text:
    The People of the State of New York ex rel. Rutland Railroad Company, Respondent, v. The State Tax Commission, Appellant.
    (Argued May 27, 1926;
    decided June 8, 1926.)

      Tax — railroads — franchise tax upon railroad bridges crossing non-navigable streams properly annulled.

      People ex rel. Rutland R. R. Co. v. State Tax Comm., 215 App. Div. 855, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 29, 1926, which affirmed an order, entered upon the report of a referee, annulling and setting aside special franchise assessments upon bridges belonging to relator in the towns of Madrid, Potsdam and Stockholm for the year 1920. The assessments against the relator for the occupation of the three crossings in the towns mentioned were canceled upon the grounds that the Grasse, Raquette and St. Regis rivers are non-navigable streams, and, at the point of the crossings, the relator owned the lands forming the bank and bed of the rivers and the said waters were not public highways and were not public waters.

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

      John M. Cantwell for respondent.
   Per Curiam.

The order of the Appellate Division should be affirmed, with costs. We do not consider what effect, if any, chapter 180 of the Laws of 1810 and chapter 257 of the Laws of 1824 might have upon the conclusion reached by us. The case was not tried upon the theory that either statute was material, nor is such a claim argued before us by the Attorney-General.

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

Order affirmed,


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Jacob Wilner, Respondent, v. Joseph Bless, as Treasurer of Local No. 305 of the Bakery and Confectionery Workers International Union of America, Appellant.
    (Argued May 28, 1926;
    decided June 8, 1926.)

      Injunction — labor unions — members of labor union local enjoined from proclaiming existence of lockout.

    When the purpose of signs carried and circulars distributed by members of a labor union is to injure plaintiff’s business by the dissemination of false or misleading information as to the nature of the dispute between Mm and the umon, injunctive relief will be granted.

      Wilner v. Bless, 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 27, 1926, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The judgment permanently enjoined the defendant “ From picketing in front of or in the immediate vicinity of plaintiff’s place of business at No. 1074 Second Avenue, Borough of Manhattan, City of New York, and from disseminating information either orally or in writing, to the effect that plaintiff locked out his employees or to the effect that there is or was a strike in plaintiff’s said place of business.”

      Morris Hillquit for appellant.

      Henry Mayer for respondent.
   Per Curiam.

On the facts as found the signs carried

and circulars distributed by members of defendant’s local did not honestly or fairly state the nature of the labor dispute between the plaintiff and the local; i. e., that plaintiff had refused to renew his contract to employ only members of the defendant’s local; that he had made an agreement with another labor organization to employ its members only for one year and that the term of the contract between plaintiff and defendant’s local had expired.

As the purpose of the dissemination of the false or misleading information was to injure plaintiff’s business and so to coerce him to employ members of the defendant’s local only, plaintiff was entitled to have them enjoined from proclaiming the existence of a lockout of union labor.

The case does not come within the doctrine that equity will not enjoin the publication of a libel. The acts were wrongfully and continuously done to cause damage to plaintiff by coercive methods. Damage might be difficult of proof and equity will give relief.

The injunction is construed as relating to the findings of fact and directed against the acts therein found.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    Bernhard Voss, Appellant, v. W. J. Martin Coal Company et al., Respondents. (Two cases.)
    (Argued May 27, 1926;
    decided June 8, 1926.)

      Judgment — real property — title — action to set aside tax sale and, deeds as cloud on title —judgment too broad.

    In actions to set aside a tax sale and deeds as a cloud on plaintiff’s title to real property judgments not merely dismissing the complaint but adjudging defendants to be owners of the property in fee simple and barring the plaintiff from any interest therein are too broad. Conceivably the plaintiff has other claims of title not presented by the pleadings or the proofs.
    Foss v. Martin Coal Co. (2 cases), 215 App. Div. 718, 719, modified.
    Appeal, in each of the above-entitled actions, from a judgment entered February 4, 1926, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was to set aside a tax sale and deeds thereunder as a cloud on plaintiff’s title to real property in Freeport, Nassau county.

      Harry Lesser for appellant.

      Eugene L. Flanagan for respondent.
   Per Curiam.

The form of the judgment is too broad in that the complaint is not merely dismissed upon the merits, but the defendant is adjudged to be the owner of the property in fee simple and the plaintiff is declared to be barred from any interest therein.

Conceivably the plaintiff has other claims of title not presented in this record either by the pleadings or by the proofs. Whether he will be at liberty to enforce them hereafter is a question not to be determined in advance of their assertion.

In each case the judgment should be modified by striking therefrom the adjudication that the defendant is the owner of the property in fee simple and that the plaintiff is barred from any interest therein, and as so modified affirmed, with costs to the respondent.

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

Judgment accordingly.


text:
    Catherine Broderick by Celestine Broderick, Her Guardian ad Litem, Respondent, v. News Syndicate Co., Inc., Appellant.
    (Argued May 11, 1926;
    decided June 8, 1926.)

      Libel — evidence — testimony of increased mental distress by reason of acts and statements of members of plaintiff’s family after reading article — substantial rights of defendant not prejudiced by error.

      Broderick v. News Syndicate Co., Inc., 211 App. Div. 812, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 19, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action for libel. The question on appeal was whether the plaintiff in order to enhance the damages recoverable for injury to her feelings, could show that she suffered increased mental distress because of what the members of her family said and did in her presence after reading the publication complained of.

      Mac Donald De Witt for appellant.

      John J. O’Leary and John F. Heffernan for respondent.
   Judgment affirmed, with costs: Held: Errors, if any, presented by proper objection and exception did not prejudice the substantial rights of defendant.

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


text:
    John H. Giles Dyeing Machine Company, Appellant, v. Klauder-Weldon Dyeing Machine Company et al., Respondents.
    (Argued May 12, 1926;
    decided June 8, 1926.)

      Corporations — directors ■— action to compel directors to pay value of corporate property alleged to have been lost through their neglect or violation of duties.

      Giles Dyeing Machine Co. v. Klauder-Weldon D. M. Co., 212 App. Div. 771, affirmed.
    Appeal from a judgment, entered May 25, 1925, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was brought under sections 90 and 91 of the General Corporation Law to compel the directors of defendant corporation to pay the value of corporate property alleged to have been lost or wasted through neglect or violation of their duties. The gist of the plaintiff’s claim was that the individual directors of defendant corporation, while it was a solvent and going concern and able to pay all its indebtedness, transferred all its property and assets to a Pennsylvania corporation which they caused to be brought into existence and despoiled the corporation of its property and assets in violation of their duties; that they acquired for themselves and transferred to others the assets and property of defendant corporation and the proceeds of said sale and transfer and reserved nothing for the payment of the corporate creditors. The main defenses were, that the transfer was made with the knowledge and consent of the plaintiff; that the individual directors had not acquired for themselves, distributed to others or lost or wasted the assets of the defendant corporation; that the Pennsylvania corporation was solvent and assumed the debts of the New York corporation as consideration for the transfer; that there was no conspiracy or fraud and that the transfer was made pursuant to section 16 of the Stock Corporation Law.
    Judgment affirmed, with costs;

      J. H. Dealy for appellant.

      Aaron C. Thayer and Holland S. Duell for respondents.
   no opinion.

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


text:
    In the Matter of the Accounting of Frederick F. Schummers et al., as Executors of Franc C. Schummers, Deceased, Respondents. Margreta S. Van Wagnen, as Executrix, et al., Appellants; Isaac A. Rosa, as Administrator of the Estate of H. Irma S. Rosa, Deceased, Respondent.
    (Argued May 24, 1926;
    decided June 8, 1926.)

      Executors and administrators — accounting — alleged improper credit of expenditures.

      Matter of Schummers, 210 App. Div. 296, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered September 24, 1924, which modified and affirmed as modified a decree of the Monroe County Surrogate’s Court surcharging the accounts of the executors of Franc C. Schummers, deceased. The appellants contended that the executors had been improperly credited with expenditures made contrary to the provisions of the will and alleged to have been made but unproved.

      Basil Robillard for appellants.

      Clyde W. Knapp for respondents.

      Order affirmed, with costs;
   no opinion.

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


text:
    The People of the State of New York ex rel. Marion Sexton, Appellant, v. The Warden of the Female Workhouse, New York City, Defendant. The People of the State of New York, Respondent.
    (Argued May 24, 1926;
    decided June 8, 1926.)

      Habeas corpus — New York city —■ magistrate — validity of sentence imposed by magistrate other than one hearing charge against and finding defendant guilty.

      People ex rel. Sexton v. Warden, etc., 216 App. Div. 223, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 23, 1926, which reversed an order of Special Term sustaining a writ of habeas corpus, dismissed the said writ and remanded the relator to custody. The questions on appeal were as to the right of one city magistrate in the city of New York after hearing a charge of vagrancy against a defendant and finding her guilty to remand the defendant for a period not exceeding three days for the purpose of having a proper investigation made and to indorse in writing the request that any succeeding magistrate presiding in the same court impose sentence and as to the validity of the sentence so imposed.
    Order affirmed;

      Max Altmayer and Nathan Ballin for appellant.

