text:
    In the Matter of the Accounting of Anna Ryan et al., as Executors of and Trustees under the Will of Eugene J. Flood, Deceased, Appellants. Susie E. Murray et al., Respondents.
    (Argued September 27, 1926;
    decided October 12, 1926.)

      Will — trust — direction in will that as much as necessary of income and principal be used for support of cestui que trust — discretion vested in trustees subject to scrutiny as to possible fraud or diversion.

      Matter of Flood, 216 App. Div. 711, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered February 19, 1926, which unanimously ■affirmed a decree of the New York County Surrogate’s Court construing that portion of the will of Eugene J. Flood, deceased, which directed the trustees to properly maintain and support his mother out of the income and so much of the principal as might be . necessary and divide the surplus income, if any, between his three sisters. The trustees contended that remaindermen had no standing to inquire into the necessity for expenditures made in accordance with such direction. The surrogate held: “ (1) The discretion vested in the trustees to support Bridget Flood is not absolute, but subject to scrutiny as to possible fraud or diversion. This right of scrutiny may be invoked by any party interested as a secondary or a contingent life tenant entitled to the surplus income, or, in case of a possible invasion of the principal, by a remainderman. (2) By the use of the words ‘ used,’ ‘ applied,’ ‘ maintained ’ and ‘ supported ’ in the will the trustees are charged with duty of seeing that the funds are properly applied to the support of Bridget Flood, and are not used in violation of the trust for the use of some other person.”
    Order affirmed, with costs;

      Matthew J. Wheelehan and Howard A. Sperry for appellants.

      Arthur T. O’Leary and Isidor Enselman for respondents.
   no opinion.

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


source: Caselaw Access Project

license: Public Domain

text:
    Coughlan & Company, Inc., Respondent, v. Louis Frankel, Appellant.
    (Argued September 27, 1926;
    decided October 12, 1926.)

      Principal and agent — commissions — contract — action to recover commissions on sale of real estate — defense that sale had not been consummated.

      Coughlan & Co., Inc., v. Frankel, 216 App. Div. 565, affirmed
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 11, 1926, which affirmed a determination of the Appellate Term affirming an order of the New York City Court granting a motion to strike out the answer and for summary judgment. The action was to recover broker’s commissions upon a sale of real estate. The answer admitted the employment of plaintiff, the agreed commissions, and that plaintiff had procured a customer for the property but pleaded as a defense that no formal contract of sale was ever signed or the sale consummated.
    Order affirmed, with costs;

      Emanuel Sustick and Stewart Engel for appellant.

      Samuel Sturts for respondent.
   no opinion.

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


text:
    Samuel A. Herzog, Respondent, v. Frederick Brown, Appellant.
    (Argued September 28, 1926;
    decided October 12, 1926.)

      Contract — Statute of Frauds — action to recover for breach of contract to purchase leasehold — issue of fact as to whether contract unenforcible under Statute of Frauds.

      Herzog v. Brown, 217 App. Div. 402, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 21, 1926, which reversed an order of Special Term granting a motion for dismissal of the complaint and directing trial of a stated issue of fact. The action was to recover for an alleged breach of contract - to purchase a leasehold interest in real property. In • support of his motion to dismiss the complaint defendant presented an affidavit showing that the contract alleged in the complaint referred to defendant’s interest in a twenty-one-year lease with renewal options, and that no note or memorandum of the contract was in writing and subscribed either by the defendant or by his lawfully authorized agent.
    • The following questions were certified:
    “1. Do the complaint and the affidavits in support of the motion to dismiss the complaint contain facts sufficient to show, prima facie, that the contract on which the action is founded is unenforcible under the provisions" of the Statute of Frauds?
    “ 2. Does the answering affidavit in opposition to . said motion state facts sufficient to raise an issue of fact as to whether the contract on which the action is founded is unenforcible under the provisions of the Statute of Frauds?
    “ 3. Do the complaint and the affidavits herein contain facts sufficient to show that the contract on which the action is founded is unenforcible under the provisions of the Statute of Frauds? ”
    Order affirmed, with costs; second question certified answered in the affirmative; remaining questions not answered;
    I. Maurice Wormser and Henry M. Marks for appellant.

      Harold H. Corbin and Max D. Steuer for respondent.
   no opinion.

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


text:
    The People of the State of New York ex rel. Glen Cliff Press, Inc., Respondent, v. Edward Springmann, Commissioner of Accounts of the City of Glen Cove, et al., Appellants.
    (Argued September 28, 1926;
    decided October 12, 1926.)

      Municipal corporations — Glen Cove (city of) — power of city council to contract for printing and delivery of copies of proceedings of council — mandamus to compel signing of warrant for payment.

      People ex rel. Glen Cliff Press, Inc., v. Springmann, 217 App. Div. 778, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 25, 1926, which reversed an order of Special Term denying a motion for a peremptory order of mandamus to compel the signing of a warrant for payment of a claim against the city of Glen Cove and granted said motion. The claim was for the contract price of printing and delivering certain copies of the proceedings of the council of the city of Glen Cove. The commissioner of accounts refused to countersign the warrant for payment of the bill on the ground that the city council was without authority to award the contract and, therefore, the commissioner of finance refused to pay the amount alleged to be due.
    Order affirmed, with costs;

      Thomas F. X. McCarthy for appellants.

      Charles T. McCarthy and Harry W. Moore for respondent.
   no opinion.

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


text:
    William Rosenstein, Appellant, v. Samuel Schneiderman, Respondent.
    (Submitted October 4, 1926;
    decided October 12, 1926.)

      Appeal —failure to file undertaking.

    Reported below, 216 App. Div. 849.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 21,1926, which affirmed an order of the Kings County Court granting defendant’s motion to dismiss the complaint.
    • The motion was made upon the ground of failure to file the required undertaking.

      Walter M. Effross for motion.

      Emanuel Rosenstein opposed.
   Motion denied on payment of ten dollars costs by appellant; otherwise, granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Morris Chernuchin, Doing Business under the Firm Name of The Star Soda Water Apparatus Company, Respondent, v. Benjamin Barkin, Inc., Appellant, Impleaded with Another.
    (Submitted October 4, 1926;
    decided October 12, 1926.)

      Appeal — order of Appellate Division reversing order granting new trial on ground of newly-discovered evidence discretionary — appeal to Court of Appeals dismissed.

      Chernuchin v. Barkin, Inc., 216 App. Div. 835, appeal dismissed.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1926, which reversed an order of Special Term granting a motion for a new trial upon the ground of newly-discovered evidence.
    The motion was made upon the ground that the order appealed from was discretionary and, therefore, the Court of Appeals had no jurisdiction to entertain the appeal.

      Charles Berlin for motion.

      Reuben Dorjman opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Application of David L. Frank et al., Appellants, against The Board of Education of Union Free School District No. 6 of the Town of Cortlandt, Westchester County, et al., Respondents.
    (Argued September 27, 1926;
    decided October 19, 1926.)

      Certiorari — tax — certiorari proceeding to review school tax dismissed on ground it was not instituted within time prescribed by section 1288 of Civil Practice Act.

      Matter of Frank v. Board of Education, 217 App. Div. 761, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 11, 1926, which dismissed an order of certiorari to review the proceedings of defendants in assessing and attempting to collect a tax for school purposes in Union Free School District No. 6 of the town of Cortlandt, Westchester county. The proceedings were dismissed on the ground that they were not instituted nor the order obtained or served within the periods limited by section 1288 of the Civil Practice Act.
    Order affirmed, with costs;

      Kenneth B. Thompson for appellants.

      James Dempsey for respondents.
   no opinion.

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


text:
    William J. Schieffelin, Respondent, v. Charles W. Berry, as Comptroller of the City of New York, et al., Appellants.

      New York city — civil service — retirement system — local laws amending charter relative to retirement system invalid.

      Schieffelin v. Berry, 217 App. Div. 451, affirmed.
    (Argued September 29, 1926;
    decided October 19, 1926.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 4, 1926, which affirmed an order of Special Term granting a motion for an injunction pendente lite in a taxpayer’s action to enjoin the payment of a retirement allowance to defendant John F. Hylan.
    The following questions were certified:
    “ 1. Does the complaint state facts sufficient to constitute a cause of action?
    “ 2. Had the municipal assembly of the city of New York the power to enact Local Law No. 10 of the year 1925?
    “ 3. Had the municipal assembly of the city of New York the power to enact Local Law No. 18 of the year 1925? ”
    Order affirmed, with costs; first question certified answered in the affirmative; second and third in the negative;

      George P. Nicholson, Corporation Counsel (John F. O'Brien, William E. C. Mayer and Arthur Sweeny of counsel), for Charles W. Berry, as comptroller, et al., appellants.

      John Lehman for John F. Hylan, appellant.

      Leonard M. Wallstein and Ralph M. Frink for respondent.
   no opinion.

