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/Vt:,'.' YjrfC (State) Ci^.,t^
OFFICIAL EDITION
THE
MISCELLANEOUS REPORTS ^^
OASES DECIDED
IN THE
COURTS OF RECORD
OP THE
STATE OF NEW YORK
OTHBB THAN THB
Conrt of ippoals and the Appellate Diilslon of the Supreme Conrt
WILLIAM V. R. ERVING, Reporter
/
/
VOLUME CXIV.
1921
J. B. LYON COMPAinr, PUBLISHERS
ALBANY, N. Y.
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Entered according to act of Congress in the year one thousand nine hundred
and twenty-one,
Bt JOHN J. LYONS, Secrktart of thb ^tatb of New York,
In trust for Uie People of the said State in the office of the Librarian of Congress
at Washington, D. C.
SEP 15 m:
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Justices of the Supreme Court
FIRST JUDICIAL DISTRICT.
Hon. NATHAN BUUR.(6)
■ WILLIAM P. BURR.
" JOHN PROCTOR CLARKE.(l)
" DANIEL F. COHALAN.
- VERNON M. DAVIS.
■ FRANCIS B. DELEHANTY.
■ THOMAS F. DONNELLY.
- VICTOR J. DOWUNa,(5)
• MITCHELL L. ERLANQER.
■ EDWARD R. FINCH.
• JOHN FORD,
« EDWARD J. QAVEQAN,
« LEONARD A. QIEQERICH.
" SAMUEL OREENBAUM,(5)
• CHARLES L. GUY,
• PETER A. HENDRICK.
Hon. EDWARD
Hod. henry D. H0TCHKIS3.
« IRVING LEHMAN.(6)
■ RICHARD P. LYDON.
• JOHN V. McAVOY.
- PHILIP J. McCOOK.(6)
• EDWARD J. McGOLDRICK.(lO)
- FRANCIS MARTIN.
• RICHARD H. MITCHELL.
' GEORGE V. MULLAN.(6)
■ JOSEPH E. NEWBURQER.
■ JAMES O'MALLEY,
« ALFRED R. PAGE.(5)
• M. WARLEY PLATZEK.
■ JOHN M. TIERNEY.
• ROBERT F. WAaNER.((D
' ISIDOR WAS6ERVOGEU
O. WHITAKER.
SECOND JUDICIAL DISTRICT.
Hon. JOSEPH ASPINALL.
" RUSSELL BENEDICT.
" ABEL E. BLACKMAR.(2)
- STEPHEN CALLAQHAN.
- JAMES C. CROPSEY.CT)
« NORMAN S. DIKE.
« LEANDER B. FABER,
■ LEWIS L. FAWCETT.
• FRANK S. GANNON,
- WALTER H. JAYC0X.(5)
Hod. ISAAC M. KAPPER,
' CHARLES H. KELBY.(7)
- WILLIAM J. KELLY,(6)
■ EDWARD LAZANSKY.
■ JOHN McCRATE,
■ DAVID F. MANNING.CT)
" HARRINGTON PUTNAM,(5)
• ARNON L. SQUIERS,
« SELAH B. STRONG,
« JAMES C. VAN SICLBN.
THIRD JUDICIAL DISTRICT.
Hon. A. V. S. 00CHRANE,(5) Hon. WESLEY O. HOWARD,
- GILBERT D. B. HASBROUCK. ' CHARLES E. NICHOLS.
- HAROLD J. HINMAN, - JOSEPH R0SCH.(8)
Hon. WILLIAM P. RUDD.
FOURTH JUDICIAL DISTRICT.
Hon. HENRY V. BORST.
« HENRY T. KELLOGG.(5)
" JOHN M. KELLOGQ.O)
Hon. JAMES McPHILLIPS.
- CHARLES C. VAN KIRK.
■ EDWARD C. WHITMYER.
FIFTH JUDICIAL DISTRICT.
Hon. CLAUDE B. ALVERSON.
■ WILLIAM S. ANDREWS,*
■ FREDERICK M. CALDER,
• JEROME L. CHENEY.
Hon. LEONARD C. CROUCH,
• IRVING R. DBVENDORF,
■ IRVING G. HUBBS.(5)
« EDGAR S. K. MERRELL.(5)
iii
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SIXTH JUDICIAL DISTRICT.
Hod. ROWLAND L. DAVIS.(5) Hon. GEORGE McCANN.
- ABRAHAM L. KELLOGG. • WALTER LLOYD SMITH.(6>
- MICHAEL H. KILEY.(5) « THEODORE R TUTHILL.
SEVENTH JUDICIAL DISTRICT.
Hon. WILLIAM W. CLARK, (5) Hon. ADOLPH J. RODENBECK,
- BENJAMIN B. CUNNINGHAM, « SAMUEL N. SAWYER.
■ ADELBERT P. R1CH.(5) • JOHN B. M. STEPHENS,
Hon. ROBERT F. THOMPSON.
EIGHTH JUDICIAL DISTRICT.
Hon. CHARLES H. BROWN, Hon. LOUIS W. MARCUS,
• GEORGE W. COLE. * GEORGE E. PIERCE.
• WESLEY C. DUDLEY, " CHARLES A. POOLEY,
■ ALONZO G. HINKLEY. * CHARLES B. SEARS.
« FREDERICK W. KRUSB.(4) " HARRY L TAYLOR.
• JOHN S. LAMBERT, (5) " CHARLES B. WHEELER,
■ FRANK C. LAUGHLIN,(5) ■ JOHN WOODWARD. (5)
NINTH JUDICIAL DISTRICT.
Hon. MARTIN J. KEOGH, Hon. WILLIAM P. PLATT,
- ISAAC N. MILLS, (5) - ALBERT H. F. SEEGER,
■ JOSEPH MORSCHAUSER. - ARTHUR S. TOMPKINS.
Hon. J. ADDISON YOUNG.
JUDGES OF THE COURT OF CLAIMS.
Hon. FRED M. ACKERSON. P. J.. Hon. CHARLES MORSCHAUSER,
" WILLIAM D. CUNNINGHAM, * SANFORD W. SMITH,
Hon. WILLIAM W. WEBB.
JUSTICES OF THE CITY COURT OP THE CITY OP NEW YORK.
Hon. EDWARD F. O'DWYER. Ch. J.. Hon. ABRAHAM G. MEYER,
■ JOSEPH M. CALLAHAN. - THOMAS T. REILLY.
■ ALEXANDER FINELITE, * PETER SCHMUCK,
- EDWARD B. LA FETRA. " LOUIS A. VALENTE.
« GUSTAVE HARTMAN, - JOHN L. WALSH,
Hon. LOUIS WENDEL, Jr.
JUDGES OF THE COURT OP GENERAL SESSIONS OF THE
PEACE OF THE CITY OF NEW YORK.