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

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


text:
    In the Matter of the Application of Fox Lane Corporation, Appellant, for an Order of Mandamus against Frank Mann, as Tenement House Commissioner of the City of New York, Respondent. Katherine F. Reilly et al., Intervenors, Respondents. In the Matter of the Application of Fox Lane Corporation, Appellant, against John W. Moore, as Superintendent of Buildings of the Borough of Queens, City of New York, Respondent. Katherine F. Reilly et al., Respondents.
    (Argued May 24, 1926;
    decided June 8, 1926.)

      New York city — building zones — amendment of ordinance extending zone in which apartment may not be built — permit already issued does not give vested right to erect building in violation of amendment.

      Matter of Fox Lane Corp., 216 App. Div. 813, affirmed.
    Appeal in each of the above-entitled proceedings from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 16, 1926, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the issuance of a permit for the erection of an apartment house on premises at the corner of Lincoln street and Bowne avenue, Flushing, New York city. The Appellate Division held that “ since the repeal, on October 3, 1924, of former section 24 of the Building Zone Resolution, there is nothing in the zoning ordinance to save existing permits, and, as no work had been commenced, and no building erected or in course of construction, at the time of the amendment, the provisions of the present section 24 of the Building Zone Resolution which prevent the operation of an amendment to existing buildings or premises do not apply, and the expenditures made and obligations incurred by the respondent in reliance upon the permit in question were insufficient to give it a vested right to erect the building in question in violation of the amendment.”

      John J. Kuhn for appellant.

      Order in each case affirmed, with costs;

      George P. Nicholson, Corporation Counsel (John F. O’Brien and William T. Kennedy of counsel), for respondents.

      Winthrop Taylor and Gilbert W. Roberts for Sarah W. Roberts et al., intervenors.

      E. Crosby Kindleberger for Katherine F. Reilly et al., intervenors.

      Eugene V. Daly for Mary H. Daly et al., intervenors.
   no opinion.

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


text:
    In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Lands Necessary for Improvement of the Waterfront Near the Foot of State Street and Atlantic Avenue in the Borough of Brooklyn. Union Ferry Company, Respondent. In the Matter of the Application of the City of New York, Appellant, Relative to Acquiring Title to Lands Necessary for Improvement of the Waterfront Near the Foot of Hamilton Avenue and Sackett Street in the Borough of Brooklyn. Union Ferry Company, Respondent.
    (Argued May 24, 1926;
    decided June 8 1926.)

      Eminent domain — condemnation proceedings — award for property taken.

      Matter of City of New York ( Union Ferry Co.) (2 cases), 216 App. Div. 765, affirmed.
    Appeal in each of the above-entitled proceedings from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 19, 1926, which affirmed a final decree of Special Term awarding damages for property taken in condemnation proceedings. Appellant contended that the amounts awarded were grossly in excess of the fair market value of the property.

      Order in each case affirmed, with costs;

      George P. Nicholson, Corporation Counsel (Henry W. Mayo of counsel) for appellant.

      James A. Lynch for respondent.
   no opinion.

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


text:
    Ultramares Corporation, Appellant, v. Garlock Packing Company, Respondent. Bank of London and South America, Limited, Respondent, v. Garlock Packing Company, Respondent. Federal International Banking Company et al., Respondents.
    (Argued May 25, 1926;
    decided June 8, 1926.)

      Practice — consolidation of actions.

      Ultramares Corp. v. Garlock Packing Co., 215 App. Div. 674, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 23, 1925, which affirmed an order of Special Term consolidating the two above-entitled actions and bringing in new parties defendant.
    Order affirmed, with costs;

      Herbert R. Limburg and Henry L. Sherman for appellant. Franklin G. Manley for respondent.

      Edwin N. Moore for Federal International Banking Company, respondent.
   no opinion.

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


text:
    First National Bank of Newark, Respondent, v. Jerome W. Hauss, Jr., et al., Appellants.
    (Submitted June 3, 1926;
    decided June 8, 1926.)

      Appeal — motion for permission to withdraw appeal granted.

      First Nat. Bank v. Hauss, 214 App. Div. 689, appeal withdrawn.
    Motion for leave to withdraw appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 24, 1925, reversing a judgment in favor of defendants entered upon a verdict and granting a new trial.
    The motion was made on the ground that the appeal had been inadvertently taken.

      Frederick Wiedman for motion.

      Merle L. Sheffer opposed.
   Motion granted on payment of costs.


text:
    Florence M. Polsey, Respondent, v. Waldorf-Astoria, Inc., Appellant, Impleaded with Another.
    (Submitted May 31, 1926;
    decided June 8, 1926.)

      Appeal — motion to dismiss for failure to file return.

      Polsey v. Waldorf-Astoria, Inc., 216 App. Div. 86, appeal dismissed.
    Motion to dismiss an appeal from a judgment, entered April 13, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and directed reinstatement of said verdict and entry of judgment thereon.
    The motion was made on the ground of failure to file the required return.

      Herman M. Frank for motion.

      E. C. Sherwood opposed.
   Motion granted and appeal dismissed, without costs.


text:
    American Surety Company of New York, Respondent, v. Patriotic Assurance Company, Ltd., Appellant.
    (Submitted May 31, 1926;
    decided June 8, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 242 N. Y. 54.)


text:
    William G. Fraser, Respondent, v. The City of Buffalo et al., Appellants.
    (Argued May 25, 1926;
    decided June 9, 1926.)

      Municipal corporations — Buffalo (city of) — taxpayer's action — city restrained from making payments on contract on ground that it was illegally awarded.

      Fraser v. City of Buffalo, 215 App. Div. 861, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 15, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in a taxpayer’s action brought under section 51 of the General Municipal Law to have adjudged illegal a contract entered into by the city of Buffalo for certain plumbing work, on the ground that (1) the bid of the appellant Shaddock did not specify the credits to be allowed for water closets and slop sinks, which could be used again; (2) because the bid did not contain separate bids on the six so-called separate items, and (3) because the bid, as submitted, left it open to the contractor to claim that it did not include the so-called additional items.
    Judgment affirmed, with costs;

      Frederick C. Rupp, Corporation Counsel {Frank C. Westphal of counsel), for city of Buffalo et al., appellants.

      Frank J. Fitzpatrick for William E. Shaddock, appellant.

      Henry Adsit Bull 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, Appellant, v. Vincent King, Respondent.
    (Argued May 26, 1926;
    decided June 9, 1926.)

      Appeal — crimes — unlawful possession of firearms — judgment of conviction reversed and new trial granted on law and facts — appeal to Court of Appeals dismissed.

      People v. King, 216 App. Div. 240, appeal dismissed.
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 17, 1926, which reversed a judgment of the Onondaga County Court rendered upon a verdict convicting the defendant of the crime of unlawful possession of firearms in violation of subdivision'4 of section 1897 of the Penal Law, and granting a new trial.
    Appeal dismissed;

      Clarence Unckless, District Attorney (William M. Peckham of counsel), for appellant.

      George R. Fearon for respondent.
   no opinion.

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


text:
    Maurice Brill et al., Appellants, v. Maria R. Friedhoff, Respondent.
    (Argued May 26, 1926;
    decided June 9, 1926.)

      Contract —• guaranty ■— action to recover deficiency of rent under written agreement assuming obligation of former contract of guaranty.

      Brill v. Friedhoff, 215 App. Div. 680, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 4, 1925, unanimously affirming a judgment in favor of defendant entered upon a verdict directed by the court. The action was brought to recover a deficiency in rent for the period from September 1, 1917, to October 1, 1919, under a written lease entered into on October 30, 1907, between the plaintiffs and one Henry C. Meyer for the term of twelve years from October 1,1907, to September 30,1919, which lease was guaranteed by one John P. Friedhoff, and the obligations of which, it was alleged, were assumed by the defendant in this action by written agreement, dated April 17, 1915.
    Judgment affirmed, with costs;

      Ira Skutch for appellants.

      Grover C. Sniffen and William Douglas Moore for respondent. ■'

   no opinion.

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

Dissenting: Cardozo and Pound, JJ. Absent: Lehman, J.


text:
    Rockaway Pacific Corporation, Respondent, v. The State of New York, Appellant. City of New York, Appellant, v. The State of New York, Respondent.
    (Argued May 13, 1926;
    decided July 9, 1926.)

      Eminent domain ■— appropriation by State of lands for purposes of defense ■— title to award.

      Rockaway Pacific Corp. v. State of New York, 214 App. Div. 843, affirmed. *
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 6, 1925, which affirmed a judgment of the Court of Claims adjudging that the Rockaway Pacific Corporation was the owner in fee of lands on Rockaway peninsula in the county of Queens, appropriated by the State pursuant to chapter 13 of the Laws of 1917, as amended by chapter 130 of the Laws of 1917, and was entitled to any award that should be made therefor and dismissing the claim of the city of New York for the value of lands under water and of certain islands claimed to have been owned by it.
    Judgment affirmed; with costs;

      George P. Nicholson, Corporation Counsel (Willoughby B. Dobbs of counsel), for City of New York, appellant.

