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    Adolph Leibowitz et al., Copartners under the Firm Name of Leibowitz Bros., Appellants, v. Bickford’s Lunch System, Respondent, and County Holding Company, Respondent and Appellant.
    Landlord and tenant — lease — option — lease of premises with option for renewal — sublease with similar option — consent of landlord to sublease for definite term with no reference or consent to transfer of option — payment of rent by sublessee direct to landlord — sublessee not entitled as against landlord to extension of its sublease or possession of leased premises after expiration of its term — receipt of rent due does not constitute waiver or estoppel — lessee entitled to extension of its lease but may not use same, without consent of landlord, to keep sublessee in possession — jurisdiction of court in action by sublessee for declaratory judgment to determine rights between lessor and lessee —■ failure to ask for other relief — when court will not send case back for complete adjudication of all the rights of the parties.
    1. Where the lessee of premises, holding under a lease for a term of years, with an option for another term, which contained clauses to the effect that the lessee would not assign or underlet the premises without the written consent of the lessor, sublet the premises for a term one day less than the original, the sublease containing a clause purporting to give to the sublessees the right of extension, but agreements executed between the parties, in recognition of the necessity of consent by the original lessor to a sublease, all referred to and were predicated upon a sublease for a definite period and contained no reference or consent to a transfer of the option possessed by the original lessee, and expressly provided that no assignment and no further subletting of said premises should be made except upon consent, the sublessee and its successors are not entitled, as against the original lessor, to an extension of its sublease or of its possession of the leased premises after the expiration of its term.
    2. A contention that the lessor by receipt of rent from the sublessee during the original term created by the lease, with knowledge of the provision in the sublease for an extension, has waived the right to object to a renewal of the sublease and to refuse a renewal of the principal lease, cannot be sustained. The sublessees, to obtain the consent of the lessor to its lease, executed covenants and promises of guaranty of performance by the original lessee of its obligations which included payment of rent, and subsequently, apparently by arrangement of all parties to avoid unnecessary trouble, the sublessees paid directly to the original lessor, thus saving a double operation of payment. The latter, however, received no rents except those to which it was entitled under the sublease of the specific estate and term to which alone it had consented and is not thereby prevented from refusing consent to an extension of that term to which it has never consented and to which the rents which it is receiving are in no manner attributable. (Collins v. Hasbrouck, 56 N. Y. 157, 162, distinguished.)
    3. The successor to the original lessee, however, is entitled as tenant to an extension of the lease as provided in the original instrument, it having served the required notice upon the lessor. Its attempt to give to its sublessees an option for an extension does not now operate as a forfeiture of its rights. Should it attempt, however, to use its extension of the lease without the consent of its landlord for the purpose of maintaining the sublessees in possession of the premises, the landlord might be entitled to relief terminating its rights.
    4. A contention that the court did not have jurisdiction to adjudicate the respective rights of the landlord and successor lessee cannot be upheld. The action was brought by successors to the sublessees to obtain a declaratory judgment and a demand for judgment declaring the rights of the successor-lessee was not only contained in the plaintiff’s complaint but also in the answer of the defendant landlord. In addition, at the close of the trial, the trial justice without any objection on the part of the landlord took the view that the rights of all of the parties were before the court for determination. Under these circumstances the court was authorized to pass upon the rights of defendant lessee as against its co-defendant and to declare that it was entitled to an extension of the original term of the lease.
    5. Defendant lessee having given to its sublessee, the plaintiff, an express covenant to renew its lease and it being determined that plaintiff cannot have judgment for specific performance of that agreement, ordinarily a court of equity, having obtained jurisdiction of the parties and their controversy, would render to the injured party such relief as might be appropriate, and, where no evidence was presented on the trial which would furnish the basis of such relief, the court, on appeal, might send the ease back in order that this question might be passed on and a complete adjudication of all of the rights of the parties had. This, however, is a matter of discretion and will not be done where the parties themselves did not request the court to pass upon that aspect of the case.

      Leibowitz v. Bickford’s Lunch System, 213 App. Div. 874, affirmed.
    (Argued December 9, 1925;
    decided January 12, 1926.)
    Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 8, 1925, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

      Conrad Saxe Keyes for plaintiffs, appellants.
    The consent executed by the County Holding Company was sufficient to authorize an option for a renewal of the sublease. (Presby v. Benjamin, 169 N. Y. 377; Riggs v. Purcell, 66 N. Y. 193; Gillette Bros. v. Aristocrat Restaurant, 239 N. Y. 87; Fischer v. Ginzburg, 191 App. Div. 418; Storms v. Manhattan Ry. Co., 77 App. Div. 94; 178 N. Y. 493; Carter v. Hammett, 18 Barb. 608; Murray v. Harway, 56 N. Y. 337; Dakin v. Williams, 17 Wend. 447.) The benefit of the covenant to renew the original lease was an essential part of the principal lease, and was obligatory upon the landlord in the absence of some violation by the tenant or subtenant of the terms of the principal lease. (Wilkinson v. Pettit, 47 Barb. 230; Probst v. Rochester Steam Laundry Co., 171 N. Y. 584; Downing v. Jones, 11 Daly, 245; Piggo v. Mason, 1 Paige, 412.) The landlord has waiyed the right tq pbject to a renewal of the sublease and to refuse a renewal of the principal lease. (Collins v. Hasbrouck, 56 N. Y. 157; Murray v. Harway, 56 N. Y. 337; Conger v. Duryee, 90 N. Y. 594.) The judgment of the Appellate Division should have made definite disposition of the rights of the plaintiffs as against the Bickford’s Lunch System. (Polhemus Printing Co. v. Wynkoop, 30 App. Div. 524.)

      Charles L. Woody for County Holding Company, appellant and respondent.
    Samuel Shapiro, Michael Menaker and Adolph Leibowitz never acquired the right to a renewal under the sublease of May 15, 1919, nor have their assignees, Leibowitz Brothers. (Davis v. Morris, 36 N. Y. 569; Woodhull v. Rosenthal, 61 N. Y. 382; Stewart v. Long Island R. R. Co., 102 N. Y. 601.) The plaintiffs, Leibowitz Brothers, had no greater rights than their assignors Menaker, Shapiro- and Leibowitz had. (East 82d Street Corporation v. Rogers, 192 App. Div. 633; Collins v. Hasbrouck, 56 N. Y. 157; Barrington Apartment Assn. v. Watson, 38 Hun, 545.) There was no waiver. (McKenzie v. Harrison, 120 N. Y. 260.) Bickford’s Lunch System should not have been given any relief against its co-defendant, County Holding Company, as it did not demand any relief in its answer nor serve its answer on the County Holding Company. (Knickerbocker Trust Co. v. O., C. & R. S. R. Co., 188 N. Y. 38; Earle v. Earle, 73 App. Div. 300; 173 N. Y. 480; Weston v. Stoddard, 60 Hun, 290; Howard v. American Manufacturing Co., 162 N. Y. 347.)

      Joseph W. TJmans for Bickford’s Lunch System, respondent.
    The Bickford’s Lunch System is in all events entitled to a renewal of the principal lease. (Conger v. Duryee, 90 N. Y. 594; Derham v. Lee, 87 N. Y. 599; Craig v. Commissioners, 203 N. Y. Supp. 236; Edwards v. Woodruff, 90 N. Y. 396; Knickerbocker Trust Company v. O., C. & R. S. R. Co., 188 N. Y. 38; Earle v. Earle, 73 App. Div. 300; 173 N. Y. 480; Weston v. Stoddard, 60 Hun, 290.) The plaintiffs, appellants, are entitled to a renewal provided such renewal term is obtained from the County Holding Company. (Gillett v. Bank of America, 160 N. Y. 549; Marshall v. Com. Travelers Mut. Acc. Assn., 170 N. Y. 434; Moran v. Standard Oil Co., 211 N. Y. 187; Murray v. Harway, 56 N. Y. 337; Conger v. Duryee, 90 N. Y. 594; Wilkinson v. Pettit, 47 Barb. 230.)
   Hiscock, Ch. J.

This action was brought by plaintiff to obtain a declaratory judgment and the appeal presents questions springing from a clause in a lease of property in New York city providing for a renewal or extension of the original term. Some of the questions arise between the plaintiffs and defendants; others between the two defendants and in connection with the latter there is the additional question whether under the pleadings and proceedings upon the trial one defendant was entitled to the judgment which has been awarded to it against its co-defendant. The present parties have succeeded and stand in the places respectively of those who were originally parties to the transactions involved.

In June, 1914, the Whiting Development Corporation to whose rights and obligations the defendant County Holding Company has succeeded made a lease of certain premises to the Capital Lunch, Inc., to whose rights and obligations the defendant Bickford’s Lunch System has succeeded, for a term commencing June 17, 1914, and ending February 1, 1925. This lease in addition to other provisions not material in this discussion contained clauses to the effect that the lessee would not “ assign this lease or underlet the demised premises without the written consent of the lessor is had and obtained ” and to the effect that the tenant, provided it was not in any default on February 1, 1924, should “ have an option for a further term of five years ” at a given rental and that this option must be exercised by a notice in writing served upon the landlord before February 1, 1924.