Hon. THOMAS C. T. GRAIN. Hon. JOSEPH F. MULQUEEN,
• JOHN F. McINTYRE, « CHARLES C. NOTT. Jr..
« MORRIS KOEXIG.O) " OTTO A. ROSALSKY,
lion. ALFRED J. TALLEY.dO^
• DoeiqrjHtp'l bv the Governor under section 7 of article VI of the Constitution as an
Associiito Judge of the Court of Appeals.
1 Designated by the Governor a« Presiding Justice of the Appellate Division. First
Department.
2 Designated by the Governor as Presiding Justice of the Appellate Division, Second
Department.
3 Designated by the Governor as Presiding Justice of the Appellate Division. Third
Department.
4 Designated by the Governor as Presiding Justice of the Appellate Division. Fourth
Department.
5 Designated by tlie Governor as a Justice of the Appellate Division.
6 Designated by the Appellate Division. First Department, as one of the Justices of
the Appeilat3 Term, First I>epartmont.
7 Deaignnted by the Appellate Division, Second Department, as one of the Justices of
the Appellate Term. Second Department.
8 Appointed hv the Governor Jan. 12, 1921, to succeed Emory A. Chase, elcstod to
Court of Appeals.
9 Appointed Feb. 7, 1921. in plaee of William H. Wadhams, resigned.
10 Appointed Dec. 28, 1920, in place of James T. Malone. deceased.
iv
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County Judges
Brooklyn Kinga county.
Hon. GEORGE ADDINGTON Albany Albany oounty.
ELBA REYNOLDS ♦ Bsimont Allegany couaty.
LOUIS D. GIBBS Bronx Bronx oouniy.
BENJAMIN BAKER* Binghamton Broome county.
GEORGE A. LARKLN Olean Cattaraugus county.
EDGAR S. MOSilER Auburn Cayuga oounty.
ARTHUR B. OTTAWA Y Westfield Chaautuqua county.
CHARLES B. SWARTWOOD ♦ Elmira Chemug county.
JAMES P. HILL* , Norwich Chenango county.
JOHN K. COLLINS Platteburg Clinton county.
JOHN L, CRANDELI Philmont Columbia county.
GEORGE M. CHAMPLIN* Cortland Cortland county.
ANDREW J. McNAUGHT* SUmford Delaware county.
CHARLES W. H. ARNOLD Poughkeepsie . . . Dutchess county.
THOMAS H. NOONAN Buffalo Erie county.
BERNE A. PYRKE ♦ Port Henry Easez county.
FREDERICK G. PADDOCK ♦ Malone Franklin county.
WILLIAM S. CASSEDY t Gloversville Fulton county.
NEWALL K. CONE ♦ Batavia Genesee county.
JOSIAH C. TALLMADGE ♦ Catakill Greene oounty.
TIMOTHY D. SULLIVAN ♦ Long Lake Hamilton oounty.
CHARLES BELL ♦ Herkimer Herkimer county.
JOHN CONBOY Watertown Jefferson oounty.
WILLIAM R. BAYKS
J. GRATTAN M acM AHON
GEORGE W. MARTIN
MITCHELL MAY.
BEUBEN L. HASKELL.
MILTON CARTER* LowviU« LwHa county.
LOCK WOOD R. DOTY • Genesco Livingston county.
JOSEPH D. SENN * Oneida Madison oounty.
WILLIS K. GILLETTE Rochester Monroe county.
CHARLES E. HARDIES Amsterdam Montgomery county.
LEWIS J. SMITH Hompstoad Nassau county.
CHARLES HICKEY* Lockport Niagara oounty.
FREDERICK H. HAZARD Utica Oneida county.
WILLIAM L. BARNUM Syracuse Onondaga county.
HORACE W. FITCH Canadaigua Ontario county.
RUSSELL WIGGINS Middletown Orange county.
GERALD B. FLUHRER* Albion Orleans county.
HENRY D. COVILLE Oswego Oswego county.
ULYSSES GRANT WELCH Edmeston Otsego county.
J. BENNETT SOUTHARD • Cold Spring Putnam county.
BURT JAY HUMPHREY Jamaica Queens county.
PIERCE H. RUSSELL Troy Rensselaer county.
J. HARRY TIERNAN* Stapleton Richmond county.
MORTIMER B. PATTERSON * Nyaok Rockland county.
JOHN C. CRAPSER Maasena. St. Lawrence county.
LAWRENCE B. McKELVEY Saratoga Springs Saratoga county.
JOHN J. McMULLEN Schenectady Schenectady county.
DOW BEEKMAN ♦ Mlddleburg Schoharie county.
GEORGE M. VELIE * Watkins Schuyler county.
GEORGE F. BODINE • Waterloo Seneca countj'.
WARREN J. CHENEY Coming Steuben county.
GEORGE H. FURMAN Patchogue Suffolk county.
GEORGE H. SMITH * Monticello Sullivan county.
GEORGE F. ANDREWS * Owego Tioga county.
WILLARD M. KENT • Ithaca Tompkins county.
JOSEPH M. FOWLER Kingston Ulster countv.
GEORGE S. RALEY * Glens Falls Warren county.
KRSKINE C. ROGERS Hudson Falls.. . . Washm^ton county.
CLYDE W. KNAPP* Lyons Wayno county.
FRANK L. YOUNG O.isininK Westchester county.
JAMES E. NORTON ♦ Warsaw Wvomin? county.
GILBERT H. BAKER • Penn Yan Yatea county.
* Also Surrogate.
t Appointed by the Governor in place of Frank Talbot, deceased.
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special County Judges
Hon. a. EARLE TREAT Auburn Cayuga county.
FRANK S. WHEELER Jamestown Chautauqua county.
JOHN H. HICKS Norwich Chenango county.
HAROLD F. PORTER Carthage Jefferson county.
FREDERICK L. DUTCHER Rochester Monroe county.
PARKER F. SCRIPTURE Rome Oneida county.
HARRY B. FULLERTON Port Jervie Orange county.
QEORQE M. FANNING Fulton Oswego county.
CHARLES M. HALE Canton St. Lawrence county.
WILLIAM G. BIRMINGHAM Liberty SuUivan county.
FRANK A. BELL. Warerly Tioga county.
8. EDWIN BANKS Ithaca Tompkini rountv.
ELIOT D. NORTON Cambridge Washington county.
Surrogates
Hon. WILLIAM A. GLENN Elsmere Albwiy county.
GEOltGE M. S. SCHULZ Bronx Bronx county.
ALBERT A. BIRD Cattaraugus. . . . Cattaraugus county.
WALTER E. WOODIN Auburn C«yuga county.
HARLEY N. CROSBY Falconer Chautauqua county.