      Albert Ottinger, Attorney-General (James Gibson of counsel), for State of New York, appellant and respondent.

      Gordon M. Buck for respondent.
   no opinion.

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


text:
    James B. Christie, Appellant, v. Cerro de Pasco Copper Corporation, Respondent.
    (Argued May 26, 1926;
    decided July 9, 1926.)

      Master and servant ■— contract — agreement of master to provide servant with safe dwelling while resident in foreign country — complaint dismissed in action to recover for personal injuries from fall caused by breaking of railing.

      Christie v. Cerro de Pasco Copper Corp., 214 App. Div. 820, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered August 18, 1925, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The action was to recover for personal injuries alleged to have been sustained by plaintiff while in the service of defendant, a New York corporation, in the Republic of Peru. Plaintiff was injured through the breaking of the rail of a veranda against which he was leaning. He claimed to be entitled to recover in this State under a contract by which defendant agreed to provide him with a safe and suitable dwelling while in Peru.
    Judgment affirmed, with costs;

      Joseph A. Fagnant for appellant.

      Clifton P. Williamson and Edward W. Bourne for respondent.
   no opinion.

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


text:
    Plant Manufacturing Corporation, Appellant, v. Henry Renner et al., Individually and as Copartners, under the Firm Name of Renner & Maras, Respondents.
    (Argued May 27, 1926;
    decided July 9, 1926.)

      Contract ■— principal and agent — action to recover on alleged contract of' agency — complaint dismissed on ground contract too indefinite, speculative and vague.

      Plant Mfg. Corp. v. Renner, 214 App. Div. 606, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 8, 1926, unanimously affirming a judgment in favor of defendants, entered upon a dismissal of the complaint by the court at a Trial Term. The action was to recover for an alleged breach of a contract of agency. The trial court dismissed the complaint on the ground that the alleged contract was too indefinite, speculative and vague and created no obligation.
    Judgment affirmed, with costs;

      Louis W. Severy for appellant.

      Henry M. Stevenson and Henry B. Culver for respondents.
   no opinion.

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


text:
    B. & B. Trucking, Inc., Respondent, v. Home Fire and Marine Insurance Company of California, Appellant.
    (Argued May 27, 1926;
    decided July 9, 1926.)

      Insurance — notice — action to recover upon policy of fire insurance — insufficiency of notice of cancellation.

      B. & B. Trucking, Inc., v. Home F. & M. Ins. Co., 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 23, 1926, unanimously affirming a judgment entered upon an order of the court at a Trial Term setting aside a verdict in favor of defendant and directing a verdict in favor of plaintiff in an action to recover upon a policy of fire insurance. The defense was that the policy had been canceled before the loss occurred. The trial court held that the notice of cancellation was insufficient.
    Judgment affirmed, with costs;

      Harold B. 'Medina and Leo Levy for appellant.

      Chauncey E. Treadwell for respondent.
   no opinion.

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


text:
    Philip M. Bernstein, Respondent, v. Joseph A. Bernstein, Appellant.
    (Argued May 28, 1926;
    decided July 9, 1926.)

      Ejectment — landlord and tenant — breach of covenants in lease prohibiting subletting or placing of signs on building without consent of landlord.

      Bernstein v. Bernstein, 214 App. Div. 790, affirmed.
    Appeal from a judgment entered October 26, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department reversing a judgment in favor of defendant entered upon a verdict directed by the court and directing judgment in favor of plaintiff. The action was in ejectment, landlord against tenant, to recover possession of leased premises by reason of alleged breaches by the tenant of covenants prohibiting, without the written consent of the landlord, subletting or the placing of signs about the building.
    Judgment affirmed, with costs;

      Harry W. Moore for appellant.

      Benjamin Weiss for respondent.
   no opinion.

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


text:
    Rose G. Goldstein, as Trustee for Anselmo Di Pace, et al., Respondent, v. Adolph S. Hummel, Individually and as Executor of Minnie Hummel, Deceased, Appellant.
    (Argued May 28, 1926;
    decided July 9, 1926.)

      Subrogation — assessment ■ — ■ action to revive assessment lien, subrogate plaintiff thereto and foreclose same.

      Goldstein v. Hummel, 215 App. Div. 806, affirmed.
    Appeal, by permission, 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 a decision of the court on trial at Special Term. The action was in equity to revive an assessment lien, subrogate the plaintiff to the rights of the city of New York therein and foreclose the same.

      Judgment affirmed, with costs;

      Lawrence E. French for appellant.

      Merle I. St. John for respondent.
   no opinion.

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


text:
    Frank Sparling, Respondent, v. Louis B. Wade et al., Copartners under the Firm Name of Wade, Templeton & Co., Appellants.
    (Submitted May 28, 1926;
    decided July 9, 1926.)

      Stockbrokers — action to recover for failure of stockbroker to sell stocks as directed.

      Sparling v. Wade, 216 App. Div. 711, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 4, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict. The action was to recover from defendants, stockbrokers, damages alleged to have been sustained by plaintiff by reason of their failure to sell as directed, certain stocks held by them for plaintiff’s account and also to recover a. balance alleged to be due on sale of securities.
    Judgment affirmed, with costs;

      Herbert P. Queal for appellants.

      Milton Mayer and Goodman Block for respondent.
   no opinion.

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

Dissenting: Crane, J.


text:
    Benjamin Borowitz et al., Respondents, v. Peter Scalise, Appellant.
    (Submitted May 28, 1926;
    decided July 9, 1926.)

      Real property — nuisance — fences — defendant enjoined from maintaining on his premises wall over ten feet in height closing windows on adjoining premises.

      Borowitz v. Scalise, 215 App. Div. 827, affirmed.
    Appeal, by permisión, from a judgment of the Appellate Division of the Supreme Court in the second judicial department entered January 14, 1926, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term in an action to restrain the defendant from maintaining a brick wall on his premises over ten feet in height shutting up windows on plaintiff’s adjoining premises. The plaintiffs constructed two windows in the westerly wall of their building at the third floor level, opening flush upon the defendant’s property, and the defendant erected on his land a building which, though in general but two stories in height, has an easterly wall which extends upward beyond the general roof level to a point above the top of the plaintiffs’ windows. The trial court held that the wall was a private nuisance under section 3 of the Real Property Law.
    Judgment affirmed, with costs;

      Clarence G. Bachrach for appellant.

      Herbert N. Warbasse and H. L. Salpeter for respondents.
   no opinion.

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


text:
    Anna Cohen et al., as Administrators of the Estate of Gussie Cohen, Deceased, Appellants, v. The City of New York, Respondent.
    (Argued May 31, 1926;
    decided July 9, 1926.)

      Negligence — master and servant — motor vehicles — action to recover for death of plaintiff through being struck by motor truck — deviation by driver for own purposes from, route directed by master.

      Cohen v. City of New York, 215 App. Div. 382, affirmed.
    Appeal from a judgment entered February 18, 1926, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiffs entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiffs’ intestate alleged to have been sustained through the negligence of defendant. Intestate was killed by a motor truck owned by defendant and driven by one of its employees. After completion of work he had been directed by his foreman to take the truck to the garage. He followed his usual route from the stable toward the garage until he reached First avenue and Twenty-fourth street when, instead of going to the garage in Twenty-fourth street, he proceeded up First avenue to Eightieth street and then west on Eightieth street to Second avenue, where he let friends off the truck whom he had accommodated with a ride. On his return, at Sixty-seventh street and Second avenue, the accident happened.
    Judgment affirmed, with costs;

      Maxwell Slade and David H. Slade for appellants.

      George P. Nicholson, Corporation Counsel (John F. O’Brien, Elliot S. Benedict and William B. White of counsel), for respondent.
   no opinion.

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


text:
    Abram C. Wisner, Appellant, v. Edward H. Jewett, Respondent.
    (Argued May 31, 1926;
    decided July 9, 1926.)

      Contract — sale — action to recover consideration for transfer of option to purchase stock — defense that at time of transfer option had expired.

      Wisner v. Jewett, 213 App. Div. 667, affirmed.
    Appeal from a judgment entered October 21, 1925, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The action was on contract. The complaint alleged that plaintiff, having an option to purchase certain stock, transferred the same to the defendant in consideration of his agreement to transfer to plaintiff a certain number of shares of the stock after purchase. The defense was that at the time of the agreement, plaintiff’s option had expired and he had nothing to transfer.
    Judgment affirmed, with costs;

      Alfred R. Page for appellant.

      I. Maurice Wormser, Peter J. Baxter and Paul M. Abrahams for respondent.
   no opinion.

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


text:
    In the Matter of the Application of James Hart, Appellant, against George V. McLaughlin, as Police Commissioner of the City of New York, Respondent.
    (Argued May 31, 1926;
    decided July 9, 1926.)

      New York city ■— police •— compulsory retirement of lieutenant of police on arrival at sixty years of age — motion for mandamus on ground that retirement was arbitrary exercise of discretionary power denied.