The tenant entered into possession of the premises and in May, 1919, executed a sublease to Shapiro and others to whose rights and obligations the plaintiffs have succeeded. By this instrument the lessor, being the original lessee, leased to its lessees the premises in question for a term “ commencing on the 5th day of May, 1919, and to end on the 30th day of January, 1925,” at a specified rental and in addition agreed that said sublessees provided they were not in default in any manner on February 1, 1924, should “ have an option for a further term of five years ” at a given rental and that this option Was to be exercised by notice in writing before February 1, 1924. In recognition of the fact that this original lessee could not make a sublease of the premises without the consent of its lessor what has been called a tripartite agreement was executed. The proposed sublessees executed an instrument whereby, after recital of the facts that the Capital Lunch System (as it had then become) desired “ to sublet ” to them the premises in question “for a term expiring on the 30th day of January, 1925,” and had applied to the original lessor to consent to such sublease and the latter had agreed so to do on certain conditions and “ as an inducement to the County Holding Company to consent to the execution of the sublease hereinbefore recited and in consideration of such consent,” they, the sublessees, did guarantee the performance by the Capital Lunch System of its obligations contained in the original -lease. The Capital Lunch System on its part executed an instrument requesting the County Holding Company to consent to a subleasing of said premises to its proposed subtenants. The County Holding Company in consideration of the agreements respectively of the proposed sublessor and the -sublessees executed an instrument whereby it consented “to a subletting of said premises * * * it being distinctly understood that no assignment and no further subletting of said premises shall hereafter be made except with the consent of the County Holding Company. ’ ’ These instruments supplied the only connection between the original lessor and the sublease and it will be noted that they did not refer to any assignment of the original lease but to what was truly a sublease expiring one day before the expiration of the original term (Collins v. Hasbrouck, 56 N. Y. 157, 162) and contained no reference to the extension clause in the sublease.

In accordance with these instruments and the sublease, the sublessees entered into possession of the premises and ultimately and apparently as a matter of convenience to all parties they paid the rent therefor directly to the County Holding Company as successor to the original lessor. Some time in 1923 the sublessor and the sub-lessees commenced to demand of the original lessor a renewal or extension of the term for a period of five years as provided in the clause hereinbefore quoted and prior to the date provided, February 1, 1924, each of them served notice in accordance with the terms of the clause demanding such renewal or extension. The County Holding Company refused to grant such extension to the sublessee talcing the position that it was not entitled thereto and did not execute any extension to its own lessee. It continued to collect rents of the plaintiffs after it knew of the clause in the sublease purporting to give to the sub-lessees a right of extension and after the latter had demanded such extension.

Finally this action was commenced praying for a declaratory judgment and, largely solving the question of practice between the co-defendants hereafter considered, the complaint after setting forth with considerable detail the alleged rights of the various parties incorporated in its demand for declaratory judgment the prayer that said judgment specify whether Bickford’s Lunch System is entitled to á renewal of the original lease of said demised premises * * * for a term of five years from the expiration of the original term mentioned in said lease ” and the defendant County Holding Company in its answer demanded judgment “ decreeing that neither the plaintiffs nor the defendant Bickford’s Lunch System was entitled to a renewal of the lease dated and executed May 15, 1919.”

The Special Term reached the conclusion on voluminous findings that the sublessees were entitled to an extension for five years and rendered a judgment directing the defendant County Holding Company to execute a lease to its lessee for such extension and directing such lessee to execute a sublease to plaintiffs for the same extension. The Appellate Division reversing various findings and conclusions of law and making new ones rendered judgment declaring that plaintiffs were not entitled to a lease for the extended period but that the defendant Bickford’s Lunch System as original lessee was entitled to such a lease. Striking out the provisions in the judgment of the Special Term for specific performance by the original lessee of its agreement with its sublessees for such extended period, it made no declaratory provision otherwise determining or fixing the rights and remedies as between sublessor and sublessee in the absence of the provision for specific performance.

We agree with the conclusions reached by the Appellate Division. In fact on the written instruments by which the rights of the parties are to be decided, it seems difficult to debate those conclusions. The lease between the original lessor and lessee as distinctly and explicitly as could be, provided for a definite term expiring on a certain date, with a mere option or executory right to an extension of this period for a certain period if exercised under certain conditions and before a certain date. While this term still existed and long before the right to exercise its option for an extension arrived and while its only estate in the premises was for the specific term, the lessee executed to plaintiffs’ predecessors a sublease for the term commencing on the 15th day of May, 1919 and to end on the 30th day of January, 1925,” being one day prior to the date of expiration of the original lease. It is true the lease contained the clause purporting to give to the sublessees the right of extension. But that was an independent provision creating a separate and additional right and when in recognition of the necessity for consent by the original lessor to a sublease the parties executed the agreements which have been referred to, they all referred to and were predicated upon a sublease for a definite period and contained no reference or consent to a transfer of the option possessed by the original lessee. The transaction covered by these instruments and consented to by the original landlord was distinctly a sublease and not an assignment of the original lease. The request by the proposed sublessees expressly recited a proposition to “ sublet ” for a specific term and as an inducement to the original lessor to consent to the execution of the “ sublease hereinbefore recited ” made certain covenants and promises. The original lessee requested a consent to a subleasing ” and not to any assignment of the lease and the landlord consented to such subletting ” and expressly provided that no assignment and no further subletting of said premises should be made except upon consent. So with all these instruments expressly limiting the transaction to a sublease of the premises which the original lessee was then enjoying and expressly prohibiting any assignment or further subleasing without further consent, it seems quite plain to us that there was no consent to an assignment of the original lease or of the option therein contained for an extension of the term originally provided for.

It is urged, however, that whatever may have been the limitations of these instruments, the Holding Company by receipt of rent from the sublessee during the original term created by the lease after knowledge of the provision in the sublease for an extension has waived the right to object to a renewal of the sublease and to refuse a renewal of the principal lease.” Perhaps we might more accurately view the plaintiffs’ proposition as one of estoppel rather than one of waiver but we see no element upon which to base their proposition in either form. As has been fully stated the sublessees executed covenants and guaranties of performance by the original lessee of its obligations which, of course, included payment of rent and subsequently, apparently by arrangement of all parties to avoid unnecessary trouble the sublessees paid directly to the original lessor thus saving a double operation of payment by them to their lessor and payment by the latter to its lessor, and the defendant received this rent after knowledge of the clause in the sublease providing for an extension of the term and after demand by the sublessee and its lessor for such extension.

There is left in the case no finding of estoppel or waiver and certainly there was none as matter of law. Under well-recognized principles the defendant cannot be regarded as having waived the necessity for its consent, or its right to object to the attempted extension of the lease, unless it has received from the plaintiffs as sublessees benefits in the way of rents which are so attributable to this proposed extension as to prevent defendant from questioning it. As a matter of fact it has done no such thing. It has received rents to which it was entitled under a sublease of a specific estate and term to which alone it consented and which was entirely seperate and distinct from the provision for an extension of such sublease to which it not only did not consent but to which it duly and specifically objected. Thus there is here no acceptance of benefits with one hand while with the other the beneficiary attempts to brush away obligations which necessarily spring from or accompany the benefits.

The case of Collins v. Hasbrouck (supra) does not hold anything which is at all inconsistent with this view. That was an action of ejectment brought to oust a subtenant from the possession of leased premises. The foundation of the plaintiff’s claim was that the action of an original lessee in including in a sublease a provision for an extension of the original term, operated under the terms of the original lease as a forfeiture which enabled the landlord to regain possession before expiration of the original and unquestioned term and he was seeking to eject the subtenant under thos,e circumstances. After knowledge of the provisions in the sublease for an extension of the term and which were claimed to work a forfeiture, the landlord received rent and it was held that this receipt of rent operated as a waiver of the forfeiture. It was plain that it did under the views adopted by the court because it was held that the action of the lessee at once produced a forfeiture and enabled the landlord to regain possession of the premises. Under this view it was naturally enough held that when, after knowledge of the forfeiture, he went on receiving rents and treating the tenant as lawfully in possession he waived forfeiture. The difference between a receipt of rent with knowledge of provisions in a sublease, as operating as a waiver of forfeiture which had accrued, and as operating as a consent to an extension of the lease under the circumstances developed in this case seems quite clear. A landlord cannot very well receive rents from a sublessee thereby conceding that the latter is lawfully in possession and then insist that his tenancy has been forfeited and that he may be ejected. A landlord who receives rent to which he is expressly entitled from a subtenant under an express term to which he has consented is not thereby prevented from refusing to consent to an extension of that term to which he has never consented and to which the rents which he is receiving are in no manner attributable.