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

Dissenting: Pound and Crane, JJ.


text:
    In the Matter of the Application of Eugene Higgins, Appellant, against George P. Nicholson, as Corporation Counsel of the City of New York, Respondent. In the Matter of the Application of Peter Rollar, Appellant, against George P. Nicholson, as Corporation Counsel of the City of New York, Respondent. In the Matter of the Application of Estate of Bradish Johnson, Inc., Appellant, against George P. Nicholson, as Corporation Counsel of the City of New York, Respondent.
    (Argued September 29, 1926;
    decided October 19, 1926.)

      New York city — ■street closing — -mandamus to compel corporation counsel to institute proceedings to compensate property owners for closing of streets properly denied.

      Matter of Higgins v. Nicholson, 218 App. Div. 751, affirmed.

      Matter of Rollar v. Nicholson, 216 App. Div. 752, affirmed.

      Matter of Estate of Johnson, 216 App. Div. 752, affirmed.
    Appeal, in each of the above-entitled proceedings, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 26, 1926, which affirmed an order of Special Term denying a motion for a peremptory order of mandamus to compel the corporation counsel of the city of New York to institute proceedings pursuant to chapter 1006 of the Laws of 1895, and the acts amendatory thereof, for the ascertainment and determination of the compensation which should justly be made to petitioner for damages caused by the alleged closing and discontinuance of former Twelfth avenue from the southerly line of West Forty-second street to the northerly line of West Fifty-first street, and the alleged closing and discontinuance of West Forty-second, Forty-third, Forty-fourth, Forty-fifth, Forty-sixth, Forty-seventh, Forty-eighth, Forty-ninth and Fiftieth streets, from the westerly line of new Twelfth avenue to the bulkhead line, as shown on map dated June 20, 1916, adopted by the board of estimate and apportionment and approved by the mayor on July 27,1916, and duly filed in accordance with law on September 25, 1916, in the borough of Manhattan, city of New York. The motion was denied on the ground that Twelfth ayenue and the named intersecting streets were not discontinued and closed.
    Order in each proceeding affirmed, with costs;

      Ralph L. Baldwin for Eugene Higgins, appellant.

      Charles J. Nehrbas and Maurice L. Rippe for Peter Rollar, appellant.

      Spotswood D. Bowers and Henry M. Carpenter for estate of Bradish Johnson, Inc., appellant.

      George P. Nicholson, Corporation Counsel (L. Howell La Motte and Joel J. Squier of counsel), for respondent.
   no opinion.

Concur: Cardozo, Pound, McLaughlin, Crane and Lehman, JJ.

Dissenting: His cock, Ch. J., and Andrews, J.


text:
    The People of the State of New York, Respondent, v. Salvatore Demasco, Appellant.
    (Argued September 29, 1926;
    decided October 19, 1926.)

      Crimes — burglary in third degree and larceny in first degree —judgment of conviction affirmed.

      People v. Demasco, 215 App. Div. 829, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 8, 1926, which affirmed a judgment of the Nassau County Court rendered upon a verdict convicting the defendant of the crimes of burglary in the third degree and larceny in the first degree.
    Judgment affirmed;

      Joseph Lonardo for appellant.

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

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


text:
    Jacob Prowler, Appellant, v. The City of New York, Respondent.
    (Submitted September 29, 1926;
    decided October 19, 1926.)

      Civil service— New York city — action for salary from date of removed to date of reinstatement in office — amount earned during absence deducted from total of salary.

      Prowler v. City of New York, 216 App. Div. 824, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered June 8, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was for salary claimed to be due the plaintiff as assistant foreman in the uniformed force of the department of street cleaning of the city of New York for the period from the date of his removal upon charges to the date of his reinstatement pursuant to an order of certiorari. The trial court directed a verdict for the full amount of such salary. The Appellate Division modified the judgment by deducting therefrom the amount earned by the plaintiff during his absence from duty.
    Judgment affirmed, with costs;

      Charles C. Sanders and William Weintraub for appellant.

      George P. Nicholson, Corporation Counsel (John F. O’Brien, Henry J. Shields and Arthur H. Kerns of counsel), for respondent.
   no opinion.

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


text:
    Charles Ragone, Respondent, v. The State of New York, Appellant.
    (Submitted September 29, 1926;
    decided October 19, 1926.)

      State — claim for damage to building and contents from being struck by motor truck belonging to State and driven by its employee while engaged in canal work — section 47 of Canal Law sufficiently broad to authorize award though accident not on canal lands.

      Ragone v. State of New York, 211 App. Div. 573, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 7, 1925, affirming a judgment in favor of plaintiff, entered upon an award of the Court of Claims. The claim was for damages to plaintiff’s building and its contents caused by the building being struck by a motor truck belonging to the State, engaged in work connected with the canals and driven by an employee of the State. The accident did not occur on canal lands but it was held that the provisions of section 47 of the Canal Law were sufficiently broad to permit an award.
    Judgment affirmed, with costs;

      Albert Ottinger, Attorney-General (Frederick D. Colson of counsel), for appellant.

      James F. Martin for respondent.
   no opinion.

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

Dissenting: Cardozo, Pound and McLaughlin, JJ.


text:
    Anna Jablonor, as Administratrix of the Estate of Theodore Jablonor, Deceased, Appellant, v. Village of Rockville Centre, Respondent.
    (Argued September 29, 1926;
    decided October 19, 1926.)

      Negligence — villages — highways — action against village for death from accident caused by defect in highway — complaint properly dismissed where defect was in approach to bridge for which town alone was responsible.

      Jablonor v. Village of Rockville Centre, 215 App. Div. 713, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 3, 1925, affirming 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 in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate died from the result of injuries received through the overturning of an automobile in which he was riding alleged to have been caused by an unguarded hole or depression in one of defendant’s highways. The trial court held that as matter of law the part of the highway where the accident occurred was an approach to and part of a bridge for a defect in which the town of Hemp-stead and not defendant was responsible.
    Judgment affirmed, with costs;

      Hiram C. Todd and E. Raymond Shepard for appellant.

      Francis G. Hooley for respondent.
   no opinion.

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

Dissenting: Crane, J.


text:
    Helen Murphy, as Administratrix of the Estate of Joseph Murphy, Deceased, Appellant, v. Stanley Court Realty and Construction Company, Respondent.
    (Argued September 29, 1926;
    decided October 19, 1926.)

      Negligence — elevators — action to recover for death from fall down elevator shaft — complaint dismissed for failure of proof of negligence on part of defendant.

      Murphy v. Stanley Court Realty & Const. Co., 216 App. Div. 736, affirmed.
    Appeal from a judgment, entered April 19, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate went into defendant’s building to deliver merchandise to a tenant, entered the elevator and got off at the second floor, the elevator proceeding to the tenth floor. On its down trip the operator found the shaft door at the second floor open and upon examination intestate’s body was found at the bottom of the shaft. The complaint was dismissed on the ground that there was no proof of negligence on the part of defendant.
    Judgment affirmed, with costs;

      Frank L. Tyson for appellant.

      Bertrand L. Pettigrew for respondent.
   no opinion.

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

Dissenting: Pound and Crane, JJ.


text:
    Millard J. Bloomer, Respondent, v. Eleanor L. Coffin, as Executrix of James A. Coffin, Deceased, Appellant.
    (Argued September 29, 1926;
    decided October 19, 1926.)

      Bills, notes and checks — action against executor of indorser of promissory note — sufficiency of notice of protest.

      Bloomer v. Coffin, 216 App. Div. 832, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 25, 1926, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover the amount due on a promissory note of which defendant’s intestate was an indorser. The defense was that due notice of non-payment of the note was not given- to defendant, testator having died a few days after the making of the note. It appeared that notice of protest had been mailed addressed to testator at his former office and there was testimony that after his death all mail received at the office addressed to testator was forwarded to defendant’s attorney.
    Judgment affirmed, with costs;

      George H. Bruce and Ronald K. Brown for appellant.

      Frank Parker Ufford for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Charles T. McKenzie, Appellant.
    (Argued September 30, 1926;
    decided October 19, 1926.)

      Crimes — libel —judgment of conviction affirmed.

      People v. McKenzie, 217 App. Div. 754, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 1, 1926, which affirmed a judgment of the Orange County Court rendered upon a verdict convicting the defendant of the crime of libel.

      Judgment affirmed;

      Henry Hirschberg for appellant.

      Elmer H. Lemon for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Albert Granno, Appellant.
    (Argued September 30, 1926;
    decided October 19, 1926.)

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

      People v. Granno, 217 App. Div. 801, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered July 3, 1926, which affirmed a judgment of the Schenectady County Court rendered upon a verdict convicting the defendant of the crime of robbery in the first degree.
    Judgment affirmed;

      Walter A. Fullerton, James A. Leary and H. A. Gordon for appellant.