VICTOR F. BOIRE Plattsburg Clinton county.
JOHN V. WHITBECK. Jn Hudson Columbia county.
DANIEL J . GLEASON Poughkeepsie. . . Dutcheai county.
LOUIS B. HART Buffalo Erie oountv.
T. CUTHELL CALDERWOOD Johnstown Fulton county.
JOSEPH ATWELL Watertown Jefferson connty.
GEORGE A. WING ATE Brooklyn Kings county.
SELDEN S. BROWN Scottsville Monroe countv.
FOX 8PONABLE Nelliston Montgomer\ county.
LEONE D. HOWELL Min'ola Nassau county.
JOHN P. COHALAN New York . . . . \ ^^^ v«rlr ^,.,m».,
JAMES A. FOLEY New York / ^^^ York county.
E. WILLARD JONES Holland Patent. Oneida county.
JOHN W. SADLER Syracuse Onondaga county.
HARRY I. DUNTON Canandaigua OnUrio countv.
ELWOOD C. S.MITH Monroe Orange county.
CLAYTON I. MILLER Pula-ski Oswego county.
SHIRLEY L. HUNTINGTON Oneona Otaejco oountv.
DANIEL NOBLE Jamaica Queens county.
CHESTER G. WAGER. Troy Rensselaer countv.
ALRIC R. HERRIMAN Ogdensburg St. I.*wrencQ county.
WILLIAM S. OSTRANDER Saratoga Springs. Saratoga co«intv.
ALEXANDER M. VEDDER Schenectady Schenectadr county.
EDWIN C. S.MITH Addison Steuben county.
ROBERT S. PELLETREAU Patchogue Suffolk countv.
GEORGE. F. KAUF.MAX Saugerties Ulster county.
FREDERICK FRASER Salem Washington county.
GEORGE A. SLATER, Port Chester Westchester county.
Special Surrogates
Hon. RALPH HARTER Moravia Cayuga county.
ROBERT J. COOPER Dunkirk . , Cliautauqua county.
JOHN H. HICKS Norwich Chenango county.
JASPER W. CORNAIRE Cape Vincent. . . Jefferson county.
JOHN C EVANS Rome Oneida county.
CHARLES E. TAYLOR Middletown Orange county.
DAVID P. MOREHOUSE, Jr Oswego Oswego county.
JOHN M. BARR Ogdensburg St. Lawrence county.
WILLIAM SEARS Whitehall Washington county.
vi
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CASES REPORTED IN THIS SERIES WHICH HAVE BEEN
AFFIRMED OR REVERSED.
TOL. PAGl.
Alternian v. Home Insurance Co 112 445
Reversed : 195 App. Div. 151.
Bulova V. Barnett, Inc 114 94
Reversed : 194 App. Oiv. 418.
Burgess Bros. Co., Inc. v. Stewart 112 347
Affirmed: 194 App. Div. 1313.
Clough V. Gardiner Ill 244
Affirmed: 194 App. Div. 923.
Cockeroft v. Mitchell 101 211
Affirmed: 187 App. Div. 189; 230 N. Y. G30.
Cooper-Snell Co. v. State of New York 109 96
Affirmed : 230 N. Y. 249.
Coyne v. Town of Greenburgh 110 698
Reversed: 194 App. Div. 861.
Dunbar v. Sweeney 99 373
Modified: 230 N. Y. 609.
Eagan v. City of Buffalo 105 506
Affirmed (sub nom. Egan v. City of Buffalo) : 188 App.
Div. 953; 230 N. Y. 575.
First Construction Co. v. State of New York 110 164
Affirmed: 194 App. Div. 608.
Gambrill Mfg. Co. v. American Foreign Banking Corp. 113 448
Reversed: 194 App. Div. 425.
Outtag V. Shatzkin 113 362
Affirmed: 230 N. Y. 647.
Hausner v. Wickham 105 735
Affirmed : 186 App. Div. 931 ; 230 N. Y. 578.
Heckseher Building Corp. v. Melton 113 184
Affirmed: 194 App. Div. 957.
Hydraulic Power Co. v. Pettibone Cataract Paper Co.. 112 528
Affirmed : 194 App. Div. 819.
Kinneary v. Parrett 110 594
Affirmed: 194 App. Div. 911.
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viii CASES AFFIRMED OE REVERSED.
VOL. PAOl.
Levett V. Draper 108 621
Affirmed: 194 App. Div. 632.
Lezin«ky Co., Inc., v. Iloirman Ill 415
Affirmed: 194 App. Div. 95 i.
Matter of Barthelmess v. Cukor 112 204
Affirmed: 194 App. Div. 359.
Matter of Beckett 112 45
Affirmed: 194 App. Div. 901.
Matter of Caldwell 107 31G
^iffirmed: 195 App. Div. 890.
Matter of City of New York (Ely Ave.) 88 320
Reversed : 194 App. Div. 914.
Matter of Dollar 103 137
Affirmed: 194 App. Div. 948.
Matter of Early 112 54
Affirmed: 195 App. Div. 889.
Matter of Emerson v. Buck 112 1
Reversed: 230 N. Y. 380.
Matter of Frost 107 118
Reversed (sub nom. Matter of Kingsbury) : 192 App.
Div. 206; 230 N. Y. 680.
Matter of Lake 112 681
Affirmed: 194 App. Div. 967.
Matter of McDowell 102 275
Modified: 193 App. Div. 914; 230 N. Y. 601.
Matter of Scheibel 108 551
Reversed: 192 App. Div. 438; (sub nom. Matter of
Scheibel v. O'Brien) : 230 N. Y. 277.
Matter of Usatorres 112 437
Affirmed: 194 App. Div. 961.
Matter of Werlich 107 207
xVffirmed: 230 N. Y. 510.
Mills V. Friedman Ill 253
Affirmed: 194 App. Div. 012.
Mills v. McXamee Ill 253
Affirmed: 194 App. Div. 932.
Morrell v. Brooklyn Borough Gas Co. No. 1 113 65
Affirmed: 195 App. Div. 1.
Orton V. Tannenbaum 110 128
Reversed : 194 App. Div. 214.
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CASES AFFIRMED OR REVERSED.' ix
VOL. PAOE.
Palmer-Marcy Lumber Co. v. Osband 108 313
Affirmed (sub nom. Palmer-Marcy Co., Inc. v. Gordon) :
194 App. Div. 951.
People V. Willi 109 79
Affirmed: 194 App. Div. 946.
People ex rel. Brixton Operating Corp. v. La Fetra... 113 527
Affirmed: 194 App. Div. 523.
People ex rel. Brooklyn City R. R. Co. v. Pub. Serv.
Comm 110 509
Affirmed (sub nom. People ex rel. Brooklj^n City R.