We next come to the consideration of the question whether the defendant Bickford’s Lunch System is entitled as tenant to an extension of the lease as provided in the original instrument. Passing for the moment the question of pleadings and proceedings upon the trial, we are able to perceive no reason why it is not entitled to such extension as has been held by the Appellate Division. It has served notice upon the defendant County Holding Company as provided by its lease and under the circumstances of the case we do not find any thing which warrants the conclusion that its attempt to give to its sub-lessees an option for an extension now operates as a forfeiture of its rights. Of course, any right of extension to which said defendant is entitled will be for its own benefit without any right of sublease or assignment except with the consent of its lessor. Under the judgment as it now stands the plaintiffs are not entitled to any possession of the leased premises for the extended term and if the defendant Bickford’s Lunch System should attempt to use its extension of the lease without the consent of its landlord for the purpose of maintaining them in possession of the premises it very likely might happen that the Holding Company would be entitled to relief terminating the rights of its co-defendant as well as the plaintiffs.

The defendant County Holding Company urges, without foundation we think, that the court did not have jurisdiction to adjudicate the respective rights of itself and its co-defendant. We have already referred to the demand for judgment declaring the rights of the Bickford’s Lunch System not only contained in the plaintiffs’ complaint but also in the answer of the defendant Holding Company. In addition, at the close of the trial the trial justice without any objection on the part of the Holding Company took the view that the rights of all of the parties were before the court for determination. Under these circumstances we think that the court was authorized to pass upon the rights of defendant Bickford’s Lunch System as against its co-defendant and to declare that it was entitled to an extension of the original term of the lease.

One aspect of the respective rights of plaintiffs and of the Lunch System remains undetermined. The latter gave to the former an express covenant to renew its lease for the term of five years and it is now being determined that plaintiffs cannot have judgment for specific performance of that agreement for the reason that the Bickford’s Lunch System has not power to carry it out. Under such circumstances ordinarily a court of equity having obtained jurisdiction of the parties and then controversy and being unable to decree specific performance would award to the injured party such relief as might be rendered appropriate by the default of the other party. This has not been done and no evidence was presented on the trial which would furnish the basis for such relief. Under some circumstances it perhaps might be deemed desirable to send the case back in order that this question might be passed on and a complete adjudication of all of the rights of the parties had. This, however, is more or less a matter of discretion and we do not deem it wise to do it especially since the parties themselves did not request the court to pass upon this aspect of the case. The court is given the power to declare rights and other legal relations on request for such declaration “ whether or not further relief is or could be claimed ” (Civil Practice Act, section 473), and we, therefore, leave the determination of this feature of their rights to such further proceedings if any as the parties may see fit to adopt.

Therefore, the judgment should be affirmed, with costs to the defendant County Holding Company gainst plaintiffs and with costs to the defendant Bickford’s Lunch System against plaintiffs and defendant County Holding Company.

Cardozo, Pound, McLaughlin, Crane, Andrews and Lehman, JJ., concur.

Judgment affirmed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    Harris F. MacNeish, Respondent, v. Tuckahoe Stone Corporation, Appellant.

      Real property — covenants establishing neighborhood as residential — action to restrain defendant from conducting business of quarrying and stone-crushing.

      MacNeish v. Tuckahoe Stone Corpn., 212 App. Div. 825, affirmed.
    (Argued June 5, 1925;
    decided October 6, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 14, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was to restrain the defendant from conducting the business of quarrying and stone-crushing on certain premises in the town of Eastchester on the ground that such a use of the premises was violative of' certain covenants running with the land estabhshing the neighborhood as residential and excluding therefrom all manufacturing and business enterprises which might be offensive to owners of houses therein.

      Humphrey J. Lynch for appellant.

      Fred P. Harrington for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John Mazukiewicz, Respondent, v. The Hanover National Bank of the City of New York, Appellant.
    (Submitted July 15, 1925;
    decided October 6, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 317.)


text:
    Lanyon’s Detective Agency, Inc., Respondent, v. John Cochrane et al., Appellants.
    (Submitted July 15, 1925;
    decided October 6, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 274.)


text:
    Thomas E. Moore, Appellant, v. Van Beuren and New York Bill Posting Company, Respondent.
    (Submitted July 15, 1925;
    decided October 6, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 673.)


text:
    William Rubin et al., Appellants, v. The City of Syracuse, Respondent.

      Appeal —failure to obtain permission to appeal from order granting motion to strike case from calendar.

      Rubin v. City of Syracuse, 212 App. Div. 475, appeal dismissed.
    (Argued October 5, 1925;
    decided October 6, 1925.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 25, 1925, which reversed an order of Special Term denying a motion to strike the within case from the Special Term calendar and granting said motion.
    The motion was made upon the ground that an appeal did not lie of right to the Court of Appeals and that permission to appeal had not been obtained.

      Henry E. Wilson for motion.

      William Rubin opposed.
   Motion granted and appeal dismissed, with costs'and ten dollars costs of motion.


author: Per Curiam.

text:
    Michael Brocia, Appellant and Respondent, v. F. Romeo & Co., Inc., Respondent and Appellant.

      Appeal — where judgment properly dismissed by trial court plaintiff not entitled on appeal to modification granting leave to serve amended complaint — where identical remittiturs relate to same judgment entry of judgment for costs on both improper — judgment for costs in all courts not justified by remittitur affirming “ with costs.”

    1. A plaintiff who has appealed from a judgment properly dismissing his complaint, instead of having secured leave to amend, is not entitled to have the judgment modified so as to give him leave to serve an amended complaint.
    2. • Where two distinct appeals are presented to this court upon separate records it is proper to hand down two remittiturs, but, where the remittiturs are identical and show that they relate to the same judgment, there is no justification for the entry of a judgment on each remittitur for costs.
    3. The mere allowance of costs without anything further means costs in this court. It is, therefore, improper to enter judgment for costs in all courts upon a remittitur affirming a judgment " with costs.”
    (Submitted July 15, 1925;
    decided October 6, 1925.)
    Motion to amend remittitur. (See 240 N. Y. 233.)
   Per Curiam.

The motion for a re-argument to the end that our remittiturs may be amended is denied.

Plaintiff having appealed from the judgment dismissing his complaint as to the first cause of action instead of having secured leave to amend at the trial is not entitled to have the judgment modified by giving him leave to serve an amended complaint. His complaint having been properly dismissed on the ground that he did not establish any cause of action against the defendant, he is not now entitled to a modification permitting amendment of complaint and ordering a new trial.

By their unfortunate practice counsel presented to this court two distinct appeals upon separate records and, therefore, it was proper to hand down two remittiturs but these remittiturs are identical and show that they relate to the same judgment and, therefore, there was no justification for the entry by defendant of a judgment on each remittitur against plaintiff for costs on the affirmance of the judgment dismissing his complaint. This resulted in a double judgment for the same costs and of course was improper. Such procedure, however, can be corrected on proper application to. the Supreme Court.

It is also stated, but it is impossible for us to determine whether correctly, that defendant on our remittitur affirming the judgment dismissing plaintiff’s first cause of action “with costs” has.entered judgment for costs in all courts. If so, this was incorrect as'it is well understood that the mere allowance of costs without anything further means costs in this court.

All concur.


text:
    William H. Lough, Appellant, v. The Ronald Press Company, Respondent.

      Contract — rescission — action to rescind a contract for the sale of the manuscript of a booh.

      Lough v. Ronald Press Co., 210 App. Div. 875, affirmed.
    (Argued June 12, 1925;
    decided October 13, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 9, 1925, unanimously affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion for a dismissal ' of the complaint. The action was to rescind a written contract, for an injunction, an accounting and damages, and to compel the surrender and assignment by the defendant to the plaintiff of all unsold copies and of the plates of a certain book of which it was alleged plaintiff was the author, together with the copyright.

      Abraham Tulin for appellant.

      Wilber W. Chambers for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Susie J. Allendorf, Respondent, v. The Fidelity and Casualty Company of New York, Appellant.

      Appeal — motion to dismiss appeal, without permission, from order affirming order which granted motion to amend judgment granted.

      Allendorf v. Fidelity & Casualty Co., 214 App. Div. 757, appeal dismissed.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 21,1925, which affirmed an order of the court at a Trial Term granting a motion to amend a judgment theretofore entered nunc pro tunc.

    The motion was made upon the ground that an appeal did not lie as of right to the Court of Appeals and that permission to appeal had not been obtained.

      Stewart F. Hancock for motion.