      Harold E. Blodgett, District Attorney, for respondent.
   no opinion.

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


text:
    Paul E. Meyer, Respondent, v. Morris Rosenthal, Appellant.
    (Submitted September 30, 1926;
    decided October 19, 1926.)

      Bills, notes and checks — indorsement —■ evidence — action by indorser of promissory note to recover from prior indorser amount paid — parol evidence showing that though his name appeared first on note, plaintiff had indorsed after defendant, proper.

      Meyer v. Rosenthal, 216 App. Div. 766, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 23, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover an amount paid by plaintiff as indorser of a promissory note, it being alleged that defendant was a prior indorser thereof. The note showed on the back thereof the name of the plaintiff above that of defendant but parol evidence was received over objection showing that plaintiff had indorsed after defendant. It was contended that the reception of such evidence was error.
    Judgment affirmed, with costs;

      Myron Butler and Isidore Siegeltuch for appellant.

      Peter B. Hanson and Frank J. Irving for respondent.
   no opinion.

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


text:
    Creswell MacLaughlin, Appellant, v. Ernest G. Stillman, Respondent.
    (Argued September 30, 1926;
    decided October 19, 1926.)

      Contract —■ services — action for breach of alleged contract to employ plaintiff for life.

      MacLaughlin v. Stillman, 215 App. Div. 720, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 20, 1925, affirming a judgment in favor of defendant entered upon a verdict. The action was to recover for breach of an alleged oral contract whereby defendant agreed to employ plaintiff for life.
    Judgment affirmed, with costs;

      Henry Hirschberg for appellant.

      Graham Witschief for respondent.
   no opinion.

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


text:
    George A. Evalenko, Respondent, v. Robert M. Catts, Appellant.
    (Argued October 1, 1926;
    decided October 19, 1926.)

      Bills, notes and checks — pleading — action to recover upon promissory note —• sham defense.

      Evalenko v. Catts, 215 App. Div. 805, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 23, 1926, unanimously affirming a judgment in favor of plaintiff entered upon an order of Special Term granting a motion to strike out the answer and for summary judgment. The action was to recover upon a promissory note. The answer set up as a defense payment of the note and also a counterclaim based on an agreement alleged to have been made between the parties subsequent to the date of the said note whereby it was claimed that the defendant paid or caused to be paid at the special instance and request of the plaintiff the sum of $232,237.07, leaving a balance due the defendant, after deducting the amount of the note, of $127,006.37, for which an affirmative judgment was demanded. This defense the trial court held to be sham.
    Judgment affirmed, with costs;

      Charles B. Coulter and Arnold L. Dams for appellant.

      Reuben Tally for respondent.
   no opinion.

Concur: Cardozo, Pound, Crane and Lehman, JJ.

Dissenting: His cock, Ch. J., McLaughlin and Andrews, JJ.


text:
    Helen G. Russell, Respondent, v. Paul Recker, Appellant.
    (Argued October 1, 1926;
    decided October 19, 1926.)

      Negligence — motor vehicles — action for injuries occasioned by collision between two automobiles at street intersection.

      Russell v. Recker, 216 App. Div. 767, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 26, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by-plaintiff through the negligence of defendant in driving his automobile into another automobile in which plaintiff was riding at the intersection of South Broadway and Shady Lane in the city of Yonkers.
    Judgment affirmed, with costs;

      Edward P. Mowton for appellant.

      Nathaniel Cohen for respondent.
   no opinion.

Concur: Cardozo, Pound, Crane, Andrews and Lehman, JJ.

Dissenting: Hiscock, Ch. J., and McLaughlin, J.


text:
    Irene Broman, an Infant, by Hilda Broman, Her Guardian ad Litem, Respondent, v. Heling Contracting Corporation, Appellant. Hilda Broman, Respondent, v. Heling Contracting Corporation, Appellant.
    (Argued October 1, 1926;
    decided October 19, 1926.)

      Negligence — motor vehicles — action for injuries occasioned by collision between two automobiles at street intersection.

      Broman v. Heling Cont. Corp. (2 eases), 216 App. Div. 763, affirmed.
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 15, 1926, affirming a judgment in favor of plaintiff entered upon a verdict. Both actions were to recover for personal injuries alleged to have been sustained by plaintiffs through the negligence of defendant. Plaintiffs were driving in an automobile easterly on the right-hand side of Park avenue in the town of Babylon, Long Island. When within a few feet of Carl avenue defendant’s motor truck came rapidly around the southwest corner and to avoid hitting same, plaintiffs were obliged to swing to the left and, crossing the street, struck a pole causing the injuries complained of.

      Judgment in each case affirmed, with costs;

      Edward P. Mowton and Irving W. Young, Jr., for appellant.

      Douglas C. Lawrence and William V. Burke for respondents.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Louis Chapman, Appellant.
    (Argued October 4, 1926;
    decided October 19, 1926.)

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

      People v. Chapman, 216 App. Div. 799, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 23, 1926, which affirmed a judgment of the Bronx County Court rendered upon a verdict convicting the defendant of the crime of murder in the second degree.
    Judgment affirmed;

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

      John E. McGeehan, District Attorney (Herman J. Fliederblum, George B. De Luca and I. J. P. Adlerman of counsel), for respondent.
   no opinion.

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


text:
    Mary L. Alloway, Respondent, v. William Hickok et al., by Janet Hickok, Their Guardian ad Litem, et al., Appellants.
    (Argued October 4, 1926;
    decided October 19, 1926.)

      Malicious mischief — damages — action to recover for malicious injury to personal property — treble damages.

      Alloway v. Hickok, 215 App. Div. 86, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 8, 1926, modifying and affirming as modified a judgment in favor of" plaintiff entered upon a verdict. The action was to recover for malicious injury to personal property. After rendition of the verdict plaintiff moved under section 1433 • of the Penal Law and section 435 of the Civil Practice Act for a direction that judgment be entered for three times the amount of the verdict, which motion was denied. The Appellate Division modified the judgment so as to award treble damages.
    Judgment affirmed, with costs;

      J. F. Halstead, C. P. Franchot, Philip A. Forty and Charles C. Coleman for appellants.

      Elbert N. Oakes for respondent.
   no opinion.

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

Dissenting: Lehman, J. Not voting: Pound, J.


text:
    Isaiou Trading Corporation, Respondent, v. Great American Insurance Company of New York, Appellant.
    (Argued October 4, 1926;
    decided October 19, 1926.)

      Insurance (marine) — contract — limitation of actions — action to recover on policy of marine insurance for damage to merchandise —• defenses that action was not brought within time limited by policy and that losses did not occur while goods were in transit.

      Isaiou Trading Corp. v. Great Am. Ins. Co., 216 App. Div. 792, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 10, 1926, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon certificates of insurance issued under an open policy of marine insurance covering merchandise shipped by plaintiff from New York to Constantinople. The shipment left New York January 24, 1920, and was discharged at Constantinople March 14, 1920, but, owing to congestion at the custom house, remained on the dock until the end of November, 1920. When located the merchandise was found to be in bad condition. Plaintiff thereupon demanded of defendant’s agent a survey which took place December 11, 1920, and January 26, 1921, the reports thereon being received by plaintiff in June, 1921, whereupon the claim in suit was. made. The defenses were: (1) That the action was not commenced within one year from the date of the happening of the loss out of which plaintiff’s claim arose as required by .plaintiff’s policy of insurance and that plaintiff’s claim was, therefore, barred. (2) That the plaintiff’s loss did not occur while the goods insured were in due course of transit and that plaintiff’s loss was, therefore, beyond the scope of the policy and by a peril not insured against.
    Judgment affirmed, with costs;

      Arthur W. Clement, D. Roger Englar and Oscar R. Houston for appellant.

      S. Lawrence Miller and Watson B. Robinson for respondent.
   no opinion.

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

Dissenting: Cardozo and McLaughlin, J J.


text:
    The People of the State of New York, Respondent, v. Murrie Siegel, Appellant.
    (Submitted October 11, 1926;
    decided October 19, 1926.)

      Appeal — death of defendant in criminal case — motion to dismiss appeal granted.

      People v. Siegel, 213 App. Div. 827, appeal dismissed.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 6, 1925, which-affirmed a judgment of the Nassau County Court convicting the defendant of the crime of burglary in the second degree.
    The motion was made upon the ground that the defendant is now deceased.

      Elvin N. Edwards, District Attorney (Charles I. Wood of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    De Forest Radio Telephone and Telegraph Company, Respondent, v. Triangle Radio Supply Co., Inc., Appellant. De Forest Radio Telephone and Telegraph Company, Respondent, v. Radio Stores Corporation, Appellant.
    (Submitted October 11, 1926;
    decided October 19, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 283.)


text:
    The People of the State of New York, Respondent, v. John Korrey, Appellant.
    (Submitted October 18, 1926;
    decided October 19, 1926.)