      Matter of Hart v. McLaughlin, 216 App. Div. 741, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 12, 1926, which unanimously affirmed an order of Special Term denying a motion for an order of mandamus to compel restoration of petitioner to the position of lieutenant of police in the police department of the city of New York. Petitioner had been retired from the force and awarded a pension upon the sole ground that he had reached the age of sixty years, under section 355 of the charter which provided: “ * * * the said commissioner may in like manner relieve and dismiss from the service and place on the roll of the police pension fund, and grant and award a pension to any member of said force other than an honorably discharged soldier or sailor of the Mexican or late Civil War who shall have reached the age of sixty years.” It was shown that petitioner was capable and fit for service and that many members of the police force over sixty years of age were retained in service and argued that his retirement was an arbitrary' exercise of a discretionary power.

      Order affirmed, with costs;

      Leonard M. Wallstein and Ralph M. Frink for appellant.

      George P. Nicholson, Corporation Counsel {John F. O’Brien, Fllliot S. Benedict and Arthur Sweeney of counsel), for respondent.
   no opinion.

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


text:
    Peter Hay, as Administrator of the Estate of Amelia Hay, Deceased, Respondent, v. Charles Fix et al., Appellants, Impleaded with Another.
    (Argued May 31, 1926;
    decided July 9, 1926.)

      Negligence — master and servant — motor . vehicles — death of intestate as result of collision of automobile in which she was riding as passenger with another.

      Hay v. Militello, 215 App. Div. 858, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 30, 1926, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendants. Plaintiff at the time of the accident was riding as a passenger in an automobile owned by defendants and operated by their employee and was injured as the result of a collision with another automobile.
    Judgment affirmed, with costs;

      Ray M. Stanley and Ellis H. Gidley for appellants.

      Carlton J. Townsend and William J. Brock for respondent.
   no opinion.

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


text:
    The People of the State of New York, Appellant, v. Samuel Wolf, Respondent.
    (Argued June 1, 1926;
    decided July 9, 1926.)

      Crimes — abandonment of children — indictment charging defendant with abandonment of child of which he was father properly dismissed upon ground defendant was not legally married to mother of child.

      People v. Wolf, 216 App. Div. 771, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 26, 1926, which reversed a judgment of the Kings County Court, rendered upon a verdict convicting the defendant of the crime of abandonment of children and dismissed the indictment. The defendant was indicted under section 480 of the Penal Law, upon the ground that being the father of a child two months old, he abandoned such child. The proof showed that defendant was not legally married to the mother of the child. The Appellate Division held that section 480 applied only to the father of a legitimate child not to a putative father.
    Judgment affirmed;

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

      Myron 8. Yochelson for respondent.
   no opinion.

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


text:
    The American District Telegraph Company, Respondent, v. The City of New York et al., Appellants, Impleaded with Another.
    (Argued June 1, 1926;
    decided July 9, 1926.)

      New York city — duress — action to cancel franchise and recover securities deposited and money paid on ground of duress.

      American District Telegraph Co. v. City of New York, 213 App. Div. 578, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered August 4, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was commenced to cancel a franchise granted to plaintiff on February 20, 1913, by the city of New York, through its board of estimate and apportionment, and accepted by it; to recover stock deposited with the city as security for the performance of the terms of said franchise; and to recover $75,000 with interest, paid by plaintiff to the said city between March 9, 1913, and October 29, 1918, under the terms of said franchise, on the ground that the franchise was accepted, the stock deposited and the money paid under duress.
    Judgment affirmed, with costs;

      George P. Nicholson, Corporation Counsel (Vincent Victory of counsel), for appellants.

      Edward L. Blackman and Charles T. Bussell for respondent.
   no opinion.

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


text:
    Irene A. Meaney, Respondent, v. William P. Meaney, Appellant.
    (Argued June 1, 1926;
    decided July 9, 1926.)

      Duress — husband and wife — action by wife to set aside deed alleged to have been obtained by husband through undue influence and duress.

      Meaney v. Meaney, 213 App. Div. 756, affirmed.
    Appeal from a judgment entered October 30, 1925, 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, wife against husband, was to set aside a deed by the terms of which plaintiff conveyed to defendant an interest in real property. It was alleged that plaintiff’s signature to the deed was obtained through undue influence and coercion exercised by her husband, through her fear of him and his threats to her. and through his constant pressure upon her to deed him this property.
    Judgment affirmed, with costs;

      Orson A. Raynor for appellant.

      Francis X. Hennessy for respondent.
   no opinion.

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


text:
    The People of the State of New York, Respondent, v. Cosimo Brescia, Appellant.
    (Argued June 2, 1926;
    decided July 9, 1926.)

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

    Appeal from a judgment of the Supreme Court, rendered March 12, 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;

      Raymond Malone 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:
    In the Matter of the Claim of W. C. Grathwohl against Nassau Point Club Properties, Inc., et al., Respondents. State Industrial Board, Appellant.
    (Argued June 3, 1926;
    decided July 9, 1926.)

      Workmen’s compensation — master and servant — award to employee injured while cranking his own automobile in his own garage preparatory to going to work at which he used said automobile, improper.

      Grathwohl v. Nassau Point Club Properties, Inc., 216 App. Div. 107, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 12, 1926, reversing an award of the State Industrial Board made under the Workmen’s Compensation Law and dismissing the claim. Claimant was employed as foreman of a development project covering a number of miles. To visit the different parts of the property he used his own automobile, driving it back and forth from Ms home. He received the injury complained of wMle cranking the car in Ms own garage preparatory to starting to Ms work. The Appellate Division held that he was not in the course of Ms employment when the accident happened.

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

      William B. Davis for respondents.
   Order affirmed, with costs, against State Industrial Board, on opimon of Kellogg, 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. Michael Nemo, Appellant.
    (Argued June 3, 1926;
    decided July 9, 1926.)

      Crimes — extortion — judgment of conviction affirmed.

      People v. Nemo, 215 App. Div. 896, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered November 18, 1925, which affirmed a judgment of the Richmond County Court convicting the defendant of the crime of extortion.
    Judgment affirmed;

      Alfred V. Norton for appellant.

      Albert C. Fach, District Attorney (Lester L. Callan of counsel), for respondent.
   no opinion.

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


text:
    William L. Woodward, Respondent, v. Edwin A. Stevens, Jr., et al., Appellants.
    (Argued June 3, 1926;
    decided July 9, 1926.)

      Attorney and client — executors and administrators — jurisdiction — action against foreign executors to recover for legal services to estate — complaint dismissed as to trustee under deed of trust made by decedent in lifetime.

      Woodward v. Stevens, 215 App. Div. 768, modified.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 24, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The action was to recover for legal services rendered in connection with the determination of the tax liability of the estate of Edwin A. Stevens, deceased, under the Federal Estate Tax Act. Decedent was a resident of the State of New Jersey and his will was probated there. Defendants Edwin A. Stevens, Jr., and Basil M. Stevens qualified as executors in that State. Defendant John Stevens was one of the surviving trustees under a deed of trust made by decedent in his lifetime. It was contended that the defendants, foreign executors, were not subject to suit in this State.
    Judgments reversed and complaint dismissed, with costs in this court as to defendant John Stevens.
    Judgments otherwise affirmed, with costs;

      Charles J. McDermott and Henry C. Turner for appellants.

      Edmund L. Mooney, Jacob Quat and Henry T. Stetson for respondent.
   no opinion.

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


text:
    In the Matter of the Claim of Florence Hinley against The Brooklyn Heights Railroad Company, Respondent. The State Industrial Board, Appellant.
    (Argued June 3, 1926;
    decided July 9, 1926.)

      Workmen’s compensation — master and servant — loss of leg from injury and award and payment of full compensation — subsequent additional award for injury to other leg unauthorized.

      Hinley v. Brooklyn Heights R. R. Co., 215 App. Div. 857, affirmed-
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered April 12, 1926, reversing an award of the State Industrial Board and dismissing the claim. Claimant lost her left leg as the result of an injury received in the course of her employment and was allowed and received full compensation therefor. More than four years thereafter she was awarded compensation on account of reduced earnings caused by the condition of her right leg. The Appellate Division held that the two injuries constituted but one disability to work and that claimant, having received more than $3,500, may not receive further compensation.
    Order affirmed, with costs against State Industrial Board;

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

      W. Harry Sefton and George D. Yeomans 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 ex rel. The Buffalo Union Furnace Company, Appellant and Respondent, v. John F. Gilchrist et al., Constituting the State Tax Commission, Respondents and Appellants.
    (Argued June 3, 1926;
    decided July 9, 1926.)

      Tax —franchise tax — lease by corporation of plant and retirement from, business — franchise tax on original capitalization and upon amount of subsequent stock dividend properly annulled.