      Charles A. Hitchcock opposed.
   Motion granted and appeal dismissed, with costs of appeal.


text:
    The General Supply and Construction Company, Appellant, v. Robert Goelet, Respondent, and The Unit Concrete Steel Frame Company, Appellant, Impleaded with Others.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
    Motion to amend remittitur. (See 241 N. Y. 28.)
   Motion granted. Return of remittitur requested and when returned the same to be deemed amended by providing that judgments of Appellate Division and of this court be modified so as to include to each appellant an extra allowance of five per cent on amount of its recovery.


text:
    Charles M. Camp, as Executor of Ellen P. Kellogg, Deceased, Appellant, v. Alfred G. Reeves et al., Individually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Respondents, Impleaded with Others. Ethel T. Kellogg, as Executrix of John P. Kellogg, Deceased, Appellant, v. Alfred G. Reeves et al., Individually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Respondents, Impleaded with Others. Alva E. Belmont, Appellant, v. Alfred G. Reeves et al., Individually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Respondents, Impleaded with Others.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motions for re-argument and to amend the remittitur denied, with ten dollars costs of only one motion. (See 240 N. Y. 672.) Held, that on the merits the legal liability of defendants rests solely on contract to disclose the facts of the defalcation of Herbert Reeves and the actions are barred by the Statute of Limitations.


text:
    Archibald B. Barker, Appellant, v. Liberty Bank of Jamestown, Respondent.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 688.)


text:
    Thomas M. Stanley, Appellant, v. Daniel J. Leary et al., Copartners under the Firm Name of Leary & Co., Respondents.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 659.)


text:
    The People of the State of New York ex rel. Falkenau & Hamershlag, Inc., Appellant, v. William E. Walsh et al., Constituting the Board of Appeals of the City of New York, Respondents.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motion for re-argument and to amend remittitur denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 688.)


text:
    In the Matter of Proving the Will of Joanna May, Deceased. William D. May, Jr., et al., as Executors of Leslie W. May, Deceased, et al., Appellants; Florence M. Miller et al., Respondents.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 1.)


text:
    Joint Stock Company of Volgakama Oil and Chemical Factory, Respondent, v. The National City Bank of New York, Appellant.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 368.)


text:
    William H. W. Youngs, Plaintiff, v. Clarissa Goodman et al., Defendants. Philip Berolzheimer, Chamberlain of the City of New York, Appellant; Walter G. Herbert, as Ancillary Administrator of the Estate of Louise Montes, Deceased, Respondent.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 470.)


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

      Appeal — motion to dismiss appeal from order reversing dismissal of patrolman denied.

    Reported below, 214 App. Div. 741.
    (Argued October 5, 1925;
    decided October 13, 1925.)
    Motion, to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 8, 1925, which reversed a determination of the commissioner of public safety of the city of Albany dismissing the respondent herein from the office of patrolman in the police department of the city of Albany.
    The motion was made upon the ground that the appeal was unauthorized.

      Joseph L. Delaney for motion.

      Anthony De Stef ano opposed.
   Motion denied, with ten dollars costs.


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

      Appeal — motion to dismiss appeal from order refusing to resettle order granted.

      Matter of Potts, 213 App. Div. 59, appeal dismissed.
    (Argued October 5, 1925;
    decided October 13, 1925.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 30, 1925, denying a motion to correct and amend a prior order and attempting to bring up for review two orders of the Columbia County Surrogate’s Court.

      John L. Crandell for motion.

      Daniel V. McNamee opposed.
   Motion to dismiss appeal from order of Appellate Division refusing to resettle its order granted, with costs. The two interlocutory orders of the surrogate are not before us on this appeal.


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

      Appeal — motion to dismiss appeal from order reversing order confirming report in condemnation proceedings denied.

    Reported below, 209 App. Div. 319.
    (Argued October 5, 1925;
    decided October 13, 1925.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 4, 1924, which reversed^ an order of Special Term confirming the proceedings of commissioners of appraisal in condemnation proceedings.
    The motion was made upon the ground that an appeal-did not lie as, of right to the Court of Appeals and that permission to appeal had not been obtained.

      Halsey Sayles for motion.

      Archibald Howard opposed.
   Motion denied, with ten dollars costs.


text:
    Louise Ellis, Respondent, v. Ann M. Kelsey et al., Appellants.

      Appeal — failure to file undertaking —■ motion to dismiss denied on filing of undertaking and payment of motion costs.

    Reported below, 214 App. Div. 784.
    (Argued October 5, 1925;
    decided October 13, 1925.)
    Motion to dismiss the appeal of Hawley Chapman from a judgment of the Appellate Division of the Supreme Court in- the first judicial department, entered July 8, 1925, affirming a judgment in favor of plaintiff entered upon the report of a referee.
    The motion was made upon the ground that said appellant had failed to file the required undertaking on appeal.

      Eugene A. Sherpick for motion.

      Patrick E. Callahan opposed.
   Motion that counsel for respondent be directed to accept service of a copy of the undertaking filed, with notice of such filing, granted on payment of ten dollars costs by appellant. Motion to dismiss appeal denied on compliance by appellant with above condition; otherwise granted.


text:
    Herman Schopflocher, Appellant, v. Harris Zimmerman, Doing Business as H. Zimmerman, Respondent.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 507.)


text:
    Leopold Zimmerman et al., Copartners under the Firm Name of Zimmerman & Forshay, Appellants, v. The Roessler & Hasslacher Chemical Company, Respondent.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
    Motion to amend remittitur. (See 240 N. Y. 501.)
   Motion granted. Return of remittitur requested and when returned such remittitur must be deemed amended by granting leave to plaintiffs to plead over within twenty-days on payment of all taxable costs and ten dollars costs bf this motion. (See 240 N. Y. 501.)


text:
    Classic Theatre Corporation, Appellant, v. Nathan L. Amster, Respondent, Impleaded with Another.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 479.)


text:
    In the Matter of the Application for Letters of Guardianship of the Person and Property of Joel W. Thorne, Jr., an Infant. Samuel Thorne et al., Appellants; Mary C. Thorne, Respondent.
    (Submitted October 5, 1925;
    decided October 13, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 444.)


text:
    In the Matter of the Application of Frederick Pflomm et al., as Executors of and Trustees under the Will of Charles E. Johnson, Deceased, Appellants. Richard O. Johnson et al., Appellants; Kate A. Johnson, Individually and as Executrix and Trustee, Respondent.

      Will — intent of testator that income taxes assessed against widow should be paid out of “ general estate ”— share of income paid to widow a part of “ general estate ” and must bear its proportion of such taxes.

      Matter of Johnson, 214 App. Div. 1, modified.
    (Argued October 8, 1925;
    decided October 20, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered August 4, 1925, which reversed a decree of the New York County Surrogate’s Court construing the will of Charles E. Johnson, deceased.

      ■ Seldon Bacon for petitioners, appellants.

      Emerson F. Davis for Richard O. Johnson et al., appellants.

      Joseph W. Keller, special guardian, appellant.

      George Gordon Battle, Aaron C. Thayer and Isaac H. Levy for respondent.
   Per Curiam.

The Appellate Division has decided that the will suifitiiently shows an intent on the part of the testator that such parts of the Federal and State income taxes as are assessed against his widow, Kate A. Johnson, by reason of her receipt of half of the net income of the trust fund created under paragraph third of the will should be borne and paid out of the general estate ” as provided in paragraph fourth of the will. A majority of the judges of this court have reached the same conclusion.

The Appellate Division has further decided that the words general estate ” as used in that paragraph refer to the balance of the net income arising from the trust fund after payment of one-half of the income to the widow. A majority of the judges of this court have reached the conclusion that even though these words in the context in which they are found may refer to income of the estate rather than to principal, yet they show a clear intent to include all the income of the general estate and not merely one-half thereof. The share of the income to be paid to the widow, like the share to be paid to other legatees, is part of the general estate and must bear its proportion of the income tax assessed against the widow.

The order of the Appellate Division and decree of surrogate should be modified by providing that the taxes imposed should be borne and paid out of the entire net income of the trust estate and as modified affirmed, with costs to respondent and appellants payable out of the estate.

His cock, Ch. J., Cardozo, Pound, Crane and Lehman, JJ., concur; McLaughlin and Andrews, JJ., dissent and vote for affirmance.

Ordered accordingly.


text:
    Alexander Roman, Appellant, v. Juliana Lobe, Respondent.

      Appeal — presumption that decsion unanimously affirmed by Appellate Division is supported by evidence.

    The Court of Appeals must presume that a decision which has been unanimously affirmed by the Appellate Division is supported by the evidence. (N. Y. Const, art. 6, § 9.)

      Roman v. Lobe, 213 App. Div. 162, affirmed.
    (Submitted October 5, 1925;
    decided October 20, 1925.)

      Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered March 6, 1925, which unanimously affirmed a determination of the Appellate Term affirming a judgment of the Municipal Court of the city of New York in favor of defendant.
    The action was brought to recover broker’s commissions alleged to be due to plaintiff for procuring the sale of defendant’s real property.

      Abraham Feinstein and Louis J. M. Druss for appellant.

      Peter B. Hanson and Frank J. Irving for respondent.
   Per Curiam.

The question of the constitutionality of section 442-e of the Real Property Law is not before us on this appeal.