      Appeal — failure to prosecute appeal — motion to dismiss denied.

    Reported below, 211 App. Div. 806.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 7, 1924, which affirmed a judgment of the Court of Special Sessions of the City of New York, convicting the defendant of the crime of violating section 1293-c of the Penal Law.
    The motion was made upon the ground of failure to prosecute the appeal.

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for motion.

      Bernard H. Sandler opposed.
   Motion denied on condition that within twenty days appellant file return and serve copies thereof. Otherwise motion granted and appeal dismissed.


text:
    In the Matter of the Application of Bernard Naughton, Appellant. Republican County Committee of Westchester County et al., Respondents.
    (Argued October 21, 1926;
    decided October 22, 1926.)

      Election Law — nominations — authority of county committee to fill vacancy caused by disqualification of nominee.

      Matter of Naughton, 218 App. Div. 741, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 19, 1926, which affirmed an order of Special Term denying an application for an order declaring null and void the certificate of nomination of Jere Milliman as Republican nominee for comptroller of Westchester county. Milliman was named by a majority of a quorum of the Republican county committee to fill a “vacancy caused by the disqualification of the candidate nominated at the primary election. The question was whether the word “ disqualification ” in section 139 of the Election Law refers only to a condition arising after nomination.
    Order affirmed, without costs;

      Humphrey J. Lynch and Benjamin M. Freeman for appellant.

      Henry R. Barrett, Lee Parsons Davis and William A. Davidson for respondents.
   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. William Barszyouk, Appellant.
    (Argued October 14, 1926;
    decided October 22, 1926.)

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

    Appeal from a judgment of the Supreme Court, rendered June 18, 1926, at a. Trial Term for the county of Kings, upon a verdict convicting the defendant of the crime of murder in the first degree.

      Judgment of conviction affirmed;

      Francis D. McGarey and Joseph S. Boyle for appellant.

      Charles J. Dodd, District Attorney (James I. Cuff of counsel), for respondent.
   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. Kasimir Barszyouk, Appellant.
    (Argued October 14, 1926;
    decided October 22, 1926.)

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

    Appeal from a judgment of the Supreme Court, rendered June 18, 1926, at a Trial Term for the county of Kings, upon a verdict convicting the defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      Abraham L. Doris and John B. Johnson for appellant.

      Charles J. Dodd, District Attorney (James I. Cuff and Henry J. Walsh of counsel), for respondent.
   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 Maxwell, Appellant.
    (Argued October 14, 1926;
    decided October 22, 1926.)

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

    Appeal from a judgment of the Supreme Court, rendered June 18, 1926, at a Trial Term for the county of Kings, upon a verdict convicting the defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      Walter R. Kuhn and Gardiner Conroy for appellant.

      Charles J. Dodd, District Attorney (James I. Cuff of counsel), for respondent.
   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. Brennan, Appellant.
    (Argued October 13, 1926;
    decided October 22, 1926.)

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

    Appeal from a judgment of the Kings County Court, rendered February 1, 1926, upon a verdict convicting the defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      David L. Malbin and George Bosling for appellant.

      Charles J. Dodd, District Attorney (James I. Cuff and Henry J. Walsh of counsel), for respondent.
   no opinion.

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


text:
    Liberty Adjustment Company, Inc., Respondent, v. Maurice Gillette et al., Appellants.
    (Submitted October 7, 1926;
    decided October 22, 1926.)

      Landlord and tenant — false representations— pleading — sufficiency of complaint in action to recover moneys deposited and expended and for damages arising from false representation whereby plaintiff was induced to sublease premises.

      Liberty Adjustment Co., Inc., v. Gillette, 215 App. Div. 805, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 22, 1926, which affirmed an order of Special Term denying a motion by defendants for a dismissal of the complaint which alleged that plaintiff, through the false representations of defendants, had been induced to sublease certain premises of which defendants were lessors and demanded judgment for the amount of moneys deposited and expended and for damages.
    The following question was certified: “ Does the complaint herein state facts sufficient to constitute a cause of action? ”

      Jerome A. Strauss for appellants.

      Philip E. Bosenblum and Samuel I. Ferguson for respondent.

      Order affirmed, with costs; question certified answered in the affirmative;
   no opinion.

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


text:
    Stogop Realty Co., Inc., et al., Respondents, v. National Surety Company et al., Appellants.
    (Argued October 7, 1926;
    decided October 22, 1926.)

      Principal and surety — landlord and tenant —■ action to recover upon surety bond for failure of lessee to make improvements as required by lease.

      Stogop Realty Co., Inc., v. National Surety Co., 216 App. Div. 198, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 23, 1926,' unanimously affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court. The action was to recover upon a surety bond for failure of the principal to complete certain alterations and improvements according to the terms of a lease between plaintiff as lessor and said principal as lessee.
    Judgment affirmed, with costs;

      Carlisle Norwood and Thomas L. Walsh for appellants.

      Ralph Wolf and Henry Abelson for respondents.
   no opinion.

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


text:
    Knute Haugen, Respondent, v. John B. Breymann et al., Copartners under the Firm Name of George H. Breymann & Son, Appellants.
    (Argued October 7, 1926;
    decided October 22, 1926.)

      Negligence — master and servant ■ — ■ ships and shipping — sinking of vessel through negligence of owner — action by seaman to recover for injury to health occasioned by fall into water.

      Haugen v. Breymann, 217 App. Div. 753, affirmed.
    ■ Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 1, 1926, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial, in an action to recover for personal injury alleged to have been sustained by plaintiff through the negligence of defendants. Plaintiff was employed on a dredge belonging to defendants. During a night in February the dredge, while moored in the harbor, sank, and plaintiff in jumping to a scow alongside fell into water up to his waist, from which it is alleged he developed a cold resulting in tuberculosis. The Appellate Division held that the plaintiff established a mima facie case upon the question of defendant’s negligence resulting in the sinking of the dredge, and that the question whether plaintiff’s condition proximately resulted from defendant’s negligence should have been submitted to the jury.
    Order affirmed and judgment absolute ordered against appellants on the stipulation, with costs in all courts;

      Theodore H. Lord, James B. Henney and W. S. O’Connor for appellants.

      Jacquin Frank and David M. Fink for respondent.
   no opinion.

Concur: His cock, Ch. J., Cabdozo, Pound, McLaughlin, Cbane, Andhews and Lehman, JJ.


text:
    Anna S. Allendorf, Respondent, v. Interborough Rapid Transit Company, Appellant.
    (Argued October 7, 1926;
    decided October 22, 1926.)

      Negligence — railroads — carriers — injury to passenger from stepping into opening between platform and train.

      Allendorf v. Interborough Rapid Transit Company, 216 App. Div. 800, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 7, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, while attempting to board one of defendant’s trains at the Times Square subway station in the city of New York, stepped into an opening between the train and station platform and received the injuries complained of. There was evidence that the crowd was so great as to deprive plaintiff of control over her movements; that no device was provided by defendant to close or bridge the open space and that no warning was given of its existence.
    Judgment affirmed, with costs;

      B. H. Ames and James L. Quackenbush for appellant.

      Don R. Almy for respondent.
   no opinion.

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


text:
    Bernard Bergmann, Respondent, v. S. Charles Hirschberg, Appellant.
    (Argued October 6, 1926;
    decided October 22, 1926.)

      Contract — reformation —■ action to reform written agreement giving option to repurchase stock so as to provide for purchase of stock at fixed price upon plaintiff leaving employment.

      Bergmann v. Hirschberg, 216 App. Div. 711, affirmed.
    Appeal from a judgment, entered March 5, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to reform a written agreement for the sale by defendant to plaintiff of certain stock, reserving to the defendant an option to repurchase the same, plaintiff contending that by false representations he was led to believe that the agreement was that if plaintiff should leave his employment defendant would repurchase the stock at a fixed price.
    Judgment affirmed, with costs;

      A. S. Cutler and S. S. Grog gins for appellant.

      Nathan Waxman for respondent.
   no opinion.

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

Dissenting: Cabdozo, McLaughlin and Lehman, JJ., on the ground that the findings of the Appellate Division are contrary to the weight of evidence.


text:
    The City of New York, Respondent, v. United States Wood Preserving Company, Defendant, and Globe Indemnity Company et al., Appellants.
    (Argued October 6, 1926;
    decided October 22, 1926.)

      Principal and surety — contract — guaranty— New York city — guaranty that contractor would maintain pavement for five years — action to recover cost of repairing defects appearing before termination of guaranty period but not repaired until after —• city not obliged to inspect and notify contractor.

      City of New York v. U. S. Wood Preserving Co., 216 App. Div. 711, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon a surety bond guaranteeing the maintenance by a paving contractor of the pavement in good condition for five years after completion of the work. The maintenance period expired July 28, 1919. It was stipulated that defects appeared in January, 1919, which were repaired by the city after expiration of the maintenance term. Defendants contended that under a provision of the contract plaintiff was bound, just prior to the expiration of the guaranty period, to inspect the work and notify the contractor to repair defects.
    Judgment affirmed, with costs;

      John R. Halsey for appellants.