      People ex rel. Buffalo Union Furnace Co. v. Gilchrist, 215 App. Div. 48, affirmed.
    Cross-appeals from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 11, 1926, annulling on certiorari a franchise tax assessed against the relator for the year 1923, and determining and restating the tax at the minimum provided for in section 182 of the Tax Law. The Tax Commission appeals from the whole of said order and the relator from so much thereof as holds that it was exercising its corporate franchise and was hable for any tax whatever for the year 1923. Relator, a domestic stock corporation, leased its plant for a term of years and retired from business. In-1922, in addition to its regular dividend, it declared a stock dividend of $4,000,000 and issued the necessary additional capital stock. Upon these facts, the Tax Commission assessed a tax of $116,500, being 112% mills on each dollar of the original capitalization of $1,000,000, amounting to $112,500, and 1 mill on each dollar of the additional stock of $4,000,000, amounting to $4,000. The relator contested the validity of the tax, on the ground that it was neither employing capital stock nor exercising its corporate franchise and that the increase of its capital stock was merely the capitalization of a surplus accumulated and added to its working capital.

      Ralph Ulsh and John Lord O’Brien for relator, appellant and respondent.

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

      Order affirmed, without costs;
   no opinion.

Concur: Hiscock, Ch. J., Pound, McLaughlin, Andrews and Lehman, JJ. Cardozo and Crane, JJ., vote to reverse order of Appellate Division and confirm determination of State Tax Commission except in so far as said determination includes stock dividends in the computation of the tax.


text:
    Barney Kleiman, Respondent, v. Clean Wash Paint and Varnish Remover Company, Inc., et al., Appellants.
    (Argued June 3, 1926;
    decided July 9, 1926.)

      Fraud — false representations — action to recover amount paid for sales rights of worthless product.

      Kleiman v. Clean Wash Paint & Varnish Remover Co., Inc., 215 App. Div. 752, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 11, 1925, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for fraud and false representations whereby it was alleged plaintiff was induced to purchase the sales rights for the State of Pennsylvania of a paint remover, the product of defendant corporation, which paint remover was worthless and unsalable.
    Judgment affirmed, with costs;

      Charles A, Hitchcock for appellants.

      Charles B. Bechtold, and Joshua Egelson for respondent.
   no opinion.

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

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


text:
    The People of the State of New York, Respondent, v. William W. Hoyer, Appellant.
    (Argued June 4, 1926;
    decided July 9, 1926.)

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

    Appeal from a judgment of the Court of General Sessions of the Peace in the county of New York, rendered October 27, 1925, upon a verdict convicting the defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      Leo H. Klugherz, Leonard A. Snitkin and Jacob Lasker 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. John Garguila, Appellant.
    (Argued June 4, 1926;
    decided July 9, 1926.)

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

    Appeal from a judgment of the Court of General Sessions of the Peace in the county of New York, rendered December 10, 1925, upon a verdict convicting defendant of the crime of murder in the first degree.
    Judgment of conviction affirmed;

      Abraham Wilson and Edward M. Bernstein 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:
    Ralph G. Albrecht, as Ancillary Administrator of the Estate of Maurice C. Mansfield, Respondent, v. The Robert Dollar Company, Appellant, Impleaded with Others.
    (Argued June 4, 1926;
    decided July 9, 1926.)

      Contract — services — action to recover share of earnings of a syndicate which plaintiff’s intestate had been instrumental in forming and in the work of which he had assisted.

      Albrecht v. Dollar Co., 216 App. Div. 701, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 16, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was brought to recover intestate’s share in certain funds collected by defendant as assignee of the interests of a syndicate formed for the purpose of entering into a contract with the Russian government for the manufacture and deliverance of shrapnel shells. For organizing and assisting in the work of the syndicate, it had been specified that intestate was to receive the sum of five cents per shell.
    Judgment affirmed, with costs;

      Frederic E. Mygatt, Roger B. Siddall and John M. Woolsey for appellant.

      Amos J. Peaslee and A. Lewis Spitzer for respondent.
   no opinion.

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

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


text:
    In the Matter of the Application of the City of New York, Respondent. New York and Harlem Railroad Company et al., Appellants; Transit Commission of the State of New York, Respondent. (East 238th Street Crossing.)
    (Argued June 4, 1926;
    decided July 9, 1926.)

      Railroads — New York city — carry street across tracks.

      Matter of City of New York (East 238th St.), 215 App. Div. 152, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 15, 1926, which unanimously affirmed a determination of the Transit Commission directing that East Two Hundred and Thirty-eighth street in the borough of The Bronx, city of New York, be carried accross the Bronx River valley upon a viaduct in accordance with plans and specifications previously approved and that appellant railroad companies construct so much of said bridge as was above their respective rights of way running through said valley, and also the approach at the eastern end of said bridge, the companies being held responsible only for one-half of the cost of such construction, as provided by section 94 of the Railroad Law. (See 224 N. Y. 708; 238 N. Y. 122.)
    Order affirmed, with costs;

      Isaac N. Mills, Alexander S. Lyman and Charles M. Sheafe, Jr., for appellants.

      Carleton S. Cooke and Louis W. Stotesbury for Transit Commission, respondent.

      George P. Nicholson, Corporation Counsel (Vincent Victory of counsel), for city of New York, respondent.
   no opinion.

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

Dissenting: Cardozo and Andrews, JJ. Not voting: His cock, Ch. J.


text:
    Real Estate Finance Corporation, Respondent, v. Alice K. Johnson, Appellant, Impleaded with Another.
    (Submitted June 4, 1926;
    decided July 9, 1926.)

      Bills, notes and checks — usury — action to recover upon promissory note — defense of usury — reasonable charge for services in financing building project.

      Beal Estate Finance Corp. v. Johnson, 215 App. Div. 769, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 9, 1926, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover upon a promissory note. The defense was usury, the answer alleging that the note in suit was a renewal note in place of a note for $10,000 given upon an usurious agreement whereby the plaintiff exacted and took $800, in addition to legal interest, for the use of the money for a period of seventy-five days. The trial court held that the parties intended the $800 to be a payment for services in financing a building project in which plaintiff was interested and that the amount was a reasonable charge for the work done.

      Judgment affirmed, with costs;

      C. Bertram Plante and Harry Edwards for appellant.

      Tracy S. Voorhees and Edward I. Devlin, Jr., for respondent.
   no opinion.

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


text:
    In the Matter of the Claim of Louis Florick, Respondent, against Broad Window Cleaning Company et al., Appellants. State Industrial Board, Respondent.
    (Argued June 4, 1926;
    decided July 9, 1926.)

      Workmen’s compensation — master and servant ■— injury from fall — award for facial disfigurement.

      Florick v. Broad Window Cleaning Co., 215 App. Div. 734, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 16, 1925, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, a window cleaner, was injured by a fall from a ladder in the course of his employment, resulting in a scar on his forehead. An award was made for facial disfigurement though his earning capacity was unimpaired.
    Order affirmed, with costs;

      Paul Koch and Charles 0. Truex for appellants.

      Albert Ottinger, Attorney-General (E. C. Aiken of counsel), for respondent.
   no opinion.

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


text:
    In the Matter of the Claim of Sara Tannenbaum, Respondent, against Perfect Tailoring Company et al., Appellants. State Industrial Board, Respondent.
    (Submitted June 4, 1926;
    decided July 9, 1926.)

      Workmen’s compensation — master and servant — death of salesman from fall in restaurant.

      Tannenbaum v. Perfect Tailoring Co., 215 App. Div. 741, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 15, 1925, unanimously affirming an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant, a salesman, in the course of his employment entered a restaurant to interview prospective customers and to eat lunch. When leaving he slipped on the floor and fell, receiving injuries resulting in his death.
    Order affirmed, with costs;

      Paul Koch and Charles O. Truex for appellants.

      William A. Hyman and Ralph F. Kane for claimant, respondent.

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

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


text:
    In the Matter of the Controversy between E. J. Conrad Corporation, Appellant, and 161 Madison Avenue, Inc., Respondent.
    (Submitted June 8, 1926;
    decided July 9, 1926.)

      Vendor and purchase---sale of leasehold — apportionment of rents.

      Conrad Corp. v. 161 Madison Ave., Inc., 216 App. Div. 97/affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 13, 1926, in favor of defendant upon the submission of a controversy under section 546 of the Civil Practice Act. The question was as to the apportionment, as of the date of closing under a written contract between the parties, for the purchase and sale of a leasehold, of the rent due under the lease for the month in which the closing was had. The contract provided: “At the time of closing the following are to be apportioned: Rents and other payments required to be made by the tenant pursuant to the terms of the lease.” The closing took place as of September seventeenth. The lease required a payment of $2,000 for the month of September, but larger payments for subsequent months, the yearly rental being $36,000. The purchaser tendered and paid .a sum for thirteen days’ occupancy at the rate of September rental. The seller claimed to be entitled to an amount based upon the yearly rental.
    Judgment affirmed, with costs;

      Avel B. Silverman for appellant.

      William M. Silverman for respondent.
   no opinion.

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


text:
    Schuyler Hamilton, Appellant, v. George W. Baker et al., as Trustees of Union Free School District No. 2 of the Towns of Cortlandt and Yorktown, Westchester County, Respondents.
    (Argued June 8, 1926;
    decided July 9, 1926.)

      Taxpayer’s action — schools — action to restrain trustees of school district from issuing bonds for erection of school building.