The decision of the trial court does not show upon its face that the plaintiff was denied a recovery because of his omission to procure a license. It is a decision for the defendant upon the merits generally. The Constitution commands us to presume that this decision, having been unanimously affirmed by thé Appellate Division, is supported by the evidence (Constitution, art. VI, § 9).

. The judgment should be affirmed with costs.

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

Judgment affirmed.


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    In the Matter of the Application of Mary E. Fitzpatrick, Appellant, for an Order of Mandamus against New York State Teachers’ Retirement Board, Respondent.

      Teachers — pensions — mandamus to compel retirement of teacher for physical disability denied.

      Matter of Fitzpatrick v. N. Y. State Teachers’ Retirement Board, 212 App. Div. 760, affirmed.
    (Argued October 5, 1925;
    decided October 20, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 27, 1925, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the defendant to retire for physical disability a public school teacher as of the date of her application therefor and, she having died within sixteen days of her application, to pay to her beneficiary the amount of said retirement allowance.

      Gerald W. O’Connor, Thomas O’Connor, George E. O’Connor and John T. Norton for appellant.

      Frank B. Gilbert, Irwin Esmond and Raymond F. Allen for respondent.
   Order affirmed, with costs; no opinion.

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


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    Clara F. Ketcham, Respondent, v. Fred B. Wilbur, as Executor of Mary B. Hand, Deceased, Appellant. Mary D. Ketcham, an Infant, by Clara F. Ketcham, Her Guardian ad Litem, Respondent, v. Fred B. Wilbur, as Executor of Mary B. Hand, Deceased, Appellant.

      Decedent’s estate — action to recover upon alleged contract to bequeath amount sufficient to pay for care and support of infant and to leave to infant amount sufficient for maintenance and education during minority.

      Ketcham v. Wilbur (2 cases), 214 App. Div. 754, affirmed.
    (Argued October 5, 1925;
    decided October 20, 1925.)
    Appeal, in each of the above-entitled actions, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 6, 1925, which affirmed an order of Special Term denying a motion by defendant for a dismissal of the complaint. The actions were brought to recover upon an alleged contract whereby, it was alleged, defendant's testator promised and agreed, in consideration of the adoption by the plaintiff Clara F. Ketcham of the infant Mary D. Ketcham, that she would leave by her will to said Clara F. Ketcham a sum sufficient to compensate her for the care and maintenance of said infant to the time of the death of testator and to said Mary D. Keteham a sum sufficient to support and educate her until she should come of age.
    The following question was certified in both actions: “ Should the motion of the defendant to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, have been granted? ”

      George H. Sears for appellant.

      James E. Newell for respondents.
   Order in each case affirmed, with costs, and question certified in each case answered in the negative; no opinion.

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


text:
    The People of the State of New York ex rel. De La Vergne Machine Company, Respondent, v. Walter W. Law, Jr., et al., Constituting the State Tax Commission of the State of New York, Appellants.

      Tax—franchise tax — entire stock of corporation owned by Federal government and plant used in manufacture of war material —• when taxable status determined — validity of franchise tax for year during part of which government was owner.

      Matter of De La Vergne Machine Co. v. State Tax Comm., 211 App. Div. 227, affirmed.
    (Argued October 5, 1925;
    decided October 20, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered January 13, 1925, which annulled, on certiorari, a determination of the State Tax Commission imposing a franchise tax, under article 9-A of the Tax Law, upon the relator for the year commencing November 1, 1919, and ending October 31, 1920. The Federal government was the owner of all of the stock of the relator from November 7, 1917, until January 6, 1920, and used its plant for the manufacture of materials used in the construction of torpedo boat destroyers. The Appellate Division held that the taxable status of the company was determinable on November 1, 1919, and that the tax imposed had a manifest tendency to retard, impede and burden the 'activities of the United States in the progress of the war and otherwise to interfere with the execution of power constitutionally committed by Congress to the Federal government and was, therefore, void.

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

      Edward W. McMahon and Ralph P. Buell for respondent.
   Order affirmed, with costs; no opinion.

Concur: Hiscock, Ch. J., Cardozo, Pound, McLaughlin and Crane, JJ.; Andrews and Lehman, JJ., dissent on the ground that the State could impose the franchise tax after sale of the corporate stock by the United States government.


text:
    In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Lands Required for the Widening of East 161st Street in the Borough of The Bronx. The New York Central Railroad Company, Appellant.

      Tax — assessment ■—• condemnation proceedings — street widening — inclusion within area of assessment for benefit of lands owned by railroad and used as railroad yard.

      Matter of City of New York (East 161st Street), 213 App. Div. 865, affirmed.
    (Argued October 6, 1925;
    decided October 20, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 24, 1925, which affirmed an order of Special Term confirming the report of the commissioner of assessment in condemnation proceedings to acquire title to real property for the widening of a street. The question was whether it was proper to include within the area of assessment for benefit lands owned by a railroad corporation and used as a railroad yard.

      Frederick L. Wheeler and Alexander S. Lyman for appellant.

      George P. Nicholson, Corporation Counsel (Joel J. Squier and William B. R. Faber of counsel), for respondent.
   Order affirmed, with costs; 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, Respondent, Relative to Acquiring Title to Lands Required for the Opening of Wallace Avenue in the Borough of The Bronx. The New York, New Haven and Hartford Railroad Company et al., Appellants. In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Lands Required for the Opening of Eastchester Road in the Borough of The Bronx. The New York, New Haven and Hartford Railroad Company et al., Appellants. In the Matter of the Application of the City of New York, Respondent, Relative to Acquiring Title to Lands Required for the Opening of Kinsella Street, in the Borough of The Bronx. The New York, New Haven and Hartford Railroad Company et al., Appellants.

      Tax — assessment — condemnation proceedings — street opening — inclusion within area of assessment for benefit of lands owned by railroad and used as railroad yard.

    . Matter of City of New York (’Wallace Ave.), 207 App. Div. 897, affirmed.

      Matter of City of New York (Eastchester Road), 207 App. Div. 896, affirmed.

      Matter of City of New York (Kinsella Street), 207 App. Div. 897, affirmed.
    (Argued October 6, 1925;
    decided October 20, 1925.)
    Appeal in each of the above-entitled procedings, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 21, 1923, which affirmed an order of Special Term confirming the reports of commissioners of estimate and of commissioners of assessment in condemnation proceedings to acquire lands for the opening of a street. The question in each case was whether' it was proper to include in the area of assessment for benefit lands owned by a railroad corporation and used by it as a railroad yard. It was also contended that the assessment was excessive.

      Robert L. Luce and Charles M. Sheafe, Jr., for appellants.

      George P. Nicholson, Corporation Counsel (Joel J. Squier and William B. R. Faber of counsel), for respondent.
   Order in each case affirmed, with costs; no opinion.

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


text:
    348 Madison Avenue Corporation, Respondent, v. Robert P. Marshall et al., Copartners under the Firm Name of Robert P. Marshall & Co., Appellants.

      Landlord and enant ■— lease — cancellation of lease under clause providing therefor, a option of landlord, upon appointment of receivers of tenant’s property before commencement of term — liability of tenant for rent during term premises remained vacant.

      348 Madison Ave. Corpn. v. Marshall, 212 App. Div. 672, affirmed.
    (Argued October 6, 1925;
    decided October 20, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 1, 1925, which reversed an order of Special Term granting a motion to dismiss the complaint and denied said motion. The action was to recover rent. Plaintiff, as landlord, leased certain premises to defendants for a term of years. Subsequent to the execution of the lease, but before the commencement of the term, a receiver in bankruptcy was appointed for the tenant’s property, whereupon plaintiff, as landlord, duly notified defendants, as tenant, that by reason of the appointment' of such receiver plaintiff elected to and did terminate the lease in accordance with and subject to its terms. The complaint alleged that thereafter plaintiff endeavored to relet the leased premises but was unable to do so, and it is sought to recover the rent reserved up to the time of the commencement of this action, under a subsequent clause of the lease reading: “ In the event that this lease be 1 terminated ’ before the commencement of the term, as-above provided, the landlord may, at the landlord’s option, relet the leased premises, or any part or parts thereof, as the agent of the tenant * * *. In the event of re-entry or termination of this lease * * * the tenant shall remain liable until the time when this lease would have expired but for such termination for the equivalent of the amount of all the rent reserved herein, less the avails of re-letting * * *.”
    ’ The following question was certified: “ Does the first cause of action set forth in the amended complaint herein state facts sufficient to constitute a cause of action? ”

      Stanhope Foster for appellants.

      Winthrop A. Wilson and George E. Hite, Jr., for respondent.
   Order affirmed, with costs; question certified answered in the affirmative; no opinion.

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


text:
    In the Matter of the Claim of the Treasurer of the State of New York, Respondent, against Niagara Falls Power Company et al., Appellants. State Industrial Board, Respondent.

      Workmen's compensation — election of dependent of workman killed in the course of his employment to proceed against third parties — when award properly made to State Treasurer.