      George P. Nicholson, Corporation Counsel (John F. O’Brien and Samuel Plumer of counsel), for respondent.
   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. Frank De R. Storey, Appellant.
    (Argued October 6, 1926;
    decided October 22, 1926.)

      Crimes — receiving stolen property — judgment of conviction affirmed.

      People v. Storey, 215 App. Div. 446, affirmed.
    Appeal from a judgment of the Appellate Division ' of the Supreme Court in the first judicial department, entered February 5, 1926, which affirmed a judgment of the Court of General Sessions of the Peace in the County of New York, rendered upon a verdict convicting defendant of the crime of criminally receiving stolen property.
    Judgment affirmed under the provisions of section 542 of the Code of Criminal Procedure;

      George Gordon Battle and Harrison W. Gebhardt for appellant.

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

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


text:
    William S. Evans, Respondent, v. Star Company, Appellant.
    (Argued October 5, 1926;
    decided October 22, 1926.)

      Libel — charge that Member of Assembly was bribed to absent himself from meeting of committee.

      Evans v. Star Co., 216 App. Div. 736, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 31, 1926, modifying and affirming as modified a verdict in favor of plaintiff entered upon a verdict in an action for libel. The complaint alleged that defendant published in its newspapers articles falsely charging defendant, a Member of Assembly, of having been bribed to absent himself from a meeting of the judiciary committee of which he was a member.

      Judgment affirmed, with costs;

      Clarence J. Shearn and William A. De Ford for appellant.

      Martin Conboy, Henry T. Hall and Don B. Almy for respondent.
   no opinion.

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


text:
    Earl R. Dickes, as Trustee for Holmes Automobile Company and Walker Body Company, Respondent, v. Globe Indemnity Company, Appellant.
    (Submitted October 5, 1926;
    decided October 22, 1926.)

      Conversion — execution — action to recover value of property alleged to have been wrongfully seized under execution.

      Dickes v. Globe Indemnity Go., 216 App. Div. 710, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 24, 1926, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action, originally brought against the sheriff of the county of New York, the present defendant having been thereafter substituted, was to recover the value of an automobile and automobile chassis, alleged to have been wrongfully seized by the sheriff under execution.
    Judgment affirmed, with costs;

      David L. Fultz for appellant.

      John C. von Glahn for respondent.
   no opinion.

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


text:
    Herman Schulman, Respondent, v. Philip I. Schick, Appellant.
    (Submitted October 5, 1926;
    decided October 22, 1926.)

      Landlord and tenant — false representations — action to cancel lease and to recover damages arising from false representations of lessor.

      Schulman v. Schick, 215 App. Div. 846, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 20, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was brought to cancel a lease and to recover damages for alleged fraudulent representations by means of which plaintiff was induced to enter into the lease. The answer set up a counterclaim for rent and for the value of certain personal property alleged to have been retained by plaintiff.
    Judgment affirmed, with costs;

      Benjamin Berger for appellant. .

      John L. Crandell for respondent.
   no opinion.

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


text:
    Gaetano Brindizi, Appellant, v. Lehigh Valley Railroad Company et al., Respondents.
    (Submitted October 18, 1926;
    decided October 22, 1926.)

      Appeal — motion to withdraw appeal granted.

      Brindizi v. Lehigh Valley R. R. Co., 216 App. Div. 12, appeal withdrawn.
    Motion to withdraw an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 10, 1926, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial.
    The motion was made upon the ground that the appeal was inadvertently taken.

      Francis T. Findlay for motion.

      William M. Fay and Raymond C. Vaughn opposed.
   Motion granted on payment within twenty ^days to attorneys for each defendant of costs of appeals and ten dollars costs of motion.


author: Per Curiam.

text:
    Fred E. Gross & Son (a Corporation), Appellant, v. The State of New York, Respondent.
    (Argued October 4, 1926;
    decided November 16, 1926.)

      Appeal — jurisdiction — Court of Claims — State — appeal to Court of Appeals from judgment of Appellate Division reversing judgment and granting new trial as to counterclaim, dismissed in absence of stipulation for judgment absolute — Court of Claims has jurisdiction to pass on counterclaim against claimant.though claim has been dismissed.

    1. An appeal to this court from a judgment of the Appellate Division affirming a judgment of the Court of Claims dismissing a claim against the State but reversing a judgment in favor of the State on its counterclaim and ordering a new trial as to that, must be dismissed, so far as it relates to the reversal of the judgment on the counterclaim and the ordering of a new trial, in the absence of a stipulation for judgment absolute in case of affirmance. (Civ. Pr. Act, § 588, subd. 2.)
    2. The filing of the claim gave to the Court of Claims jurisdiction to pass on the validity of the counterclaim and it was not deprived thereof by failure of the claimant to establish his claim.

      Gross & Son v. State of New York, 214 App. Div. 386, modified.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 11, 1925, which affirmed a judgment of the Court of Claims dismissing plaintiff’s claim but reversed a judgment in favor of defendant on its counterclaim and, as to that, granted a new trial.

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

      Albert Ottinger, Attorney-General {James Gibson of counsel), for respondent.
   Per Curiam.

The plaintiff entered into a contract with the State to construct a highway in Lewis county. It claimed that the State broke the contract and it filed a claim in the Court of Claims for damages. The State as a defense to the claim, on the theory that the claimant without justification had abandoned the contract, set up a counterclaim for the damages alleged to have been sustained by it.

The Court of Claims, after trial, dismissed claimant’s claim and awarded judgment in favor of the State for the amount of its counterclaim. The claimant appealed to the Appellate Division which (one of the justices not voting) affirmed the judgment dismissing claimant’s claim; reversed the judgment on the counterclaim, and ordered a new trial as to that. The claimant thereupon appealed to this court.

After a careful consideration of the record before us, we are satisfied that the judgment dismissing the claimant’s claim is correct.

The claimant appeals from the whole judgment. It did not enter into a stipulation for judgment absolute in case the judgment granting a new trial of the counterclaim should be affirmed by this court. Subdivision 2, section 588 of the Civil Practice Act provides that-a party may as of right appeal from an order of the Appellate Division granting a new trial where the appellant stipulates that upon affirmance judgment absolute shall be rendered against him. (See, also, Sand v. Garford Motor Truck co., 236 N. Y. 327; City of Buffalo v. Stevenson, 207 N. Y. 258.) The appeal was taken as a matter of right and, therefore, the stipulation was necessary in order to give this court jurisdiction. The appeal, so far as it relates to the reversal of the judgment on the counterclaim and the ordering of a new trial, must be dismissed.

It is urged by the appellant that the Court of Claims has not jurisdiction to try the counterclaim, the claimant’s claim having been dismissed. Since there must be a new trial it may not be out of place to call attention to the fact that we are of the opinion that the Court of Claims has jurisdiction to try the counterclaim. When the claimant filed its claim in the Court of Claims that court thereby obtained jurisdiction to pass on the counterclaim as well as on claimant’s claim. The failure of the claimant to establish his claim did not deprive that court of jurisdiction to pass upon the validity of the counterclaim.

The judgment dismissing the plaintiff’s claim should be affirmed, with costs, and the appeal from an order granting a new trial of defendant’s counterclaim dismissed, without costs.

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

Judgment accordingly.


text:
    Alexander Lavine, Appellant, v. United Paper Board Company, Respondent.
    (Argued October 11, 1926;
    decided November 16, 1926.)

      Negligence ■ — • action to recover for injuries from slipping on floor — failure of proof of negligence.

      Lavine v. United Paper Board Co., 217 App. Div. 709, affirmed.
    Appeal from a judgment, entered June 7, 1926, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict 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 while in defendant’s mill to deliver goods sold, slipped and fell to the floor receiving the injuries complained of. He testified that the substance which caused his fall was slippery, sticky, slimy stuff but offered no proof as to how it had got on the floor, as to how long it had been there or that the condition was due to negligence or omission on the part of defendant.
    Judgment affirmed, with costs;

      Charles L. Hoey and Walter P. Butler for appellant.

      John J. Conners, Jr., for respondent.
   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. Fred R. Badger, Appellant.
    (Argued October 11, 1926;
    decided November 16, 1926.)

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

      People v. Badger, 217 App. Div. 424, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered August 16, 1926, which affirmed a judgment of the Franklin County Court convicting the defendant of the crime of arson in the second degree.
    Judgment affirmed;

      W. A. Fullerton for appellant.

      H. W. Main, District Attorney, for respondent.
   no opinion.

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


text:
    Amos Ploufe et al., as Administrators of the Estate of Joseph Ploufe, Deceased, Appellants, v. The Delaware and Hudson Company, Respondent.
    (Argued October 11, 1926;
    decided November 16, 1926.)