R. Co. V. Nixon) : 193 App. Div. 746; 230 N. Y. 614.
People ex rel. Cassidy v. Lawes 112 257
Affirmed: 193 App. Div. 931; 230 N. Y. 553.
People ex rel. Cotton v. Leo 110 619
Modified and affirmed: 194 App. Div. 921.
People ex rel. Durham Realty Corp. v. La Fetra 113 536
Affirmed: 195 App. Div. 280; 230 N. Y. 429.
People ex rel. Facey v. Leo 110 616
Affirmed : 193 App. Div. 910 ; 230 N. Y. 602.
People ex rel. H. D. H. Realty Corp. v. Murphy 113 253
Reversed: 194 App. Div. 530; 230 N. Y. 654.
People ex rel. 176 West 87 St Corp. v. Cantor 107 6
Affirmed: 191 App. Div. 946. Modified and affirmed:
230 N. Y. 312.
People ex rel. Post & McCord, Inc. v. Cantor 108 632
Affirmed on opinion below: 194 App. Div. 9G1.
People ex rel. Sabatino v. Jennings 108 93
Affirmed : 194 App. Div. 950.
Rosenwasser v. Rosenwasser 110 38
Affirmed: 194 App. Div. 916.
Rothbarth v. Herzfeld 100 470
Affirmed : 194 App. Div. 962.
Sherman v. Richmond Hose Co. No. 2 101 62
Modified and affirmed: 186 App. Div. 417; 230 N. Y. 462.
Shilman v. Shilman 105 4()1
Affirmed: 188 App. Div. 908; 230 N. Y. 554.
Spitzer v. Born, Incorporated Ill 595
Reversed : 194 App. Div. 739.
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X CASES AFFIRMED OR REVERSED.
yOL. PAOB.
Staff V. Bemis Realty Corp Ill 635
Affirmed: 194 App. Div. 635.
Stem & Co. V. Avedon & Co., Inc Ill 372
Reversed: 194 App. Div. 433.
United States Mortgage & Trust Co. v. Liberty Na-
tional Bank 112 149
Affirmed: 195 App. Div. 890.
Wilmes v. Fournier Ill 9
Affirmed: 194 App. Div. 950.
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TABLE
OF
CASES REPORTED.
^* PAGE.
Adams v. Dodge 565
American Fruit Distributing
Co., Berman, Inc., v 345
American Institute for Sci-
entific Research, Greaves v. 413
American Union Line, Inc.,
Potter V 101
Astoria Light, H. & P. Co.,
People ex rel., v. Cantor. 419
B.
Bacon Coal Co., Block v... 54
Bamett, Inc., Bulova v. . . . 94
Barrett, Rittenberg v 167
Beau Site Co., Waters v... 65
Beekman, Gerard, Matter of. 73
Behrman, Kussold v 682
Berman, Inc., v. American
Fruit Distributing Co 345
Bernstein, 17 & 19 East 95th
St., Inc., V 513
Best V. State of New York. 272
Beth Israel, Matter of 582
Betz, People ex rel. Buffalo
Consistory v 124
Block V. Bacon Coal Co 54
Boate V. Boate 321
Bodine, Owen v 142
Boenig, Dodd v 144
Brown, Blank Realty Co. v. 357
Bryant Co., People v 133
Buckley v. Sharpe .206
Buffalo Consistory, People
ez rel. v. Betz 124
PAOV.
Bulova V. Bamett, Inc.... 94
Burgess Bros. Co., Inc., v.
Stewart 673
Bumham, Matilda E., Mat-
ter of 455
Butler V. Sherwood 483
Byrne v. McDonough 529
c.
Cauda, Louisa S., Matter of. 161
Cantor, People ex rel. As-
toria Light, H. & P. Co. V. 419
Carroll v. Harris 392
Cash, Mary B., Matter of. . 641
Central Union Trust Co.,
Matter of 214
Central Union Trust Co.,
Mehlhop V 464
Chemung Iron & Steel Co.
V. Horn 380
Childs Co., Inc., v. Reardon,
Inc 178
City of Jamestown, Postal
Telegraph Cable Co. v. . . 689
Clarke v. Eighth Avenue
Railroad. Co 707
Cleary, Riccobono v 174
Cocomitros, Jones v 447
Cohoes Power & Light Corp.,
Eavanaugh v 590
Coletti, MoUoy v 177
Cooley V. State of New
York 717
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Xll
TABLE OF CASES REPORTED.
PAGE.
Craig, People ex rel. Mullen
Cont. Co., Inc., v 216
Cutler, Lillian Yongen, Mat-
ter of 203
D.
Dale Engineering Co. v.
State of New York 233
Danziger, 400 Manhattan
Avenue Corp. v 79
Demme, Revillon v 1
De Orvananos, Hennenlot-
ter V 333
Dermont, May v. 106
Dietrich v. Palisades Inter-
state Park Comm 425, 429
Dodd V. Boenig 144
Dodge, Adams v 565
Duff, Michael, Matter of . . . 309
E.
Eclipse Light Co., Harris v. 399
Eighth Avenue Railroad
Co., Clarke v 707
Einhorn, Harris v 387
Einstein, Henry L., Matter
of 452
Equitable Life Assurance
Society, Isaacs v 468
Eygabroad, Kahrs v 395
F.
Falk V. Thurlow 686
Fitzsimmons, Annie, Matter
of 71
Flach, Michaels v 225
Fletcher v. Manhattan Life
Ins. Co 409
Fox, John, Matter of 368
Fredenburg, David, Matter
of 299
Gr. PAOB.
Gaffken, Arthur Henry,
Matter of 693
Garra, International Cheese
Co. V 543
Gilchrist, People ex rel.
Hultman v 651
Giordano, People v 62
Gitzelter v. Grossman 557
Goodwin, Nat C, Matter of. 39
Greaves v. American Insti-
tute for Scientific Re-
search 413
Grey, Jackson v 92
Grossman, Gitzelter v 557
Guaranty Trust Co. v. Meer. 327
Guida V. Pontrelli 181
H.
Haas, Northmann v 384
H. & K. Costume Co., Inc.,
V. Maison Bernard Im-
porting Co., Inc 553
Harris, Carroll v 392
Harris v. Eclipse Light Co. 399
Harris v. Einhorn 387
Heinemann v. State of New
York 265
Hennenlotter v. De Orvana-
nos 333
Hillman, Skolny v 571
Horn, Chemung Iron &
Steel Co. V 380
Huitman, People ex rel., v.
Gilchrist 651
Hutchins, Woolley v 11
I.
International Cheese Co. v.
Garra 543
International Federation of
Workers, Pre' Catelan,
Inc., V 662
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TABLE OF CASES REPORTED.
xiu
International Railway Co. v.