      Matter of Treasurer of State of New York v. Niagara Falls Power Co., 214 App. Div. 751, affirmed.
    (Argued October 6, 1925;
    decided October 20, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 12, 1925, unanimously affirming an award of the State Industrial Board, made under the Workmen’s Compensation Law, to the State Treasurer for the death of an employee of the defendant Niagara Falls Power Company as the result of injuries received in the course of his employment. The widow and children of decedent elected to proceed against third parties for negligence and recovered more than the commuted value of their claim for compensation. The question was whether the State Treasurer was entitled to an award under subdivisions 7 and 8 of section 15 of the Workmen’s Compensation Law.

      F. A. W. Ireland for appellants.

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

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


text:
    In the Matter of the Claim of Magdalena Knittle, Respondent, against Cassidy Co., Inc., et al., Appellants. State Industrial Board, Respondent.

      Workmen's compensation — death of workman from sarcoma which developed from injury — notice to employer.

      Matter of Knittle v. Cassidy Co., Inc., 213 App. Div. 843, affirmed.
    (Argued October 6, 1925;
    decided October 20, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 23, 1925, modifying and affirming as modified an award of the State Industrial Board made under the Workmen’s Compensation Law. Claimant’s husband died from sarcoma which developed from an accidental injury received in the course of his employment about sixteen months prior to his death. It was claimed that no notice of the particular injury from which sarcoma developed was given to the employer until seven or eight weeks after the accident and that knowledge upon the part of the employer of the accident and that decedent was otherwise injured was insufficient.

      William H. Foster and T. Carlyle Jones for appellants.

      William V. Hagendorn for claimant, respondent.

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

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


text:
    In the Matter of the Claim of Louis Anderson against Johnson Lighterage Company et al., Respondents. State Industrial Board, Appellant.

      Workmen’s Compensation Law—jurisdiction—former adjudication—State Industrial Board without jurisdiction to reopen case after decisions by Appellate Division and Court of Appeals that it had no power to make award.

      Anderson v. Johnson Lighterage Co., 214 App. Div. 743, affirmed.
    (Argued October 7, 1925;
    decided October 27, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 26, 1925, reversing an award of the State Industrial Board, made under the Workmen’s Compensation Law. The claimant, a longshoreman, in 1917 was injured by a fall on a dock in the course of his employment. An award, under the Workmen’s Compensation Law, was made but on appeal to the Appellate Division said award was reversed and the appeal dismissed (182 App. Div. 152) on the ground that claimant was engaged in maritime work. On appeal to the Court of Appeals the decision of the Appellate Division was affirmed (224 N. Y. 539), and thereafter a writ of certiorari to review the decision of the Court of Appeals was denied by the United States Supreme Court (248 U. S. 574). Upon the theory that by a later decision of the United States Supreme Court it had been held that injuries received on land were not maritime, the case was reopened by the Industrial Board and a new award made. The Appellate Division reversed on the ground that it had been finally determined that the Industrial Board had no jurisdiction to make an award.

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

      Walter L. Glenney and Bertrand L. Pettigrew for respondents.
   Order affirmed, with costs against State Industrial Board; no opinion.

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


text:
    The People of the State of New York ex rel. Jewelers Building Corporation, Respondent, v. State Tax Commission, Appellant.

      Tax — mortgage tax — agreement consolidating two mortgages •— recording tax paid on entire amount — improper to impose separate recording tax upon one of consolidated mortgages.

      People ex rel. Jewelers Building Corpn. v. State Tax Commission, 214 App. Div. 99, affirmed.
    (Argued October 7, 1925;
    decided October 27, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 10, 1925, which annulled so much of a determination of the State Tax Commission as held that a certain instrument executed by the relator to the Equitable Trust Company was subject to a recording tax under article 11 of the Tax Law. Relator had mortgaged its real property for $750,000, the mortgage had been recorded and the recording tax paid. Thereafter the mortgage was assigned to the Equitable Trust Company. On the same day relator executed and delivered to that company an additional bond and mortgage for $250,000 on the same property and the Equitable Trust Company and relator executed an agreement consolidating the two bonds and mortgages. The $250,000 mortgage and the consolidation agreement was thereafter recorded. The State Tax Commission determined that the consolidation agreement was a mortgage and that a recording tax was payable thereon. It also determined that a separate recording tax was payable upon the $250,000 mortgage. The Appellate Division annulled the latter determination.

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

      Max Miller and Jacob Feld for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Murray Hulbert, Appellant, for a Peremptory Order of Mandamus against Charles L. Craig, as Comptroller of the City of New York, Respondent.

      New York city — officers—forfeiture of office of president of board of aldermen by accepting office on State commission.

      Matter of Hulbert v. Craig, 213 App. Div. 865, affirmed.
    (Argued October 7, 1925;
    decided October 27, 1925.)
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 24, 1925, which affirmed an order of Special Term denying a motion for a peremptory order of mandamus to compel the comptroller of the city of New York to restore the petitioner’s name to the payrolls of the city as president of the board of aldermen; to require the comptroller to comply with the payroll for October, 1924, upon which the petitioner’s name appeared as entitled to $1,250, his statutory salary for the month as president of the board of aldermen; and to deliver to him a check for that sum. The motion was denied, on the ground that, by accepting in April, 1924, appointment by the Governor to membership on the Finger Lakes State Park Commission, petitioner had forfeited his office as president of the board of aldermen, pursuant to section 1549 of the New York city charter.

      Charles II. Tuttle, Carl E. Peterson and Murray C. Bernays for appellant.

      Charles L. Craig for respondent.
   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. Edna F. Steiger, Appellant, v. William T. Collins, as Acting Mayor of the City of New York, Defendant, and Charles L. Craig, as Comptroller of the City of New York, Respondent.

      New York city — civil service — commissioner of accounts without power to appoint unauthorized expert investigator and examiner.

      Matter of Steiger v. Collins, 213 App. Div. 76, affirmed.
    (Argued October 7, 1925;
    decided October 27, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered May 15, 1925, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the comptroller of the city of New York to audit and pay relator her claim for services rendered as an alleged expert investigator and examiner in the office of the commissioner of accounts at compensation fixed by such commissioner. The Appellate Division held that the commissioner of accounts had no power to employ an “ expert ” under the conditions disclosed by the record and had at his disposal no such office either within or without the classified service.

      Wilber W. Chambers for appellant.

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

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


text:
    In the Matter of the Application of James R. Ashley, Appellant, against William E. Walsh et al., Constituting the Board of Appeals of the City of New York, Respondents. In the Matter of the Application of Multiplex Garages, Inc., Appellant, against William E. Walsh et al., Constituting the Board of Appeals of the City of New York, Respondents.

      New York city — building zones — erection of group of individual garages not within rule prohibiting the erection of garages to contain more than five cars.

      In re Ashley v. Walsh, 213 App. Div. 155, reversed.

      In re Multiplex Garages, Inc., v. Walsh, 213 App. Div. 155, reversed.
    (Argued October 7, 1925;
    decided October 27, 1925.)
    Appeal, in each of the above-entitled proceedings, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 5, 1925, which reversed an order of Special Term sustaining an order of certiorari and annulling a determination of the board of appeals of the city of New York which revoked certain permits issued by the superintendent of buildings in the borough of The Bronx for the erection and maintenance of a number of individual garages under a provision of the Building Zone resolution prohibiting the erection of a garage for inore than five vehicles. It was held that the group of buildings was in effect a single garage for the storage of fifty-six cars.

      Henry S. Mansfield for appellants.

      George P. Nicholson, Corporation Counsel {John F. O’Brien and William, T. Kennedy of counsel), for respondents.
   In each case order of the Appellate Division reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division, on dissenting opinion of Merrell, J., below.

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


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    In the Matter of the Accounting of Shelton E. Martin et al., as Executors of Victor R. Mildeberger, Deceased, Respondents. Edward R. Ware et al., Appellants; Marguerite J. de Sabla, Respondent.

      Will — construction of conflicting provisions as to disposition of certain shares of stock.

      Matter of Mildeberger, 212 App. Div. 727, affirmed.
    (Argued October 7, 1925;
    decided October 27, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 8, 1925, which affirmed a decree of the Greene County Court judicially settling the accounts of the executors of and construing the will of Victor R. Mildeberger, deceased. The question was whether certain shares of stock, which had formed a part of a trust fund for the benefit of testator, passed under a provision in his will giving “ all my cash and securities ” to designated persons or whether they passed under another provision of the will disposing of all of his right, title and interest in and to" said trust.

      J. Sheldon Frost, Newton B. Cass and Levi S. Tenney for appellants.

      Henry F. Miller for executors, respondents.

      John L. Fray for Marguerite J. de Sabla, respondent.
   Order affirmed, with costs to respondents filing briefs payable out of estate; no opinion.

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


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    In the Matter of the Accounting of Simon N. Stein, as Executor of Louis N. Stein, Deceased, Appellant. Julius Berkman, Respondent.