      Negligence — railroads — passenger in automobile killed in collision at railroad crossing — question of negligence for jury.

      Ploufe v. Delaware & Hudson Co., 215 App. Div. 739, appeal withdrawn.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 14, 1925, 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 dismissing the complaint and granted a new trial in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Plaintiff was killed as the result of a collision between an automobile in which he was riding as a passenger and one of defendant’s trains. The trial court dismissed the complaint on the ground that intestate was guilty of contributory negligence as matter of law. The Appellate Division reversed and granted a new trial on the ground that questions as to negligence of deceased and of defendant were for the jury.
    Plaintiff allowed to withdraw appeal on payment of costs;

      Walter A. Fullerton for appellants.

      N. P. Willis for respondent.
   no opinion.

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


text:
    The Central Railroad Company of New Jersey, Appellant, v. Eben E. Olcott, Respondent.
    (Submitted October 11, 1926;
    decided November 16, 1926.)

      Negligence — master and servant — injury from lowering of gate on dock — liability as between lessee of dock who was general hirer of employees and owner of steamer permitted to land at dock at whose orders the gate was lowered by defendant's dockman.

      Central 22. 22. Co. v. Olcott, 216 App. Div. 791, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 9, 1926, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The action was to recover a sum paid in settlement of a claim for personal injuries to a third person who was injured, while on a pier leased by defendant, by a gate lowered by a dockman in his general employ. It appeared that under an agreement between plaintiff and defendant, plaintiff was permitted to use defendant’s dock to land and take passengers for its steamers and to use certain employees of defendant in connection therewith; that it had given orders that the gate should be promptly lowered when its steamer’s whistle was blown and that compliance with the order caused the injury. The trial court dismissed the complaint on the ground that at the time of the accident the dockman was doing work in behalf of plaintiff.

      Judgment affirmed, with costs;

      Charles E. Miller for appellant.

      William M. K. Olcott for respondent.
   no opinion.

Concur: His cock, Ch. J., Cardozo, Pound, Crane, Andrew's and Lehman, JJ. Taking no part: McLaughlin, J. .


text:
    Niagara Falls Ice Manufacturing and Storage Company, Appellant, v. John Casa-Eguia, Respondent.
    (Argued October 12, 1926;
    decided November 16, 1926.)

      Replevin — bills, notes and checks — collateral security — action to recover bonds given as collateral security of note and obtained by indorser, upon payment thereof — defense that bonds were sold by plaintiff in consideration of such payment.

      Niagara Falls Ice M. & S. Co. v. Casa-Eguia, 215 App. Div. 750, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 24, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was in replevin to recover possession of certain bonds pledged,by plaintiff as collateral security for its promissory note. Defendant, an accommodation indorser, had paid the amount due on the note and secured possession of the bonds. The answer alleged that he had made the payment under an agreement with plaintiff that it should be considered the purchase price of the bonds thereby sold to him.
    Judgment affirmed, with costs;

      Frank Gibbons for appellant.

      Edward E. Franchot for respondent.
   no opinion.

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


text:
    Henry Oestreicher, Respondent, v. John Simpson et al., Appellants.
    (Argued October 12, 1926;
    decided November 16, 1926.)

      Negligence — appraisers — action to recover for alleged negligent appraisal of jewelry.

      Oestreicher v. Simpson, 216 App. Div. 713, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 1, 1926, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for an alleged negligent appraisal of jewelry. The complaint alleged that plaintiff hired defendants, who represented themselves to be expert appraisers, to appraise certain jewelry which he informed them he desired to purchase, and that defendants negligently fixed the value thereof at $22,000, when in fact it was worth no more than $10,550, and that relying upon defendant’s appraisal plaintiff purchased the jewelry, for $17,598.33 and was damaged accordingly.
    Judgment affirmed, with costs;

      Clarence K. McGuire for appellants.

      Jonah J. Goldstein and Joseph W. Ferris for respondent.
   no opinion.

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


text:
    Richard Croker, Jr., Respondent and Appellant, v. New York Trust Company, as Temporary Administrator of the Estate of Richard Croker, Deceased, Appellant and Respondent.
    (Argued October 13, 1926;
    decided November 16, 1926.)

      Loan — accounting — action to recover moneys alleged to have been loaned — defenses of payment and Statute of Limitations — counterclaim for accounting and transfer of property.

      Croker v. New York Trust Co., 215 App. Div. 681, affirmed.
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 17, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to recover moneys alleged to have been loaned by plaintiff to defendant’s intestate. The answer set up the defenses of payment and the Statute of Limitations and as counterclaim demanded an accounting from plaintiff and a transfer of a certain warehouse alleged to be the property of defendant.
    Judgment affirmed, without costs;

      Harold Nathan for appellant.

      Frederick R. Ryan and Samuel A. Adamson for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Frank Gentile, Appellant.
    (Argued October 14, 1926;
    decided November 16, 1926.)

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

      People v. Gentile, 217 App. Div. 754, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 7, 1926, which affirmed a judgment of a Trial Term for the county of Kings rendered upon a verdict convicting the defendant of the crime of murder in the second degree.
    Judgment affirmed;

      John B. Johnston for appellant.

      Charles J. Dodd, District Attorney {Henry J. Walsh of counsel), for respondent.
   no opinion.

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


text:
    Joseph Piasecki, as Administrator of the Estate of Sophia Piasecki, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    (Argued October 14, 1926;
    decided November 16, 1926.)

      Insurance — contract —fraud — provision in policy for incontestability after two years applicable though insured dies before expiration of period — questions whether policy had been contested within term and as to fraud properly left to jury.

      Piasecki v. Met. Life Ins. Co., 214 App. Div. 852, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 13, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon two policies of life insurance issued December 5, 1921, upon the life of intestate. She died December 26, 1921. Proof of death was filed in August, 1923, and this action commenced March 18, 1924. The policies provided that no obligation was assumed by the company unless on the date the policies were issued the insured was in sound health, and also that they were void if the insured upon the date of the issuance thereof had been attended by a physician for any serious disease or complaint. It was shown that intestate was not in sound health when the policies were issued and that prior thereto she had been attended by a physician for serious diseases. The policy also provided: “ This policy shall be incontestable after two years from the date of its issue, except for non-payment of premiums, fraud or misstatements of age.” The trial court, following the case of Mutual Life Ins. Co. v. Hurni Packing Co. (263 U. S. 167), held that this latter provision meant that the policy should be incontestable on the simple condition that two years shall have elapsed from the specified date and not that it should be incontestable only if insured should have lived until two years after the risk attached and left to the jury whether defendant had contested the policies within the two-year period and whether there was fraud in obtaining the insurance.

      Judgment affirmed, with costs;

      Eugene Van Voorhis for appellant.

      Samuel Levy for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Joseph D. Sugarman, Appellant.
    (Argued October 15, 1926;
    decided November 16, 1926.)

      Crimes — stockbrokers — hypothecation of customer’s securities — judgment of conviction affirmed.

      People v. Sugarman, 216 App. Div. 209, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 19, 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 defendant, a stockbroker, of the crime of hypothecation of a customer’s securities in violation of section 956 of the Penal Law.
    Judgment affirmed;

      Philip C. Samuels and Max Lazarus for appellant.

      Jodb H. Banton, District Attorney (Felix C. Benvenga and Charles Henry of counsel), for respondent.
   no opinion.

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

Dissenting: Lehman, J.


text:
    James Pilkington Co., Inc., Respondent, v. The City of New York, Appellant.
    (Argued October 15, 1926;
    decided November 16, 1926.)

      Contract — New York city — action to recover for extra work and materials required in performance of contract for public work.

      Pilkington Co., Inc., v. City of New York, 216 App. Div. 756, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 29, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The action was to recover for an alleged breach of a contract entered into between the plaintiff and defendant for the construction of a system of sewers, in that plaintiff was compelled to perform certain work • and furnish and operate certain equipment, and to supply certain materials to do the work required by the contract outside of the terms of the contract itself. Damages were claimed for alleged extra work, labor, services, equipment and material required in making excavations, furnishing and operating pumps and boilers with fuel and power, supplying teams to haul material, cost of blacksmith and helper for repairing tools and equipment and boilers, all required because of the necessity of continuously pumping water from the excavations in order to keep them in a proper and safe condition to perform the work required of the contractor.
    Judgment affirmed, with costs;

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

      Philip J. Britt for respondent.
   no opinion.

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


text:
    Paul Westphal, a Corporation, Respondent, v. Westphal’s World’s Best Corporation et al., Appellants.
    (Argued October 15, 1926;
    decided November 16, 1926.)

      Tradenames — injunction — action to restrain use of name in connection with certain business.