Pickarski 349
Irving National Bank, Was-
sennan v 704
Isaacs V. P^qui table Life As-
surance Society 468
J.
Jackson v. Grey 92
Jones V. Cocotnitros 447
K.
Kalirs V. Eygabroad 395
Kank Realty Co. v. Brown. 357
Kavanaugh v. Cohoes Power
& Light Corp 590
Koith, A. Paul, Matter of. . 86
Kcmmelick v. Kemmelick.. 198
Kibner v. State of New
York 444
Klingenbeck v. Young 121
Knott, Plymouth Rubber
Co. V 605
Kolb, C. Gottlob, Matter of. 361
Konshner, Schubach v 354
Kimtzsch, Gustav H., Mat-
ter of 694
Kupchick V. Levy 533
Kurlander Bros. & H. C. &
S. Co., Potter V 117
Kussold V. Behrman 682
L.
Lee, Benjamin Franklin,
Matter of 511
Lehigh Valley Railroad Co.,
Loomis V 4S0
L#^sser v. Lesser 701
lievy, Kupchick v 533
TJchtenberg, Benjamin, Mat-
ter of 89
Lincoln, Loivell, Matter of. 45
VAQM.
Loew V. Ostreicher Bros... 404
Loomis V. Lehigh Valley
Railroad Co 480
M.
McDonough, Byrne v 529
McGuire, Francis S., Mat-
ter of 81
McMullen, Lena, Matter of. 505
McOwen, Ellen, Matter of. . 151
jradden v. Rosseter 416
Maison Bernard Importing
Co., Inc., H. & K. Cos-
tume Co., Inc., V 553
Manhattan Life Ins. Co.,
Fletcher V 409
Martin, 507 Madison Ave.
Realty Co., Inc., v 315
Matter of Beckman, Gerard 73
Matter of Beth Israel 582
Matter of Burnham, Matil-
da E 455
^Matter of Canda, Louisa S. 101
Matter of Cash, Mary B.. (541
Matter of Central I^iion
Trust Co 214
Matter of Cutler, Lillian
Yongan 203
Matter of Duff, Michael... 309
Matter of Einstein, Henry
L '. 452
Matter of Fitzsimmons, An-
nie 71
Matter of Fox, John 368
Matter of Fredenburg,
David 299
Matter of Gaflfken, Arthur
Henry 693
Matter of Goodwin, Nat C. 39
Matter of Keith, A. Paul. . 86
Matter of Kolb, C. Gottlob. 361
Matter of Kuntzsch, Gustav
H 694
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nv
TABLE OF CASES REPORTED.
PAGE.
Matter of Lee, Benjamin
Franklin 511
Matter of lichtenberg, Ben-
jamin 89
Matter of Lincoln, Lowell. . 45
Matter of McGuire, Francis
S 81
Matter of McMuUen, Lena. 505
Matter of McOwen, Ellen. . 151
Matter of Metzger, Justine
R 313
Matter of Miller, Ella J. . . 283
Matter of Mitchell, John A. 370
Matter of O'Connor v. Pub-
lic Service Commission.. 337
Matter of Prime 720
Matter of Rowley, William
S 375
Matter of Seeley 633
Matter of Shulenburg, John
C 155
Matter of SuUard, George
F 288
Matter of Tymeson, Eugene 643
May V. Dermont 106
Aleer, Guaranty Trust Co. v. 327
Mehlhop V. Central Union
Trust Co , 464
Metzger, Justine R., Matter
of 313
Michaels v. Flach 225
Miller, Ella J., Matter of. . 283
Miller v. Walsh 430
Mitchell, John A., Matter
of 370
Model Building & Loan
Assn. V. Reeves 137
Molloy V. Coletti 177
Mullen Cont. Co., Inc.,
People ex rel. v. Craig. . 216
N.
National City Bank, Slat-
tery &Co. V 48
PAQI.
National Piark Bank v. Old
Colony Trust Co 127
Northmann v. Haas 384
Northway Holding Co., Inc.,
V. Parker 57
0.
O'Connell v. Sugar Products
Co 540
O'Connor, Matter of, v.
Public Service Commis-
sion 337
Old Colony Trust Co.,
National Park Bank v... 127
Ostreicher Bros., Loew v. . 404
Owen V. Bodine 142
p.
Palisades Interstate Park
Comm., Dietrich v.. . .425, 429
Parker, Northway Holdinf?
Co., Inc. V 57
Parucki v. Polish National
Catholic Church 6
Patane v. State of New
York 713
Payne, Sneddon v 537
People v. Bryant Co VS.]
People v. Giordano 62
People V. Zittel 33
People ex rel. Astoria Light,
H. & P. Co. V. Cantor. . . 419
People ex rel. Buffalo Con-
sistory V. Betz 124
People ex rel. Hultman v.
Gilchrist 651
People ex rel. Mullen Cont.
Co., Inc., V. Craig 216
Pfaudler v. Pfaudler Co. . . 477
Pfaudler Co., Pfaudler v... 477
Pickarski, International
Railway Co. v 349
Plymouth Rubber Co. v.
Knott 695
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TABLE OF CASES REPORTED.
XV
Polish National Catholic
Chuiehy Parucki v 6
Pontrelli, Guida v 181
Postal Telegraph Cable Co.
V. City of Jamestown. . . 689
Potter v. American Union
Line, Inc 101
Potter V. Kurlander Bros. &
H. C. & S. Co 117
Pre' Catelan, Inc., v. Inter-
national Federation of
Workers 662
Prime, Matter of 720
Publieker Commercial Alco-
hol Co. V. Roberts 561
Public Service Commission,
Matter of O'Connor v. . . 337
B.
Baporel S. S. Line, Inc.,
Starace & Co., Inc., v. . Ill
Reardon, Inc., Childs Co.,
Inc., V 178
Reeves, Model Building &
Loan Assn. v 137
Revillon v. Demme 1
Riccobono v. Cleary 174
Rittenberg v. Barrett 167
Roberts & Co., Inc., United
States Cast Iron Pipe &
Foundry Co. v 560
Roberts, Publieker Commer-
cial Alcohol Co. V 551
Robinson v. State of New
York 708
Rosseter, Madden v 416
Rowley, William S., Matter
of 375
Rzepecka y. Urbanowski . . 30
s.