      Decedent’s estate — contract — claim for medical services rendered decedent pursuant to alleged oral contract.

      Matter of Stein, 214 App. Div. 752, affirmed.
    (Argued October 8, 1925;
    decided October 27, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 6, 1925, which affirmed a decree of the Monroe County Surrogate’s Court allowing a claim by a physician against the estate of testator for medical services based upon an alleged oral contract whereby claimant agreed to render professional services to decedent as required and decedent agreed to pay therefor the sum of ten thousand dollars a year. It was alleged that the contract was made in 1909 and continued in force until the death of testator in 1918.

      Simon Fleischmann, Martin Clark and Adrian Block for appellant.

      Eugene J. Dwyer for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Application of Townsend Pinkney, Appellant, v. Leavitt J. Hunt et al., Composing the Firm of Hunt, Hill & Betts, Respondents.

      Attorney and client — summary order directing attorneys to turn over books, papers and property of client denied — compensation of attorneys — lien.

      Matter of Pinkney v. Hunt, 214 App. Div. 718, affirmed.
    (Argued October 8, 1925;
    decided October 27, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 9, 1925, which reversed an order of Special Term granting a motion for a summary order directing the respondents herein forthwith to turn over and deliver all books, papers and other property belonging to the petitioner, Townsend Pinkney, individually and as executor and trustee of and under the last will and testament of Cornelius S. Pinkney, deceased, and to account for and pay over all moneys withheld by said respondents from said petitioner, denied the said motion, fixed the compensation of the said respondents as attorneys for said petitioner and established a hen in favor of said respondents upon the papers and property of the petitioner individually and as executor and trustee in their hands until said compensation should be paid or security given therefor.

      Frank W. Wiswall and Harold E. Lippincott for appellant.

      Walter A. Peterson and Robert McLeod Jackson for respondents.
   Order affirmed, with costs; no opinion.

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


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    In the Matter of the Application of Donner-Hanna Coke Corporation, Respondent. City of Buffalo, Appellant.

      Tax^r: Huff alo -(city—of) assessment of property belonging in part to Federal government — apportionment permitted by charter.

      Matter of Donner-Hanna Coke Corpn., 212 App. Div. 338, affirmed.
    (Argued October 9, 1925;
    decided October 27, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 11, 1925, which reversed an order of Special Term directing the assessors of the city of Buffalo to apportion the property assessable to the Donner-Hanna Coke Corporation so that the lands owned by it be divided from the portion owned by the United States of America and be separately assessed, and that the buildings and improvements be entered upon the assessment rolls as exempt, property of the United States of America.

      Frederic C. Rupp, Corporation Counsel (Herbert A. Hickman of counsel), for appellant.

      John Lord O’Brian and Ralph TJlsh for respondent.
   Order affirmed, with costs, on ground that section 119 of the charter of the city of Buffalo permits a division of the assessment.

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


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    Seldon E. Nichols, Appellant, v. Lewis W. Emerson et al., as Executors of James Emerson, Deceased, Respondents.

      Partnership — action to impose liability for partnership debts upon estate of deceased limited partner — compromise by payment to trustee in bankruptcy of sum in settlement of all liability.

      Nichols v. Emerson, 210 App. Div. 281, affirmed.
    (Argued October 9, 1925;
    decided October 27, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 20, 1924, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The action was to impose liability upon the estate of a limited partner, deceased, for debts of the firm, it having been adjudged bankrupt, because of failure to file the certificate of limited partnership in the county where a branch of the business was conducted and the indebtedness incurred. The Appellate Division held that plaintiff’s claim was compromised by the payment by defendants to the trustee in bankruptcy of an amount in settlement of the decedent’s liability, such settlement having been authorized by the Federal bankruptcy court which had jurisdiction of the parties including the plaintiff.

      William T. Moore and Thomas F. McDermott for appellant.

      Henry W. Williams for respondents.
   Judgment affirmed, with costs, on opinion of Cochrane, P. J., below.

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


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    The People of the State of New York, Respondent, v. Mock Yick Tong, Appellant.

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

    (Argued October 12, 1925;
    decided October 27, 1925.)
    Appeal from a judgment of the Supreme Court, rendered January 9, 1925, at a Trial Term for the county of Bronx upon a verdict convicting the defendant of the crime of murder in the first degree.

      William Travers Jerome for appellant.

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

Concur: His cock, Ch. J., Caedozo, Pound, McLaughlin, Andrews and Lehman, JJ.; Crane, J., concurs under the provisions of section 542 of the Code of Criminal Procedure.


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    The People of the State of New York, Respondent, v. Charles W. Hansen, Appellant.

      Crimes — extortion — bribery — taking unlawful fees—judgment of conviction affirmed.

      People v. Hansen, 211 App. Div. 861, affirmed.
    (Argued October 12, 1925;
    decided October 27, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 5, 1924, which affirmed a judgment of the Nassau County Court rendered upon a verdict convicting the defendant of the crimes of extortion, bribery and taking unlawful fees.

      James E. Wilkinson for appellant.

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

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


text:
    Freidell Winery Company, Respondent, v. State of New York, Appellant.

      Excise — State — action to recover taxes paid under invalid statute.

      Freidell Winery Co. v. State of N. Y., 212 App. Div. 269, afSrmed.
    (Argued October 12, 1925;
    decided October 27, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 20, 1925, modifying and affirming as modified a judgment of the Court of Claims. Claimant sought to recover taxes it had paid the State under the provisions of the Liquor Tax Law, as amended by chapter 911 of the Laws of 1920, which defined “ non-intoxicating beverages ” as liquors containing not more than two and seventy-five one-hundredths per centum of alcohol by weight in violation of the Eighteenth Amendment to the Federal Constitution and the act of Congress passed thereunder (41 Stat. 307, 308), defining and prohibiting the sale of intoxicating liquors for beverage purposes.

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

      Garrard Glenn, Edward Schoeneck and William L. Glenn for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    William Rand, Respondent, v. City of New York, Appellant.

      Attorney-General — New York city — liability of city for services of Special Deputy Attorney-General designated to conduct investigations before grand jury in New York county.

      Rand v. City of New York, 212 App. Div. 870, affirmed.
    (Argued October 13, 1925;
    decided October 27, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 13, 1925, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover for legal services as Special Deputy Attorney-General designated by the Attorney-General to act under several requisitions of the Governor superseding the district attorney in the conduct of certain investigations before a grand jury in the county of New York pursuant to section 62 of the Executive Law which provides that compensation of Deputies Attorney-General so employed shall be a county charge.

      George P. Nicholson, Corporation Counsel (Charles Horowitz of counsel), for appellant.

      Clarence J. Shearn for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    The City of New York, Appellant, v. James Nickas, Respondent.

      New York city — bid for privilege of maintaining stand on Brooklyn Bridge — action by city to recover for refusal to enter into contract — authority of city officials to execute contract.

      City of New York v. Nickas, 212 App. Div. 810, affirmed.
    (Submitted October 13, 1925;
    decided October 27, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 26, 1925, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint and a verdict directed by the court upon defendant’s counterclaim. The action was to recover the difference between the amount of defendant’s bid for the privilege of maintaining and operating a stand upon the Brooklyn Bridge and the highest amount bid upon a resale of such privilege after refusal of defendant to execute a contract in conformance therewith. Defendant counterclaimed for the amount deposited With his bid. The trial court held that the commissioner of bridges of the city of New York had no power to make or execute the contract in question.

      George P. Nicholson, Corporation Counsel (Willard S. Allen and Isaac F. Cohen of counsel), for appellant.

      Francis Colety for respondent.
   Judgment affirmed, with costs, on the ground the stand in question is an obstruction to public travel.

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


text:
    International Paper Company, Respondent, v. The State of New York, Appellant.

      Tax — stock transfer tax — claim against State for value of stamps alleged to have been erroneously affixed and canceled.

      International Paper Co. v. State of New York, 210 App. Div. 353, affirmed.
    (Argued October 13, 1925;
    decided October 27, 1925.)
    Appeal from a judgment, entered November 6, 1924, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing a judgment in favor of defendant entered upon a dismissal by the Court of Claims of the plaintiff’s claim and directing judgment in favor of plaintiff. The claim was filed pursuant to section 280 of the Tax Law to obtain a refund of an amount paid for stock transfer stamps which it was alleged were erroneously affixed and canceled in connection with a certain agreement for the deposit of stock.

      Albert Ottinger, Attorney-General (C. T. Dawes and Edward G. Griffin of counsel), for appellant.

      William C. Cannon, Theodore Kiendl and Havens Grant for respondent.
   Judgment affirmed, with costs; no opinion.

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


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    Leonie C. Halstead, as Executrix of Samuel H. Halstead, Deceased, Appellant, v. Westchester Electric Railroad Company, Respondent.

      Negligence — railroads — intoxicated pedestrian struck by car while crossing street — failure to prove wanton negligence on part of motorman.