      Westphal v. Westphal’s World’s Best Corp., 216 App. Div. 53, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 22, 1926, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to restrain the defendants from manufacturing, selling or dealing in hair tonics or other barbers’ supplies within the State of New York or elsewhere under the names of Westphal, Paul Westphal, Westphal’s, Paul Westphal Co. and Westphal’s World’s Best Corporation, or any of them, and from using the name of Westphal, either alone or in conjunction with other words or symbols in any other manner, within the i State of New York or elsewhere, in connection with a hair tonic or barbers’ supply business.
    Judgment affirmed, with costs;

      Martin Conboy and William Huck, Jr., for appellants.

      William H. Hamilton and Norman C. Conklin for respondent.
   no opinion.

Concur: Cardozo, Pound, McLaughlin and Crane, JJ.; Hiscock, Ch. J., Andrews and Lehman, JJ., dissent and vote for modification of judgment as to individual defendant Paul Westphal.


text:
    The People of the State of New York, Respondent, v. George B. Williams, Appellant.
    (Argued October 18, 1926;
    decided November 16, 1926.)

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

    Appeal from a judgment of the Court of General Sessions of the county of New York, rendered April 8, 1926, upon a verdict convicting the defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      Albert E. Schwartz' and Arthur H. Parkhurst for appellant.

      Joah H. Banton, District Attorney (Robert C. Taylor of counsel), for respondent.
   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. Edgar Humes, Appellant.
    (Argued October 18, 1926;
    decided November 16, 1926.)

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

    Appeal from a judgment of the Court of General Sessions of the county of New York, rendered April 29, 1926, upon a verdict convicting the defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      Edward Kuntz for appellant.

      Joab H. Banton, District Attorney {Robert C. Taylor of counsel), for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Charles Goldson, Appellant.
    (Argued October 18, 1926;
    decided November 16, 1926.)

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

    Appeal from a judgment of the Court of General Sessions of the county of New York, rendered May 21, 1926, upon a verdict convicting the defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      Lester R. Bachner and Samuel S. Koenig for appellant.

      Joab H. Banton, District Attorney {Robert G. Taylor of counsel), for respondent.
   no opinion.

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


text:
    James Lockhart, Appellant, v. Board of Education of Union Free School District No. 13 of the Towns of Perinton and Pittsford, Monroe County, et al., Respondents. Lillian Lockhart, an Infant, by James Lockhart, Her Guardian ad Litem, Appellant, v. Board of Education of Union Free School District No. 13 of the Towns of Perinton and Pittsford, Monroe County, et al., Respondents.
    (Argued October 19, 1926;
    decided November 16, 1926.)

      Negligence — schools — injury to child in school room from defect in furniture — complaint dismissed for lack of evidence that reasonable inspection would have disclosed defect.

      Lockhart v. Bd. of Ed. of Union Free School District (2 cases), 214 App. Div. 753, affirmed.
    Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 25, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The first action was to recover for loss of services and expense and the second for personal injuries received by the infant plaintiff in a school room of the East Rochester High School. As she attempted to sit down on a stool provided for that purpose the head flew off and she received the injuries complained of. The trial court granted a motion for a nonsuit on the ground that there was no evidence on which to base a finding that a reasonable inspection would have disclosed that the stool was out of repair.
    Judgment in each case affirmed, with costs;

      William MacFarlane for appellants.

      George Y. Webster for respondents.
   no opinion.

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


text:
    Lars Dahl, Respondent, v. Robins Dry Dock and Repair Company, Appellant.
    (Submitted October 19, 1926;
    decided November 16, 1926.)

      Negligence — master and servant — injury to machinist precipitated into hold of steamship from breaking of plank on which he went in course of his employment.

      Dahl v. Robins Dry Dock & Repair Co., 216 App. Diy. 764, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 8, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. The plaintiff was/employed as a machinist’s helper. At the time of the accident he was working as one of a gang of six or seven men under the direction of a foreman, or boss rigger, on the ship El Occident, lying in navigable water at the dock of the defendant in Brooklyn. Repairs were to be made to the engine of the ship, and a heavy engine valve was in process of being lowered into the engine room. It was necessary in the prosecution of the work to use a plank or planks to extend over an opening upon which the men could stand and reach the suspended valve, and the foreman, or boss rigger, said to the men, “ Go and look for another plank to put down here.” Plaintiff and another found a plank and brought it to the foreman who said he thought it was all right and placing it across the opening stepped thereon to reach the valve. Plaintiff followed, the plank broke and he was precipitated into the hold, receiving the injuries complained of.
    Judgment affirmed, with costs;

      Paul Koch and A. G. Maul for appellant.

      Ralph G. Barclay and William V. Burke for respondent.
   no opinion.

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


text:
    Pocahontas Tanning Company, Appellant, v. Fidelity-Phenix Fire Insurance Company of New York, Respondent.
    (Argued October 19, 1926;
    decided November 16, 1926.)

      Insurance (fire) — injury to material in course of manufacture through failure of supply of necessary ingredient caused by fire in another part of plant — no recovery under policy where it is not shown that ingredient could not be otherwise obtained.

      Pocahontas Tanning Co. v. Fidelity-Phenix F. Ins. Co., 216 App. Div. 435, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 11, 1926, in favor of defendant, upon submission of a controversy under sections 546-548 of the Civil Practice Act. The question was whether damage to hides in plaintiff’s tannery, arising from an interruption in the supply of tanning liquor • occasioned through the destruction by fire of the building where the liquor was prepared, was recoverable within the terms of a policy Insuring the plaintiff against “ all direct loss and damage by fire.” The Appellate Division held that plaintiff had failed to show “ that in order to prevent deterioration to the hides, it was necessary to complete the process of tanning before the first quality tanning liquor could have been obtained. The loss was, therefore, caused by voluntarily completing the tanning process with inferior tanning liquid instead of waiting for the proper tanning liquid. The loss was thus not caused by the fire, but through an intervening act. This intervening act made the loss not causally connected with the fire and hence the defendant is not liable.”

      Martin A. Schenck, Edward Cornell and Emily C. Holt for appellant.

      Edgar J. Nathan and W. Calvin Chestnut for respondent.
   Judgment affirmed, with costs, on the ground plaintiff’s alleged loss was not covered by policy.

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


text:
    Cardo Drug Co., Inc., Appellant, v. Chatham and Phenix National Bank of the City of New York et al., Respondents.
    (Argued October 20, 1926;
    decided November 16, 1926.)

      Banks and banking — bills, notes and checks — action to recover balance of deposit — when payment to plaintiff’s treasurer of check against which stop order had been placed, payment to plaintiff.

      Cardo Drug Co., Inc., v. Chatham & Phenix Nat. Bank, 215 App. Div. 318, affirmed.
    Appeal from a judgment, entered February 13, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint. The action was to recover an alleged balance on deposit to the credit of plaintiff with defendant bank. The answer alleged that prior to the commencement of the action the defendant bank paid to the treasurer of the plaintiff the sum of $4,000 pursuant to the terms of a check drawn by the plaintiff upon its said bank account, which check was signed by the proper officers of the corporation duly authorized and that defendant was ready and willing to pay the balance. It was shown on behalf of plaintiff that its president had requested the bank to stop payment on a blank check numbered 6712 and that defendant had in writing notified plaintiff it had done so. It also appeared that the day following, plaintiff’s treasurer presented check No. 6712-L payable to order of bearer and advised the bank the money was needed at once by the corporation in its business, and the bank, having no knowledge of trouble between the said treasurer and plaintiff or of lack, of authority on his part, paid the check.

      Otho S. Bowling and George L. Donnellan for appellant.

      Jacob Scholer for respondents.
   Judgment affirmed, with costs, on opinion of Merrell, J., below.

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


text:
    The People of the State of New York, Respondent, v. Clarence D. Davis, Appellant.
    (Argued October 21, 1926;
    decided November 16, 1926.)

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

      People v. Davis, 217 App. Div. 801, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered August 6, 1926, which affirmed a judgment of the Chemung County Court rendered upon a verdict convicting the defendant of the crime of grand larceny in the first degree.
    Judgment affirmed under the provisions of section 542 of the Code of Criminal Procedure;

      Lewis E. Mosher and Gaylord E. Riggs for appellant.

      Walter B. Herendeen, District Attorney, for respondent.
   no opinion.

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


text:
    In the Matter of the Probate of the Will of Catherine A. Baldwin, Deceased. Remsen M. Kinne et al., Appellants; Frank M. Collins as Executor, et al., Respondents.
    (Argued October 21, 1926;
    decided November 16, 1926.)

      Will — probate — when evidence of surviving witness not permitted to outweigh facts and circumstances tending to establish proper execution of holographic will.