Schaefer v. Steuemagel. . . . 546
Schenck, Underbill v 520
Schnbach v. Konshner 354
Seeley, Matter of 633
Sharpe, Buckley y 206
Sherlock v. State of New
York 491
Sherwood, Butler y 483
Shulenburg, John C, Mat-
ter of 156
Skolny v. Hillman 571
Slattery & Co. v. National
City Bank 48
Sneddon v. Payne 537
Spinz Holding Corp., Van
Etten V 436
Starace & Co., Inc., v. Ra-
porel S. S. Line, Inc 111
State of New York, Best v. 272
State of New York, Cooley
V 717
State of New York, Dale
Engineering Co. v 233
State of New York, Heine-
mann v 265
State of New York, Ebner
V 444
State of New York, Patane
V 713
State of New York, Robin-
son V 708
State of New York, Sher-
lock v 491
Steuemagel, Schaefer v. . . . 546
Stewart, Burgess Bros Co.,
Inc., V 673
Stockbridge, 163 East 36th
Street Corp. v 98
Sturges V. Sturges 475
Sugar Products Co., O'Con-
nell V 540
SuUard, Gteorge F., Matter of 288
T.
Taplinger & Co. v. Ward &
Co 115
Thurlow, Falk v 686
Tobias Tile Co., Inc., v.
Topping Realty Co., Inc. 500
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XVI
TABLE OF CASES REPORTED.
Toohey, Wood Mowing ft
Reaping Machine Co. y. . 185
Topping Realty Co., Inc.,
Tobias Tile Co., Inc., v.. 500
Trainor, Weinman v 403
Tymeson, Eugene, Matter of 643
u.
Underhill v. Sehenck 520
United States Cast Iron Pipe
& Foundry Co. v. Roberts
& Co., Inc 560
Urbanowski, Rzepeeka y... 30
V.
Van Etten y. Spinx Hold-
ing Corp 436
W.
Walsh, Miller v 430
Ward & Co., Taplinger &
Co.y. 115
Wassermau v. Irving Na-
tional Bank 704
Waters v. Beau Site Co 65
Weinman v. Trainor 403
Wood Mowing & Reaping
Machine Co. v. Toohey. . 185
WooUey v. Hutchins 11
Y.
Toung, Elingenbeck y 121
z.
Zittel, People v 33
17 & 19 East 95th St, Inc.,
V. Bernstein 513
163 East 36th Street Corp.
V. Stockbridge 98
400 Manhattan Avenue
Corp. V. Danziger 79
507 Madison Ave. Realty
Co.^ Inc^ y. Martin 315
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TABLE OF CASES CITED.
riGB.
A.
Abbott y. Draper 4 Den. 61 549
Abramowitz v. Gray 50 Misc. Rep. 639 559
Adams v. Cordis 8 Pick. 260 4
Adams v. Massey 184 N. Y. 62 304
Alcock V. Hopkins 6 Cush. 484 4
Aldridge V. Aldridge 202 Mo. 565 487
Allen V. AUen 149 N. Y. 280 28
Allen V. Carman-American In-
surance Co 123 N. Y. 6 473
Alsens A. P. C. Works v. Deg-
non Contracting Co 222 N. Y. 34 288
Ament v. Schubert Piano Co. . . 172 App. Div. 423 402
American Bank Note Co. v. State
of New York 64 Ap. Div. 223, 227 249
American Qroeer Pub. Assn. y.
Grocer Pub. Co 51 How. Pr. 402, 403 525
American Malting Co. y. Keitel. 209 Fed. Repr. 351, 358 183
American Washboard Co. y.
Saginaw Co 103 Fed. Repr. 281, 285. . . 656
Ames y. Manhattan Life Ins.
Co 40 App. Diy. 465; affd., 167
N. Y. 584 473
Amoskeag Mfg. Co. y. Spear. . . 2 Sandf. 599, 605, 606 656
Amsink v. Rogers 189 N. Y. 252 334, 335
Anderson y. Hicks 150 App. Div. 289, 293.200, 201
Arnold v. State of New York. . 163 App. Div. 253, 261.498, 500
Asche v. Asche 113 N. Y. 322 28
Ashley v. Dixon 48 N. Y. 430 182
Atchison, T. & S. P. Ry. Co. y.
Gee 139 Fed. Repr. 582, 584.189, 671
Atlantic & Pacific R. R. Com-
pany v. Laird 164 U. S. 393 427
Automobile Ins. Co. v. Guaranty
Securities Corporation 240 Fed. Repr. 222, 225 183
Avery v. Willson 81 N. Y. 341 390
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xviii TABLE OF CASES REPORTED.
B.
Bacon y. Dinsmore 42 How. Pr. 368 172
Baker V. Nat Exchange Bank.. 100 N. T. 31 699
Banks v. Mayor 7 Wall 16 421
Banzer v. Banzer 156 N. Y. 429 304
Barnes v. Chicago Typo. Union. 232 111. 402 671
Barnes v. Stem Bros 89 Misc. Rep 385 70
Barto V. Himrod 4 Seld. 483 244
Bauer v. State of New York. . . 106 Misc. Rep. 1 709
Beck V. Railway Teamsters
Union 118 Mich. 497 671
Bedlow V. New York Floating
Dry Dock Co 112 N. Y. 262, 283 625
Beers v. New York Life Ins. Co. 66 Hun, 75 415
Bell v. Chapman 10 Johns. 183 695
Benedict v. Webb 98 N. Y. 460 28
Bennett v. Byrne 2 Barb. Ch. 216, 219 85
Bernard v. United Life Ins.
Assn 17 Misc. Rep. 115 474
Bimgruber v. Town of East-
chester 54 App. Div. 80 446
Blackstone v. Miller 188 U. S. 189, 204 164
Blake V. Barnes 9 N. Y. Supp. 933 ; 30 N. Y.
St. Repr. 299 409
Blodgett V. Webster 24 N. H. 91 64
Bodine v. Exchange Fire Ins.
Co 51 N. Y. 117, 122, 123...
472, 473, 474
Boon V. Castle 61 Misc. Rep. 474 486
Booth V. Baptist Church 126 N. Y. 215 25
Booth V. Burgess 72 N. J. Eq. 181, 188 183
Borden v. N. Y. C. R. R. Co. . . , 98 Misc. Rep. 574 68
Boucicault v. Boucicault 21 Hun, 431 476
Bowen v. State of New York. . . 108 N Y. 166 499
Boyd V. United States Mortgage
& Trust Co 187N.Y.262 576
Bradt v. Church 110 N. Y. 537 621
Brady v. Cassidy 145 N. Y. 171 390
Brede v. Rosedale Terrace Co. . 216 N. Y. 246 384
Brewer v. Brewer 11 Hun, 147; affd., 72 N. Y.
603 28
Brewster V. Van Ness 18 Johns. 133 209, 210
Briggs V. Partridge 64 N. Y. 357,362 531, 533
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TABLE OF CASES REPORTED.
xix
Brinkeriioff v. Seabury.
Brinkley v. Waleott
Britton v. Ferrin
Brooks V. Dinsmore
Brown v. Cody
Brown v. N. Y. C. R. R. Go
Bmder v. Crafts & D'Amora Co.