      Hamilton v. Baker, 215 App. Div. 786, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 26, 1925, which affirmed a judgment in favor of plaintiff entered upon an order of Special Term granting a motion for dismissal of the complaint in a taxpayer’s action to restrain the defendants from issuing bonds or incurring obligation or expense for the construction of a new school building.
    Judgment affirmed, with costs;

      Charles Wesley and Edgar L. Ryder for appellant.

      Alvin M. Higgins and Edgar A. B. Spencer for respondents.
   no opinion.

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


text:
    M. Inez Woods, Appellant, v. Mathew Micolino, Respondent.
    (Argued June 8, 1926;
    decided July 9, 1926.)

      Conversion — action to recover for alleged conversion of stock — defense that stock waS' given in payment of money embezzled.

      Woods v. Micolino, 215 App. Div. 785, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 27, 1926, unanimously affirming a judgment in favor of defendant entered upon a verdict. The action was to recover for the alleged conversion of certain shares of stock. The defense was that the stock had been turned over to defendant in partial payment of money embezzled from defendant and his family by plaintiff’s assignor.
    Judgment affirmed, with costs;

      Eugene L. Bondy for appellant.

      I. Maurice Wormser and Henry S. Mansfield for respondent.
   no opinion.

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


text:
    Charles Stravinsky, Respondent, v. Ellerman Wilson Line, Ltd., Defendant, and John T. Clark & Sons, Inc., Appellant.
    (Argued June 8, 1926;
    decided July 9, 1926.)

      Negligence — jurisdiction — action by longshoreman to recover for injury received while discharging cargo from steamer at wharf in Hoboken — defense that Workmen’s Compensation Law is exclusive remedy properly stricken out.

      Stravinsky v. Ellerman Wilson Line, Ltd., 216 App. Div. 796, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 16, 1926, which affirmed an order of Special Term striking from the answer an affirmative defense. The action was brought to recover damages for personal injuries sustained by the plaintiff, an employee of the defendant John T. Clark & Sons, Inc., while engaged as longshoreman in loading and discharging cargo upon and from the steamship Marengo, lying at Hoboken, in the State of New Jersey. The answer pleaded as a defense that the Workmen’s Compensation Law of the State of New Jersey governed the case and provided an exclusive remedy. The following question was certified: “ Is the defense consisting of new matter contained in the answer of the defendant, John T. Clark & Sons, Inc., sufficient in law upon the face thereof? ”
    Order affirmed, with costs;' question certified answered in the negative;

      Theodore H. Lord and James B. Henney for appellant.

      Harold R. Medina for respondent.
   no opinion.

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


text:
    Ernest Jobman, Respondent, v. T. Hogan & Sons, Inc., Appellant.
    (Argued June 8, 1926;
    decided July 9, 1926.)
    Negligence— action, to recover for injury to workman on steamer through swinging of hatch beam while being hoisted.

      Jobman v. Hogan & Sons, Inc., 216 App. Div. 736, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 3, 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 was employed in overseeing carpenter work on board a steamship. Defendant was a stevedore company. Its workmen were uncovering the hatches, in the course of which they used an up and down fall to remove the hatch beams. In lifting one of these large beams by the fall, it swung around and struck the door of a companionway, justas the plaintiff was about to pass through, slamming the door closed and catching his foot in the door, causing the injury complained of.
    Judgment affirmed, with costs;

      Eli J. Blair for appellant.

      Theodore H. Lord for respondent.
   no opinion.

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


text:
    In the Matter of the Transfer Tax upon the Estate of Edna Wilson, Deceased. State Tax Commission, Appellant and Respondent; G. Searing Wilson et al., as Executors, et al., Respondents and Appellants.
    (Argued June 9, 1926;
    decided July 9, 1926.)

      Tax — transfer tax on property of non-resident decedent located in this State — deduction for funeral and administration expenses — real property prorated to payment of general legacies.

      Matter of Wilson, 216 App. Div. 202, affirmed.
    Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 15, 1926, which affirmed an order of the New York County Surrogate’s Court assessing a transfer tax upon the estate of Edna Wilson, a non-resident, deceased. The appeal of the State Tax Commission is upon the ground that said order of the Surrogate’s Court erroneously fixes the amount of the transfer tax under article 10 of the Tax Law for the reason that the provisions of section 221-c of said article, as added by chapter 432 of the Laws of 1922 and in effect on the date of the transfer, have been improperly construed and applied, in that deductions for debts and funeral and administration expenses were made from the real property included in the estate, whereas such deductions should have been made from personal property only. The executors and legatees have appealed on the ground that the real estate situated in the State of New York was erroneously prorated to the payment of the general legatees instead of being taxed to the residuary legatees.
    Order affirmed, without costs to either party;

      Seth T. Cole and Charles A. Curtin for State Tax Commission, appellant and respondent.

      Harry Baer for executors and legatees, respondents and appellants.
   no opinion.

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


text:
    Eleanor W. Rainke, Respondent, v. George A. Colgan, Jr., Appellant.
    (Argued June 9, 1926;
    decided July 9, 1926.)

      Negligence — motor vehicles — guest riding in automobile injured through negligence of driver.

      Rainke v. Colgan, 216 App. Div. 820, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 27, 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. The complaint alleged that while plaintiff was riding as a guest in defendant’s automobile then being operated by defendant in the borough of Manhattan, in the vicinity of Harlem River Speedway and near Highbridge, defendant so carelessly and negligently conducted the management and operation of said automobile that it was caused or permitted to descend a steep flight of stone steps causing the injury complained of.
    Judgment affirmed, with costs;

      Alfred M.. Bailey and Frank J. O’Neill for appellant.|

      Charles B. Law and Frederick S. Martyn for respondent.
   no opinion.

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


text:
    Lukasz Lukawski, Respondent; v. James Devlin, Appellant.
    (Submitted June 9, 1926;
    decided July 9, 1926.)

      Contract — Statute of Frauds — specific performance — vendor and purchaser — sufficiency of memorandum of contract for sale of real property.

      Lukawski v. Devlin, 214 App. Div. 734, affirmed.
    Appeal from a judgment entered July 2, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff. The action was brought for the specific performance of the following alleged contract to sell real property:
    “ Staten Island,

      “May 16th, 1923.

      “ Received from Lukasz Lukawski, the sum of $100.00 (One Hundred Dollars) in part payment of $3,500.00 (Thirty-five Hundred Dollars), on House, No. 35-37 John Street, Port Richmond, S. I., the balance to be paid in 60 days. JAMES DEVLIN,
    “ Tel. P. R. 332-M.”

      The defense was that the memorandum was insufficient under the Statute of Frauds. The Appellate Division held that it satisfied all the requirements of the statute.
    Judgment affirmed, with costs;

      William C. Casey, Jr., for appellant.

      Max Levy 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. Louis M. Kardos, Appellant.
    (Argued June 2, 1926;
    decided July 9, 1926.)

      Crimes — stockbroker trading for Ms own account against order of customer■ — sufficiency of evidence to warrant conviction.

      People v. Kardos, 215 App. Div. 710, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 27, 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 of the crime of feloniously trading as a broker against the order of a customer.

      Philip C. Samuels and Max Lazarus for appellant.

      Joab H. Banton, District Attorney (Felix C.Benvenga and William B. Moore of counsel), for respondent.
   Per Curiam.

The elements of proof that are lacking in People v. Ruskay (243 N. Y. 58) are present in this case. The defendant having purchased stock for his customer, on the same day sold for his own account, the same kind of stock with intent to trade against the customer’s order. The evidence is conclusive that fifty shares were purchased for the customer and fifty shares sold for the house account. The question of intent and purpose appeared from other similar transactions under such circumstances as to make a fair question for the jury, of the defendant’s intent and purpose, in selling these fifty shares so soon after the purchase for his customer. While the defendant may not have had personal knowledge of the transaction, his employees testified that he had given instructions to keep the purchases and sales even, which meant to buy and sell against customers’ orders without authority and in the name of the house. The law is one thing; the evidence to prove its violation is another. The law is the same for the Buskay case as for this. The evidence to prove the violation that was lacking in the Buskay case is amply furnished here.

The judgment should be affirmed.

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

Judgment affirmed.


author: Pee Curiam.

text:
    Catherine Gray, as Administratrix of the Estate of Edward Gray, Deceased, Appellant, v. H. H. Vought & Company et al., Respondents.
    (Argued June 8, 1926;
    decided July 9, 1926.)

      Appeal — questions certified — appeal dismissed when it appears that reversal by Appellate Division was, among other grounds, on one that Court of Appeals cannot consider.

    1. An appeal upon questions certified by the Appellate Division will not be considered by the Court of Appeals unless the answers to such questions will be decisive of the correctness of the order or judgment appealed from.
    2. Where, therefore, questions have been certified involving the power of the court to permit amendments to the summons and complaint bringing in additional parties, but it appears that the order of the Special Term was reversed and the motion to amend denied on the ground that plaintiff had been guilty of laches in making her motion as well as on other grounds, which question of laches has not been certified to and cannot, in any event;-be considered by the Court of Appeals, the appeal will be dismissed.