      Matter of Baldwin, 216 App. Div. Ill, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 10, 1926, which reversed a decree of the Yates County Surrogate’s Court refusing probate of a paper propounded as the last will of Catherine A. Baldwin, deceased, and remitted the matter to said Surrogate’s Court with directions that the will be admitted to probate. The question was whether the will had been executed in accordance with statutory requirements. It was in the handwriting of the deceased, signed by her and the attestation clause in her handwriting recites that it was subscribed by the testatrix at the date thereof and that she acknowledged that she executed the same. One witness to the will died before the testatrix. The other testified she did not see the testatrix sign the will and that testatrix did not acknowledge she had signed it. Twenty-five years had elapsed, the witness was sixty-seven years of age and had forgotten some of the incidents connected with the execution of the will. The Appellate Division held that under the facts in the case, and in view of the fact that the will is holographic, the evidence of the surviving witness given twenty-five years after the will was executed should not outweigh the other facts and circumstances which tend to establish the proper execution.
    Order affirmed, with costs to respondents payable out of the estate;

      Arthur E. Sutherland and Spencer F. Lincoln for appellants.

      Calvin J. Huson and John J. Hyland for executor, respondent.

      William S. McGreevy for Fannie L. Ansley et al., respondents.
   no opinion.

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


text:
    Pierce Keefe et al., Respondents, v. Annpaul Realty Co., Inc., Appellant, Impleaded with Another.
    (Argued October 21, 1926;
    decided November 16, 1926.)

      Real property — easements — injunction — action to restrain buiiiing upon alleyway in which plaintiff had easement of me for fire exit.

      Keefe v. Annpaul Realty Co., Inc., 215 App. Div. 301, affirmed.
    Appeal from a judgment, entered February 27, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and directing judgment in favor of plaintiffs. This action was to restrain defendant Annpaul Realty Co., Inc., from building upon a right of way or alleyway in which the plaintiffs have an easement for fire exit purposes, under the following reservation contained in a deed by them to defendant’s predecessor in title: “ Reserving and excepting, nevertheless, to the parties of the first part, their heirs and assigns forever, the right to the use of the five feet wide alleyway, across the rear or westerly extremity of the above described premises, for use as a fire exit from the premises known as No. 5304 5th Avenue, immediately adjoining the above described premises on the south.”
    Judgment affirmed, with costs;

      Charles II. Kelhy, Louis Goldstein and DeWitt Bailey for appellant.

      Fred L. Gross for respondents.
   no opinion.

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


text:
    B. W. Lougheed & Co., Ltd., Appellant, v. Yone Suzuki et al., Copartners, under the Firm Name of Suzuki & Company, Respondents.
    (Argued October 21, 1926;
    decided November 16, 1926.)

      Brokers — commissions — contract — action by ship broker to recover commissions for securing charter party of steamship.

      Lougheed & Co., Ltd., v. Suzuki, 216 App. Div. 487, affirmed.
    Appeal from a judgment, entered April 30, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing judgment in favor of defendants. The action was to recover commissions as ship broker for securing a charter party for a steamship at defendant’s request. The answer set up as separate defenses, first, that the services were rendered under a contract that plaintiff should receive for its services a percentage of the hire actually paid by the charterer and if none was paid was to receive nothing; second, that it was the custom among ship brokers in the port of New York that under like charter parties commissions were payable only on hire actually received; third, that it was agreed between the parties that in the event of the inability of the defendants for any cause beyond their control to tender the vessel to the charterer before the cancellation date, and the charterer refused to accept delivery, the plaintiff should be entitled to no compensation for its services; that the defendants were unable to tender the vessel to the charterer prior to the cancellation date named in the charter and that the non-delivery of the vessel to the charterer before December 11, 1919, was not due to the negligence, default or any act of the defendants, and that, therefore, no commissions were due.
    Judgment affirmed, with costs;

      Frank W. Chambers, Alfred H. Townley and Henry Siegrist for appellant.

      George C. Sprague and H. Victor Crawford for respondents.
   no opinion.

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


text:
    Herman Kraut, Respondent, v. Louis Nordlinger, Doing Business under the Name of J. D. Nordlinger, Appellant.
    (Argued October 22, 1926;
    decided November 16, 1926.)

      Contract — sale — waiver — sale of goods to be shipped at stated time via certain route — oral waiver of provisions as to time and route.

      Kraut v. Nordlinger, 216 App. Div. 409, affirmed.
    Appeal, by permission, from a judgment, entered May 4, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which unanimously reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and directed reinstatement of the verdict. The action was to recover the purchase price of merchandise under a written contract providing for “ March shipment from Japan to New York via Panama.” The goods were not shipped until April and then via the Cape óf Good Hope. The question was whether defendant in certain alleged conversations had waived the provisions as to time and route of shipment.
    Judgment affirmed, with costs;

      H. H. Nordlinger and Samuel H. Hofstadter for appellant.

      Isidor E. Schlesinger and Samuel J. Bawak for respondent.
   no opinion.

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


text:
    Phillips & Sons (a Corporation), Respondent, v. Central of Georgia Railway Company, Appellant.
    (Argued October 22, 1926;
    decided November 16, 1926.)

      Carriers — railroads — jurisdiction—■action to recover for loss of market from delay in shipment —jurisdiction of railroad with trackage wholly without State.

      Phillips & Sons v. Central of Ga. Ry. Co., 216 App. Div. 797, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 24, 1926, which affirmed a determination of the Appellate Term affirming' an order of the Municipal Court of the city of New York denying a motion to vacate and set aside the summons and also affirming a judgment of that court in favor of plaintiff. The action was to recover damages alleged to have been caused by a loss of market arising from delay in a shipment of peaches from Georgia to New York. The motion to vacate and set aside the service of the summons was made upon the ground that the court did not obtain jurisdiction of the person of the defendant, Central of Georgia Railway Company, by delivery of the summons, because the defendant is a foreign corporation and was not carrying on business within the State of New York at the time of the attempted service. The Municipal Court held that the transaction of incidental business within the State was sufficient to give our courts jurisdiction.
    Judgment affirmed, with costs;

      John S. Montgomery for appellant.

      H. H. Nordlinger and Harold Biegelman for respondent.
   no opinion.

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

Dissenting: Cardozo and McLaughlin, JJ.


text:
    Esther Jenkins, Appellant, v. Blackstone Motor Co., Inc., Respondent.
    (Submitted October 22, 1926;
    decided November 16, 1926.)

      Contract — sale —false representations — action to recover first payment on conditional sale on ground it was induced by false representations.

      Jenkins v. Blackstone Motor Co., Inc., 216 App. Div. 583, affirmed.
    Appeal from a judgment, entered May 14, 1926, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint. The action was brought to recover $800, the first payment made on a conditional sales contract under which defendant agreed to sell and the plaintiff to buy a brougham automobile, and under which said automobile was subsequently retaken by the defendant. The complaint alleged that the contract was induced by false and fraudulent representations made to the plaintiff by defendant’s agent.
    Judgment affirmed, with costs;

      Thomas J. Mangan for appellant.

      Mack W. Terry, H. F. Nehlsen and C. L. Chamberlain for respondent.
   no opinion.

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


text:
    Benjamin Mindlin, Appellant and Respondent, v. The Druggists Circular, Inc., Respondent and Appellant.
    (Submitted October 22, 1926;
    decided November 16, 1926.)

      Contract — action for breach of advertising contract.

      Mindlin v. Druggists Circular, Inc., 216 App. Div. 748, affirmed.
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 13, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover for breach of an alleged contract whereby defendant, the publisher of a trade magazine, agreed to publish plaintiff’s advertisement for one year. Defendant admitted its refusal to publish the advertisement but claimed that it was justified in doing so by the terms of the contract.
    Judgment affirmed, without costs;

      Herman Shulman, Mortimer Hays and Benjamin Algase for plaintiff, appellant and respondent.

      Charles B. Coulter, Arnold L. Davis and Guy C. Heater for defendant, respondent and appellant.
   no opinion.

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


text:
    Diedrich Scheffer, Appellant and Respondent, v. John H. Plate, Respondent and Appellant, and Meta A. Plate, Respondent.
    (Argued October 22, 1926;
    decided November 16, 1926.)

      Real property — sale — specific performance — dowei judgment for specific performance improperly set aside.

      Scheffer v. Plate, 216 App. Div. 812, affirmed.
    Cross-appeals from a judgment, entered June 4, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, which reversed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and directed judgment declaring that defendant Meta A. Plate has an inchoate right of dower in the premises described in the complaint. Plaintiff in a former action recovered judgment directing defendant John H. Plate to specifically perform his contract to convey real property to plaintiff. Defendant tendered a deed in which his wife refused to join and plaintiff refusing same brought this action to have the rights of the parties declared. The trial court dismissed the complaint, restrained plaintiff from enforcing his judgment and vacated the same.
    Judgment affirmed, without costs;

      Otho S. Bowling and Robert H. Elder for plaintiff, appellant and respondent.

      Allen S. Wrenn and George E. Brower for defendant, respondent and appellant.

      Thomas Kelby for respondent.
   no opinion.

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