Bryan v. McGnrk
Biyaon v. St Helen
Bnekmaster v. Thompson
Bidlen v. State of Wisoonsin. . .
Bnlova v. Bamett, Ine
Burgess v. AUmnoe Ins. Co. .
Burgess v. Bnrgess
Buii^e V. State of New York.
Burks V. State of New York. .
Bum V. Phelps
Burrow v. Mareeau
Burt V. Duteher
Bush v. Prosser
Bushneli y. Bushnell
PAsa.
137 App. Diy. 916; affd.,
201N. Y. 569 22, 26
10 Heisk. (Tenn.) 22 516
171N. Y.235 699
16 Daly, 428 172
23 App. Div. 210 567
44 N. Y. 79 357
79 Misc. Rep. 88 318
200 N. Y. 332 149
79 Hun, 167 443
36N. Y.558 357
240 U. S. 625 164
111 Misc. Rep. 160; 193
App. Div. 161 93
10 Allen, 221 4
3 De Gez, M. & G. 896. ... 479
64 Misc. Rep. 558 499
13 Court of Claims, 163.499, 500
1 Stark. 94 542
124 App. Div. 665, 669. .. . 479
34N. Y. 493 700
11 N. Y. 347, 352 667
15 Barb. 399 476
c.
Campbell y. Beaumont 91 N. Y. 464 304
Cauda y. Totten 157 N. Y. 281 411, 412
Carney y. New York life Ins.
Co 162 N. Y. 453 416
Carow V. Mowatt 2 Edw. Ch. 56 298
Carpenter v. Newland 92 Misc. Rep. 596 230
Carpenter v. State 39 Wis. 271 241
Carr v. Ellison 20 Wend. 177 451
Caseo Bank v. Keene 53 Maine, 103 54
Casey. Case 203 N. Y. 263 531
Casper y. Kuhne 79 Misc. Rep. 411 336
Cass y. Realty Securities Co. . . 148 App. Div. 96, 100 509
Cave V. Osborne 193 Mass. 482 660
Cayuga County v. State of New
York 153 N. Y. 279 247, 260
Cassani y. Title Guar. & Trust
Co. 176 App. Diy. 369; affd.,
220 N. Y. 683 612
Central Bank of Troy v. Hey-
dom 48N. Y.260 620,622,623
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Google
TABLE OF CASES CITED.
Chamberlain V. Taylor 105 N. Y. 184-194. 28
Chapman V. Forbes 123 N. Y. 532, 538 442
Chastainv. TUford 201 N. Y. 338 22
Chads Co. V. Burke 110 Misc. Rep. 103 319
Church v. LaFayette Fire Ins.
Co 66 N. Y. 222 475
Church V. Shultes 4 App. Div. 378 622
City of Geneva v. Henson 195 N. Y. 447 433, 434
City Trust, Safe Deposit ft
Surety Co. v. American Brew-
ing Co 182 N. Y. 285 531
Clarage v. Luphringer 202 Mich. 612 671
Clarke v. Leupp 88 N. Y. 228 304
Clark V. Fosdick 118 N. Y. 7 322, 323
Clark V. West 193 N. Y. 349 288
Clason V. Baldwin 152 N. Y. 210 160
Clay V. Wood 153 N. Y. 134 304, 305
Clift V. Moses 116 N. Y. 144, 158 296
Cluett V. Couture 140 App. Div. 830. 53
Cochrane v. Schell 140 N. Y. 516 25
Coddington v. Lamer 75 App. Div. 293, 532. .200, 201
Cohen v. Teller 93 Penn. St. 123 54
Cole V. Stete of New York.... 102 N. Y 46, 48, 51, 52,
59 245, 246, 250, 254
Collier v. Coates 17 Barb. 471 549
Collins V. Hasbrouck 56 N. Y. 157 541
• Columbus Ry. Power & Light
Co. V. City of Columbus 249 U. S. 399.... 235, 255, 256
Commercial National Bank v.
HeUbronner 108 N. Y. 439 699
Commonwealth v. Haupt 10 Allen, 38 4
Conaughty v. Nichols 42 N. Y. 83 567
Coney v. Town of Gilboa 55 App. Div. Ill 280
Congregation Kehal Adath v.
Universal Building & Construc-
tion Co 134 App. Div. 368, 370.411, 412
Connoss v, Meir 2 E. D. Smith, 314 567
Conrow v. Little. . , 115 N. Y. 394 516
Converseville Co. v. Chambers-
burg Woolen Co 14 Hun, 509 700
Coope V. Lowerre 1 Barb. Ch. 45 155
Cornwall v. Cornwall 1 Dem. 1 469
Cortland County v. Herkimer
County 44N.Y.26 397
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zed by Google
TABLE OF CASES CITED. xxi
PAGB.
Corwith Fint State Bank y.
Williams 143 Iowa, 177 54
Covell V. Weston 20 Johns. 414 297
Cowenhoven V. Ball 118 N. Y. 234 286
Crackanthorpe v. Sickles 156 App. Div. 753 166
Grain v. Cavana 36 Barb. 410 160
CrandaU v. Shaw 2 Bedf . lOO 459, 462
Crayton v. Larabee 220 N. Y. 493 639
Gronin v. Manhattan Transit Go. 124 App. Div. 543 55, 56
Gruger V. McLaiiry 41 N. Y. 219 619
Gruikshank v. Goodwin 20 N. Y. Supp. 757 353
Gtinard v. Francklyn Ill N. Y. 511 568
Gunningham v. Pattee 99 Mass. 248 451
Curran v. Galen 152 N. Y. 33-37 670
Cutter v. Ghidebrod Bros. Go.. 36 App. Div. 362; 46 App.
Div. 605; afld., 168 N. Y.
512 479,480
D.
Dale V. Guaranty Trust Co. .... 168 App. Div. 601 512
Daly V. Comwell 34 App. Div. 27 182
Daly V. Wolaneck 29 Misc. Rep. 162 408
Dana v. Murray 122 N. Y. 604 28
Davis V. Davis 75 N. Y. 221 701, 703
Davis V. Grand Rapids Fire Ins.
Go 7 App. Div. 403, 405 692
Davis V. MacMahon 161 App. Div. 458; affd.,
214 N. Y. 614 25
Davis V. Solomon 25 Misc. Rep. 695 353
Davis V. Zimmerman 91 Hun, 492 581
Day V. United Stetes 245 U. S. 159 256
Deeves & Sons v. Manhattan Life
Ins. Go 195 N. Y. 324 390
DeJong V. Behrman Go 148 App. Div. 37 182
Delafield v. Shipman 103 N. Y. 463. 25
Delage v. Normandeau. 9 Queb. Q. B. 93 183
Denton V. Denton IJohns. Ch. 365, 441 476
DePeyster v. Michael 6 N. Y. 467 616
Despard v. Walbridge 15 N. Y. 375 515
Devisees of Van Rensselaer y.