      Cray v. Vought & Co., 216 App. Div. 230, appeal dismissed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 19, 1926, which reversed an order of Special Term granting a motion to amend the summons and complaint and denied said motion. The following questions were certified; “ (1) Did the court at Special Term have power to grant the plaintiff’s motion to amend the summons and complaint by adding thereto the names of the partners of H. H. Vought & Company with appropriate allegations of their partnership? (2) Did the appearance of H. H. Vought & Company by attorney in the action authorize the court to permit the plaintiff to amend the complaint by inserting the names of the partners of H. H. Vought & Company with appropriate allegations of their partnership notwithstanding the allegation in the complaint that the defendant is a corporation after denial by defendant that it is a corporation? (3) Did the verification of the answer by one of the partners of H. H. Vought & Company in which it is stated that the defendant is a partnership and the service of said answer constitute an appearance in the action by the partnership ? ’ ’
    William J. Hogan, Leonard F. Fish and Thomas J. O’ Neill for appellant.

      Theodore H. Lord and Grattan B. Shults for respondents.
   Pee Curiam.

We do not consider an appeal upon questions certified to us by the Appellate Division unless the answers to such questions will be decisive of the correctness of the order or judgment appealed from. On this appeal questions have been certified to us involving the power of the court to make the amendments requested by the plaintiff but it appears by the opinion of the Appellate Division that the order of the Special Term was reversed and the motion for amendment denied on the ground that plaintiff had been guilty of laches in making her motion as well .as upon other grounds. This question of laches of course has not been certified to us for consideration and could not be considered if it had been. The result, therefore, will be that no matter what our answers may be to the questions certified the respondents will be entitled to have the order in their favor stand on a ground which we cannot consider.

The appeal, therefore, should be dismissed, with costs.

Hiscock, Ch. J., Pound, McLaughlin, Andrews and Lehman, JJ., concur; Cardozo and Crane, JJ., dissent and vote to reverse.

Appeal dismissed.


text:
    Fred Christensen, Respondent, v. Morse Dry Dock and Repair Company, Appellant.
    (Argued June 2, 1926;
    decided July 9, 1926.)

      Appeal — stipulation for judgment absolute, on appeal from order reversing and granting new trial must be unqualified.

    A stipulation for judgment absolute, on appeal to the Court of Appeals from an order of the Appellate Division reversing a judgment and granting a new trial, may not be qualified so as to be without prejudice to the right of appellant to appeal from a judgment of affirmance to the Supreme Court of the United States.

      Christensen v. Morse Dry Dock & Repair Co., 216 App. Div. 274, appeal dismissed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 19, 1926, reversing a judgment in favor of defendant entered upon a decision of the court at a Trial Term without a jury and granting a new trial.

      Harrington Putnam and Cortland Palmer for appellant.

      James C. Van Siclen, James A. Gray and William S. Butler for respondent.
   Per Curiam.

The stipulation for judgment absolute herein filed is made subject to the qualification that it is “ without prejudice to the right of the defendant, appellant, to appeal from said affirmance to the Supreme Court of the United States,” etc. The stipulation for judgment absolute (N. Y. Const, art. 6, § 7; Civ. Prac. Act, § 588, subd. 2) which must be filed to give this court jurisdiction on an appeal from an order granting a new trial is in effect a stipulation for judgment by consent in case of affirmance and should, therefore, be unqualified. This court may not dispense with the constitutional limitation on the right of appeal.

The appeal should be dismissed, with costs.

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

Appeal dismissed.


text:
    The People of the State of New York, Respondent, v. David De Maio, Appellant.
    (Argued May 26, 1926;
    decided July 9, 1926.)

      Crimes —• murder in first degree — trial — evidence —• erroneous charge and erroneous' interference of court with examination by counsel disregarded in view of convincing evidence of guilt.

    A trial judge may properly interrupt at times to clear up obscure points, but subject to the applicable rules of evidence counsel ordinarily ought to have a fair opportunity to examine in his own way the client or witness whom he has placed upon the stand. It is the province of cross-examination to correct any omissions of which counsel may be guilty in bringing out the facts or to test the accuracy of the witness. Possible errors will be disregarded, however, where the evidence of defendant’s guilt is so convincing that it is certain that the result of the trial was not changed by them.
    Appeal from a judgment of the Supreme Court rendered November 27, 1925, at a Trial Term for the county of Westchester upon a verdict convicting the defendant of the crime of murder in the first degree.

      Theodore H. Lord and William L. Moran for appellant.

      Arthur Rowland, District Attorney, for respondent.
   Per Curiam.

The trial justice committed error in part of his charge relating to corroborative evidence. Claim- has also been made that by constant interruptions he unduly interfered with the direct examination by defendant’s counsel of his client. The trial judge may properly interrupt at times to clear up obscure points but subject to the applicable rules of evidence counsel ordinarily ought to have a fair opportunity to examine in his own way the client or witness whom he has placed upon the stand. It is the province of cross-examination to correct any omissions of which counsel may be guilty in bringing out the facts or to test the accuracy of the witness. If the case were at all close these contentions would require careful consideration. The evidence of defendant’s guilt, however, is so convincing that we fed certain that the result of the trial was not changed by them and, therefore, we disregard them.

The judgment of conviction should, therefore, be affirmed.

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

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Charles N. Lebauer, Appellant.
    (Argued June 2, 1926;
    decided July 9, 1926.)

      Crimes — evidence — issuing false financial statement — insufficient proof of correctness of statement.

    Upon trial of an indictment charging defendant with issuing a false financial statement in violation of section 1293-b of the Penal Law, a statement, apparently prepared by a former employee of defendant at the request of the trustee in bankruptcy, is incompetent as evidence where such former employee is not called as a witness and it nowhere appears how he prepared the statement; what information he had in regard thereto; to what books of the defendant he had access and how correctly it was made.

      People v. Lebauer, 216 App. Div. 714, reversed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 26, 1926, which affirmed a judgment of the Court of Special Sessions of the city of New York convicting the defendant of the crime of issuing a false financial statement in violation of section 1293-b of the Penal Law.

      Joseph Shalleck for appellant.

      Joab H. Banton, District Attorney (William B. Moore of counsel), for respondent.
   Per Curiam.

This judgment must be reversed. The defendant was convicted under section 1293-b of the Penal Law. Proof of the falsity of the financial statement made by him rests entirely upon two exhibits received in evidence over his objection and exception. Exhibit 1 is a loose leaf ledger of the defendant reconstructed by his trustee in bankruptcy by means of exhibit 6. Its accuracy depends ultimately on the accuracy and competency of this last exhibit. This seems to be conceded. Exhibit 6 is a statement apparently prepared by one Richmond at the request of the trustee. He had at one time been in defendant’s employ but at this date was so no longer. Richmond was not called as a witness. How he prepared the statement; what information he had in regard thereto; to what books of the defendant he had access and how correctly it was made nowhere appears. Clearly unconnected as it is in any way with the defendant this statement was incompetent. With it out of the case there is no evidence whatever that the financial report made by the defendant was untrue.

The judgments of the courts below should be reversed and a new trial granted.

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

Judgments reversed, etc.


text:
    Yone Suzuki et al., Copartners under the Name of Suzuki & Company, Respondents, v. Frederick B. Small, as President of the American Express Company, Appellant.
    (Argued June 2, 1926;
    decided September 28, 1926.)

      Conversion — carriers — action to recover for conversion of steel plates, mistaken by defendant for some missing from another consignment, and shipped to third party.

      Suzuki v. Small, 214 App. Div. 541, affirmed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 9, 1925, unanimously affirming a judgment.in favor of plaintiffs entered upon a verdict directed by the court. The action was to recover for the alleged conversion of steel plates. Plaintiff had purchased the steel and had it shipped to Seattle destined for Japan. While in storage in the railroad yards defendant’s agent, mistaking the steel for some missing from another consignment, caused it to be reloaded and shipped as part of said consignment to a third party, whereby it was lost to plaintiff.

      Judgment affirmed, with costs;

      John G. Milburn, Jr., for appellant.

      John W. Crandall and Leavitt J. Hunt for respondents.
   no opinion.

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


text:
    In the Matter of Theodorus Bailey, Respondent, v. Robbins S. Rutherford, Appellant.
    (Submitted September 27, 1926;
    decided September 28, 1926.)
   Motion to amend remittitur denied, without costs. (See 242 N. Y. 220, 570.)


text:
    In the Matter of the Application of Buck, Kiaer & Co., Inc., Respondent, for an Order of Arbitration against Wm. Hartmann & Co., Inc., Appellant.
    (Argued June 7, 1926;
    decided October 5, 1926.)

      Arbitration — contract of sale — order directing arbitration modified by striking out portion appointing arbitrator and reference to samples and by providing that arbitration proceed before arbitrators appointed in accordance with contract.