      Halstead v. Westchester Electric R. R. Co., 213 App. Div. 832, affirmed.
    (Argued October 13, 1925;
    decided October 27, 1925.)
    Appeal from a judgment, entered April 28, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint. The action was to recover for the death of plaintiff’s testator alleged to have been occasioned through the reckless, willful and wanton negligence of one of defendant’s motormen. ■ It was alleged that while decedent was staggering across the street, which was covered with ice and slippery, in an obviously helpless intoxicated condition, walking unsteadily and in a zigzag manner, and manifestly unaware of an approaching trolley car, and plainly oblivious to the danger, the motorman, who during all of the time was looking at the place where decedent was walking, permitted the car to approach and strike decedent in the back, and to knock him down and drag him for a distance of forty-seven feet, without making any effort to avoid the accident by stopping or retarding the speed of the car, until just before the collision.

      Sydney A. Syme and John J. Crennan for appellant. Alfred T. Davison, Archibald C. Mayo and Addison B. Scoville for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John Dobson, Appellant, v. Bay Ridge Operating Company, Inc., Respondent.

      Appeal—failure to file undertaking—motion to dismiss granted.

      Dobson v. Bay Ridge Operating Co., 210 App. Div. 693, appeal dismissed.
    (Submitted October 19, 1925;
    decided October 27, 1925.)
    Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered November 14,1924, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint.
    The motion was made upon the ground of failure to file the required undertaking.

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


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    Commissioner of Public Welfare of the City of New York, Respondent, v. Frederick Laljer, Appellant.

      Bastardy — order of filiation affirmed.

      Comr. of Public Welfare v. Laljer, 214 App. Div. 733, affirmed.
    (Argued October 14, 1925;
    decided October 30, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 22, 1925, which affirmed an order of the Court of Special Sessions of the city of New York adjudging the defendant to be the father of a bastard child and directing him to give security for the payment to the plaintiff of a sum for its support.

      Maurice J. O’Callaghan and Elias H. Avram for appellant.

      George P. Nicholson, Corporation Counsel {John F. O’Brien, Henry J. Shields and William J. Leonard of counsel), for respondent.
   Order affirmed; no opinion.

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


text:
    Jennie Hollenbeck, as Administratrix of the Estate of Herman Hollenbeck, Deceased, Respondent, v. Pennsylvania Railroad Company, Appellant.

      Negligence — railroads — driver of motor truck killed by being struck by train at railroad crossing.

      Hollenbeck v. Penn. B. B. Co., 214 App. Div. 755, affirmed.
    (Argued October 14, 1925;
    decided October 30, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 20, 1925, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. The death of intestate resulted from a collision between one of defendant’s trains and a truck that he was driving southerly along the Bowen road at a point where it crosses the tracks of the defendant near the Elma station. There wás evidence from which the jury could find that the train approached at a high rate of speed without warning signals and that the view of intestate in the direction from which the train approached was obstructed.

      Harold J. Adams for appellant.

      Dana L. Spring for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Viktor B. Dold, Respondent, v. M’liss F. Dold et al., as Executors of Jacob C. Dold, Deceased, Appellants.

      Fraud — false representations — sale of stock alleged to have been induced by false representations.

      Dold v. Dold, 214 App. Div. 754, affirmed.
    (Argued October 14, 1925;
    decided October 30, 1925.)
    Appeal from a judgment of .the Appellate Division of the Supreme Court in the fourth judicial department, entered May 20, 1925, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover damages alleged to have been occasioned plaintiff by a sale of stock induced by false and fraudulent representations.

      James McC. Mitchell for appellants.

      James 0. Moore, Simón Fleischmann and Frank F. Williams for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    John Hofmann, Jr., as Administrator of the Estate of Grace Hofmann, Deceased, Respondent, v. New York Central Railroad Company, Appellant.

      Negligence — railroads — death of driver of automobile through its being struck by train at grade crossing.

      Hofmann v. N. Y. C. R. R. Co., 213 App. Div. 851, affirmed.
    (Argued October 14, 1925;
    decided October 30, 1925.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered March 28, 1925, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Plaintiff while driving an automobile was killed through its being struck by one of defendant’s trains at a grade crossing in the village of Oakfield. There was evidence from which the jury could find that deceased slowed down to eight or ten miles an hour when approaching the • tracks, that she looked in the direction from which the train was coming but that obstructions prevented her from seeing it and that' no proper or adequate warning signals were given of the approaching train.

      Howard R. Sturtevant for appellant.

      B. J. Stedman for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York, Respondent, v. Stanley Przybyl, Appellant.

      Crimes — escape — judgment of conviction affirmed.

      People v. Przybyl, 211 App. Div. 839, affirmed.
    (Argued October 16, 1925;
    decided October 30, 1925.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 26, 1924, which affirmed a judgment of the Erie County Court, rendered upon a verdict convicting the defendant of the crime of escape in violation of section 1694 of the Penal Law.

      Alfred L..Harrison for appellant.

      Guy B. Moore, District Attorney (William H. Hartzberg of counsel), for respondent.
   Judgment affirmed; no opinion.

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


text:
    Cora B. Luce, as Administratrix of the Estate of Walter M. Luce, Deceased, Appellant, v. New York, Chicago and St. Louis Railroad Company, Respondent.

      Appeal — order of Appellate Division reversing order denying motion to dismiss complaint and granting motion not appealable to Court of Appeals, no final judgment having been entered.

      Luce v. N. Y., C. & St. L. R. R. Co., 213 App. Div. 374, appeal dismissed.
    (Argued October 16, 1925;
    decided October 30, 1925.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered July 7, 1925, which reversed an order of Special Term denying a motion by defendant for a dismissal of the complaint and granted said motion.

      Hamilton Ward for motion.

      Evan Hollister opposed.
   Appeal dismissed, with costs, on ground that order is not appealable, no final judgment having been entered; no opinion.

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


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    Mary Rogers, as Administratrix of the Estate of Bert E. Rogers, Deceased, Appellant, v. International Railway Company, Respondent.

      Railroads — master and servant — Federal Employers’ Liability Act — local cars not rendered instrumentality of foreign commerce by occasional carriage of passenger bound for foreign country.

      Rogers v. International Ry. Co., 214 App. Div. 758, affirmed.
    (Argued October 16, 1925;
    decided October 30, 1925.)
    Appeal from a judgment, entered July 17, 1925, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action, brought under the Federal Employers’ Liability Act, to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant, his employer. Intestate, a conductor, was killed while about to take out his car on its daily run. between the city of Buffalo and the village of Kenmore. It was contended that because passengers riding on through tickets from' Canada were entitled to ride on the car on which intestate was employed, he was engaged in interstate commerce.

      Hamilton Ward for appellant.

      Noel S. Symons and Raymond C. Vaughan for respondent.
   Judgment affirmed, with costs, on authority of Borelli v. International Ry. Co. (240 N. Y. 54); no opinion.

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


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    In the Matter of the Application of Frank N. McCoy, Jr., Respondent, for an Order of Mandamus against James K. Apgar et al., Individually and Constituting the Board of Trustees of the Village of Peekskill, et al., Appellants.
    (Submitted October 26, 1925;
    decided October 30, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 241 N. Y. 71.)


text:
    Stephen Peabody, Jr., & Co., Inc., Appellant, v. The Travelers Insurance Company, Respondent.
    (Submitted October 26, 1925;
    decided October 30, 1925.)
   Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 240 N. Y. 511.)


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

      Appeal — unanimous affirmance — motion to dismiss appeal granted.

      Atkinson v. Atkinson, 213 App. Div. 827, appeal dismissed.
    (Submitted October 26, 1925;
    decided October 30, 1925.)
    Motion to dismiss an appeal from a judgment, entered March 17, 1925, upon an order of the Appellate Division of the Supreme Court in the second judicial department, unanimously affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.
    The motion was made upon the ground that permission to appeal had not been obtained.

      H. Preston Coursen for motion.

      Harry N. Selvage opposed.
   Motion granted and appeal dismissed.


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    The People of the State of New York, Respondent, v. S. Reid Spencer, Appellant.

      Appeal — orders denying motions to restore to calendar and for permission to resubmit denied — appeals therefrom dismissed.

      People v. Spencer, 210 App. Div. 841, 875, appeal dismissed.
    (Submitted October 26, 1925;
    decided October 30, 1925.)
    Motion to dismiss appeal from two orders of the Appellate Division in the first judicial department, entered respectively October 10, 1924, and November 7, 1924, the first denying a motion to restore an appeal from a judgment of conviction in the Court of Special Sessions, previously dismissed, to the calendar, and the second denying a motion to resubmit said motion.
    The motion was made upon the ground that no appeal lay to the Court of Appeals.

      Joab H. Banton, District Attorney {S. Reid, Edwin B. McGuire of counsel), for motion.

      S. Reid Spencer opposed.
   Motion granted and appeal dismissed.