the years in question it appeared that the relator on several occasions indorsed notes for two of its subsidiaries. The Tax Commission held that such acts of loaning credit constituted the doing of business within the State.

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

      Herbert Noble and Howard Seay for respondent.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cabdozo, Pound, McLaughlin, Cbane, Andbews and Lehman, JJ.


text:
    In the Matter of the Claim of Feed Scheunemann, Respondent, against National Aniline and Chemical Company et al., Appellants. State Industrial Board, Respondent.

      Workmen’s compensation — master and servant—failure to file claim within■ year — running of statute suspended by advance payments.

      Scheunemann v. Nat. Aniline & Chem. Co., 214 App. Div. 832, affirmed.
    (Argued November 25, 1925;
    decided December 15, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered July 27, 1925, affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Objections were raised that the findings and conclusions of the State. Industrial Board were contrary to the evidence, and that under section 28 of the statute the award was improper because claimant failed to file a claim within one year after the accident. Claimant contended that advance payments on account of compensation suspended the running of the statute.

      Clarence B. Tippett for appellants.

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

Concur: Hiscock, Ch. J., Cabdozo, Pound, McLaughlin, Cbane, Andbews and Lehman, JJ.


text:
    In the Matter of the Estate of Ida C. Potts, Deceased. Stephen F. Avery, as Executor and Trustee, Appellant; Alfred B. Chace et al., Doing Business under the Name of Chace Brothers et al., Respondents.

      Attorney and client — decedent’s estate — Surrogate’s Court — decree fixing compensation of attorneys for services to estate ■— Court of Appeals precluded by unanimous affirmance from consideration of value of services.

      Matter of Potts, 213 App. Div. 59, affirmed.
    (Argued November 25, 1925;
    decided December 15, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 6, 1925, which unanimously affirmed a decree of the Columbia County Surrogate’s Court fixing, under section 231-a of the Surrogate’s Court Act, the compensation of attorneys for services rendered the estate of Ida C. Potts, deceased.

      Daniel V. McNamee for appellant.

      John L. Crandell for respondents.
   Order affirmed, with costs, on ground that the unanimous affirmance at the Appellate Division precludes the consideration of the value of the services.

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


text:
    The People of the State of New York, Respondent, v. Luigi Rapito, Appellant.

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

    (Argued November 30, 1925;
    decided December 15, 1925.)
    Appeal from a judgment of the Supreme Court, rendered September 18, 1924, at a Trial Term for the county of Cayuga, upon a verdict convicting the defendant of the crime of murder in tfie first degree.

      Frank S. Coburn and Richard T. Anderson for appellant. Bern Kenyon, District Attorney, for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Cabdozo, Pound, McLaughlin, Cbane and Andeews, JJ.; Hiscock, Ch. J., and Lehman, J., dissent on the ground that the evidence did not justify the jury in finding premeditation and deliberation beyond a reasonable doubt.


text:
    The People of the State of New York, Respondent, v. Matthew Wasser, Appellant.

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

    (Argued November 30, 1925;
    decided December 15, 1925.)
    Appeal from a judgment of the Supreme Court, rendered January 23, 1925, at a Trial Term for the county of Niagara, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Francis T. Findlay for appellant.

      Mortimer A. Federspiel, District Attorney (Raymond A. Knowles and Harry L. Gilrie of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Hiscock, Ch. J., Cabdozo, Pound, McLaughlin, Cbane, Andeews and Lehman, JJ.


text:
    The People of the State of New York, Respondent, v. Ernest T. Mimms, Appellant.

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

    (Argued November 30, 1925;
    decided December 15, 1925.)
    Appeal from a judgment of the Bronx County Court, rendered March 6, 1925, upon a verdict convicting the defendant of the crime of murder in the first degrée.

      William 8. Evans and William P. Thomas for appellant.

      John E. McGeehan, District Attorney (George B. De Luca and Herman Fliederblum of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Hiscock, Ch. J., Cabdozo, Pound, McLaughlin, Cbane, Andeews and Lehman, JJ.


text:
    The People of the State of New York, Respondent, v. Carlo Perino et al., Appellants.

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

      People v. Perino, 213 App. Div. 855, affirmed.
    (Argued December 1, 1925;
    decided December 15, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 3, 1925, which affirmed a judgment of the Court of General Sessions of the Peace in the county of New York, rendered upon a verdict convicting the defendants of the crime of robbery in the first degree.

      Frank Hendrick for appellants.

      Joab H. Banton, District Attorney {Charles Henry of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    H. E. Benjamin Co., Inc., Respondent, v. Edwin Nottingham, President of the Vocational High School Commission, et al., Appellants.

      Appeal — order appointing referee ■— appeal without permission to Court of Appeals dismissed.

      Benjamin Co., Inc., v. Nottingham, 214 App. Div. 760, appeal dismissed.
    (Submitted December 8, 1925;
    decided December 15, 1925.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 20, 1925, which affirmed an order of Special Term appointing a referee to hear and determine the issues in the above-entitled action.
    The motion was made on the grounds that no appeal lay as of right to the Court of Appeals and that permission to appeal had not been obtained.

      William Rubin for motion.

      Frank J. Cregg, Corporation Counsel {Frank W. Baker of counsel), opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Hannah Rankin, Respondent, v. Ittner Realty Corporation, Appellant.

      Appeal — motion to dismiss denied.

    Reported below, 215 App. Div. 673.
    (Submitted December 8, 1925;
    decided December 15, 1925.)
    Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 30, 1925, affirming a judgment in favor of plaintiff entered upon a verdict.
    The motion was made upon the ground that no question of law is presented for review by this court.

      Herman Silverman for motion.

      William B. Shelton opposed.
   Motion, denied, with ten dollars costs.


text:
    The People of the State of New York, Respondent, v. Emil Klatt, Appellant.

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

    (Argued December 1, 1925;
    decided December 18, 1925.)
    Appeal from a judgment of the Supreme Court, rendered June 10, 1925, at a Trial Term for the county of Westchester upon a verdict convicting the defendant of the crime of murder in the first degree.

      James F. Dalton for appellant.

      Arthur Rowland, District Attorney {John M. Holzworth of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    John Gannon, Respondent, v. Casper D. Hulett, Appellant.

      Negligence — motor vehicles — plaintiff struck by automobile upon alighting from trolley car—failure of driver of automobile to give warning or reduce speed — contributory negligence.

      Gannon v. Hulett, 214 App. Div. 746, affirmed.
    (Argued December 4, 1925;
    decided December 18, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered June 2, 1925, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff was struck by defendant’s automobile after alighting from a trolley car traveling south on the Albany-Troy highway at about dusk. The automobile, approaching from the south, struck the plaintiff after he had taken a few steps toward the sidewalk. It was alleged that there were no lights on the automobile; no warning of any kind was given and its speed was not reduced as it approached the standing trolley car stopped for the purpose of discharging passengers. The defense was contributory negligence.

      Thomas H. Guy for appellant.

      J. S. Carter for respondent.
   Judgment affirmed, with costs; no opinion.

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