      Matter of Buck, Kiaer & Co., Inc., v. Hartmann & Co., Inc., 216 App. Div. 751, modified.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 31, 1926, which modified and affirmed as modified an order of Special Term directing arbitration and appointing an arbitrator to hear and determine certain disputes arising under a contract of sale of wood pulp which provided that disputes as to quality should be settled by arbitrators, one to' be appointed by each party and they to select an umpire.
    Order of Appellate Division modified by striking out that portion thereof appointing Alexander Rose arbitrator to hear and determine the matters and things set forth under the letters “ A,” “ B,” “ C ” and “ D ” in the notice of motion herein and by striking out the reference made in said items “ A,” “ B ” and “ C ” to samples submitted by Wm. Hartmann & Co., Inc., prior to the making of the contract referred to in the petition, and by providing that the arbitrators appointed by the parties proceed to determine the matters and things set forth under letters “ A,” “ B,” “ C ” and “ D ” in the said notice of motion as so modified, appointing an umpire before proceeding with the hearing, and as so modified affirmed, without costs to either party;

      James W. Mack and J. Schnebel for appellant.

      Joseph Lorenz and Junius M. Horner for respondent.
   no opinion.

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


text:
    Louis Weingast, Appellant, v. Rialto Pastry Shop, Inc., et al., Respondents.
    (Submitted September 27, 1926;
    decided October 6, 1926.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 113.)


text:
    Bernhard Voss, Appellant, v. W. J. Martin Coal Company et al., Respondents. (Two cases.)
    (Submitted September 27, 1926;
    decided October 5, 1926.)
    Motion for reargument denied, without costs.
   Motions to amend remittiturs granted. Return of remittitur requested and when returned, remittitur will be amended by striking therefrom the provision “ with costs to the respondents ” and substituting the provision “ without costs to either party.” (See" 243 N. Y. 545.)


text:
    Bottlers Seal Company, Suing on Behalf of Itself and Other Creditors of Tear Off Bottle Seal Company, Respondent, v. Roy A. Rainey et al., Appellants.
    (Submitted September 27, 1926;
    decided October 5, 1926.)
   Motion to amend remittitur in regard to costs denied. Otherwise granted, without costs. Return of remittitur requested and when returned will be amended so as to answer the fifth question certified in the affirmative and change the number of the question referred to in the last paragraph but one of the opinion from fifth ” to “ second.” (See 243 N. Y. 333.)


text:
    In the Matter of the Will of Thomas H. Chittick, Deceased. Margaret C. Johnson, Appellant; G. Arthur Heermans, as Executor, et al., Respondents.
    (Submitted September 27, 1926;
    decided October 5, 1926.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 304.)


text:
    John Anderson, Appellant, v. John L. Hayes Construction Company, Inc., et al., Appellants, and the People of the State of New York, Respondent.
    (Submitted September 27, 1926;
    decided October 5, 1926.)
   Motion to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 140.)


text:
    Williamsburgh Savings Bank, Appellant, v. State of New York, Respondent.
    (Submitted September 27, 1926;
    decided October 5, 1926.)
    Motion to amend remittitur. (See 243 N. Y. 231.)
   Per Curiam.

The motion is denied, without costs. The decision and remittitur direct judgment “ in favor of claimant for the amount of its claim including interest upon the amount paid upon the sale represented by the tax certificate,” etc. Claimant's claim both as set forth in its written complaint or statement and in the findings of the Court of Claims includes and specifies the interest which the claimant desires to have specified in the remittitur. Therefore, when judgment is directed for the amount of claimant’s claim it includes these items of interest and an amendment of the remittitur by further mentioning them is unnecessary. The interest upon the tax certificate was not specified in the claim and, therefore, it was properly specified in the decision and remittitur.


text:
    Roosevelt Memorial Association of Oyster Bay, Inc., Respondent, v. Charles H. Jones et al., Individually and as Executors of Mary E. Jones, Deceased, Appellants, and Arthur E. Jones et al., Respondents.
    (Argued September 27, 1926;
    decided October 5, 1926.)

      Appeal — motion to dismiss appeal denied.

    Reported beiow, 216 App. Div. 760.
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 12, 1926, which affirmed an order of Special Term- confirming the report of commissioners in condemnation proceedings.
    The motion was made upon the ground that the Court of Appeals was without jurisdiction to entertain the appeal.

      Bolland Miles for motion.

      David C. Bennett opposed.
   Motion denied, without costs, and appellant allowed to file stipulation nunc pro tunc.


text:
    Charles Sirota, Appellant, v. Joseph Shacknovitz et al., Respondents, Impleaded with Another.
    (Argued September 27, 1926;
    decided October 5, 1926.)

      Appeal — motion to withdraw appeal granted.

      Sirota v. Shacknovitz, 212 App. Div. 884, appeal withdrawn.
    Motion to withdraw an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 18, 1925, 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 interests of the appellant would be best served by withdrawal of the appeal.

      A. B. Reed for motion.

      S. R. WachUll opposed.
   Motion granted on payment of costs of appeal and ten dollars costs of motion.


text:
    In the Matter of Proving the Will of Sarah A. Delmar, Deceased. Henry F. Barnes et al., Appellants; The National City Bank of New York et al., Respondents.
    (Submitted September 27, 1926;
    decided October 5, 1926.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 243 N. Y. 7.)


author: Pee Ctjexam.

text:
    The People of the State of New York, Respondent, v. Thomas Bord, Appellant.
    (Argued October 5, 1926;
    decided October 12, 1926.)

      Crimes — incest — intermarriage within prohibited degree — crime complete on intermarriage — proof of carnal knowledge unnecessary — where same offense is felony or misdemeanor under different statutes prosecution may be had for either.

    1. Under section 1110 of the Penal Law declaring intermarriage between persons related within the prohibited degree to be incest, the offense becomes complete • upon intermarriage and to sustain a conviction it is not necessary to establish carnal knowledge. •
    2. Subdivision 3 of section 5 of the Domestic Relations Law (Cons. Laws, ch. 14) making the parties to an incestuous marriage punishable for a minor offense merely creates another crime. It cannot be said to be exclusive and prosecution may be for either the felony or the misdemeanor.

      People v. Bord, 217 App. Div. 721, affirmed.
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 17, 1926, which affirmed a judgment of the Onondaga County Court, rendered upon a verdict convicting the defendant of the crime of incest.

      Charles D. O’Brien and Thomas J. Lowery for appellant.

      Clarence Unckless, District Attorney ("William C. Martin of counsel), for respondent.
   Pee Ctjexam.

Under a statute which declares intermarriage between persons related within the prohibited degrees to be incest it has been held that the offense becomes complete upon intermarriage and that to sustain a conviction it is not necessary to establish carnal knowledge. Such statutes are common. “ It is entirely competent for the Legislature, upon declaring an act to be a crime, to designate it by any term that may be chosen for that purpose.” Intermarriage is the act of marrying. (State v. Schaunhurst, 34 Iowa, 547; Hintz v. State, 58 Wis. 493.)

The provision in the Domestic Relations Law, § 5, subd. 3 (Cons. Laws, ch. 14) making the parties to an incestuous marriage punishable for a minor offense merely creates another crime, applicable to marriages where there is no incestuous connection. It cannot be said to be exclusive without changing the meaning of the word intermarry ” in Penal Law, section 1110, as defined above.

The district attorney may prosecute for the felony or for the misdemeanor as he chooses. The elements of the crime are the same.

The judgment should be affirmed.

Hiscock, Ch. J., Caedozo, Pound, McLaughlin, Cbane, Andeews and Lehman, JJ., concur.

Judgment affirmed.


text:
    The People of the State of New York ex rel. George S. Abell, Respondent, v. John H. Clarkson et al., Composing the Board of Trustees of the Village of Cornwall, Respondents. John E. Preston et al., Intervenors, Appellants.
    (Argued September 27, 1926;
    decided October 12, 1926.)

      Practice — jurisdiction — power of Supreme Court to set aside order of discontinuance and restore certiorari proceeding.

      People ex rel. Abell v. Clarkson, 217 App. Div. 746, affirmed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 1, 1926, which affirmed an order of Special Term denying a motion to vacate a prior order vacating an order of discontinuance and restoring and reinstating the above-entitled certiorari proceeding.
    The following question, among others which have become immaterial, was certified:

      “ First. Had the Supreme Court power to grant the order of July 24, 1925, reviving this certiorari proceeding? ”

    Order affirmed, with costs; first question certified answered in the affirmative, other questions not answered;

      Henry Hunter and Henry Kohl for appellants.

      Henry Hirschberg and Milton De Baun for respondents.
   no opinion.

Concur: His cock, Ch. J., Cabdozo, Pound, McLaugh- ■ lin, Crane and Andrews, JJ. Absent: Lehman, J.


text:
    In the Matter of Lancelot M. Berkeley, an Attorney, Appellant. New York County Lawyers Association, Respondent.
    (Argued September 27, 1926;
    decided October 12, 1926.)

      Attorneys — disbarment from practice.

      Matter of Berkeley, 174 App. Div. 205, affirmed.
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 20, 1916, which disbarred the appellant herein from practice as an attorney and counselor at law in the State of New York.
    Order affirmed, without costs;

      Lancelot M. Berkeley, appellant in person.

      Richard H. Clarke and George R. Adams for respondent.
   no opinion.

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