Executor of Platner 2 Johns. Gas. 26 616
Dexheimer v. Gautier 34 How. Pr. 471 489
Dexter v. Norton 47 N. Y. 62-65 326
Dickey v. Mutual Film Corp 160 N. Y. Supp. 609 524
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xxii TABLE OF CASES CITED.
Dillon V. Anderson 43 N. Y. 236 398
DiMarco v. State of Nenv; York. . 110 Misc. Rep. 426 428
Dodge V. Cornelius 168 N. Y. 242 66
Doran v. Chase 2 YHdy. Notes (Pa.) 609.. 542
Dorrer v. Town of Callicoon 183 App. Div. 186 280
Doad V. Huntington Hebrew
Congregation 178 App. Div. 748. ... 148
Dougherty v. Thompson 167 N. Y. 472 25
Dowling V. Hastings 211 N. Y. 202 352
Drake v. New York Suburban
Water Co 36 App. Div. 276 442
Drake v. Seaman 97 N. Y. 230 357
Draper v. Oswego County F. R.
Assn 190 N. Y. 12, 16 286
Duff V. Rodenkirchen 110 Misc. Rep. 575 ; aff d.,
193 App. Div. 898 311
Duncan v. Jones 32 Hun, 12 173
Duplex Printing Press Co. v.
Deering U. S. Supreme Court Ad-
vance Opinions, February
1, 1921, p. 176 678
Dwight V. Germania Life Ins.
Co 84 N. Y. 493, 506. .568, 569, 670
Dworsky v. Amdtatein 29 App. Div. 274 160
Dwyer v. Slattery 118 App. Div. 346 570
Dykers v. Townsend 24 N. Y. 67 ....531,533
E.
Educational Films Corp. v. Lin-
coln & P. Co., Inc 192 App. Div. 621 169
Ehrgott V. City of New York. . 96 N. Y. 264, 277 568
EDiott V. Kennedy 26 How. Pr. 422 376
Eppens, Smith & Weimann Co.
V. Littlejohn 164 N. Y. 187 382
Equitable Trust Co. v. Keene. . Ill Misc. Rep. 544 329
Erie R. R. Co. v. City of Buffalo. 180 N. Y. 197 9
Evans v. Evans 69 Misc. Rep. 86. 486
Ex parte Willocks 7 Cow. 402 9
P.
Fair v. Kenny 103 Misc. Rep. 412 376
Farenholtz v. Meinshausen 181 App. Div. 474 695
Fargo V. McVicker 55 Barb. 437 172
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TABLE OF CASES CITED. xxiii
Farmers Loan & Trust Co. y.
Kip 192 N. Y. 266, 278 167
Fay V. Marx 2 Bradbury PL & Pr. 81.. 408
Fealy v. Bull 11 App. Div. 468 402
Fearon v. Earl of Aylesford. . . 14 Q. B. Div. 792 323
Ferguson v. Crawford 70 N. Y. 253 377
Ferguson v. Town of Lewisboro. 213 N. Y. 141 446
Fero V. Fero 62 App. Div. 470 201
Fink V. Wallach 47 Misc. Rep. 242 376
Finnegan v. McGuffog 139 App. Div. 899 ; affd.,
203 N. Y. 342 140
First Construction Co. v. State
of New York 221 N. Y. 295 434
First National Bank v. American
Exch. Nat Bank 49 App. Div. 349 ; affd., 170
N. Y. 88 53
Fisher v. Corwin 35 Hun, 253 692
Fitzsimmons v. City of Brooklyn 102 N. Y. 538 271
Flansburg v. Town of Elbridge. 205 N. Y. 423 279
Fleischman v. Furgueson 223 N. Y. 235 606
Fleischman v. Plock 19 Misc. Rep. 649 549
Fogg V. Edwards 57 How. Pr. 200 504
Foose V. Whitmore 82 N. Y. 405 305
Forster v. Kane 1 Dem. 67 " 462
Foshay v. Robinson 137 N. Y. 134 441
Foster v. Retail Clerks' Protec-
tive Assn 39 Misc. Rep. 48, 57 189
Fox V. Hawkins 150 App. Div. 801 532
Francklyn v. Sprague 10 Hun, 689 700
Frank v. Morewood Realty Hold-
ing Co 89 Misc. Rep. 425 100
Fraves v. American Exchange
Bank 17 N, Y. 205 51
Freeholders v. Strader 18 N. J. Law, 108 429
French v. Dauchy 134 N. Y. 543 297
Frey & Son, Inc. v. Sherburne
Co 193 App. Div. 849 132
Frohman v. Fitch 164 App. Div. 231 523
Fry V.Bennett 6 Sand. 54 567
Fullerton v. Gaylord 30 N. Y. Sup. Ct 551, 557. 5f8
Fulton Light, H. & P. Co. v.
StoteofNewYork 200 N. Y. 400 436
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xxiv TABLE OP CASES CITED.
Gabrielson v. Waydell 135 N. Y. 1 589
Galuflha v. Galusha 116 N. Y. 035 322, 323, 324
Ganson v. Tifft 71 N. Y. 54 541
Gardiner v. Gardiner 3 Abb. N. C. 1 476
Garvey v. McDevitt 72 N. Y. 556 28
Gass V. Souther 46 App. Div. 256 j affd,, 167
N. Y. 604 441
Gay V. Ulrichs 136 App. Div. 809 347
Gee V. Chase Mfg. Co 12 Hun, 630 5G8
General Baking Co. v. Daniell . . 181 App. Div. 501 59
George Jonas Glass Co. v. Glass
Bottle Blowers Assn. of U. S.
& Canada 72 N. J. Eq. 653; affd., 77
id. 219 671
Gluckman v. Darling 85 N. J. L. 457 54
Goldfelder v. Greenberg. ..;... 189 App. Div. 184 55
Goldstein v. Pullman Co 220 N. Y. 549, 552, 553. .. . 539
Goodman v. Alexander 165 N. Y. 289 232
Goodwin v. Coddington 154 N. Y. 283, 286 304
Goodyear Tire & Rubber Co. v.
Vulcanized Products Co 228 N. Y. 118, 125 390
Gotthelf V. Krulewitch 153 App. Div. 746 351
Gourley v. Linsenbigler 51 Penn. St. 345 489
Grafton v. Cummings 99 U. S. 100 532
Graham v. Healy 154 App. Div. 76 , . . . 549
Graham v. Van Wyck 14 Barb. 531 160
Grant v. Healy , 10 Fed. Cas. 978 4
Greenland v. Waddell 116 N. Y. 234, 240 72
Griffin v. Kinsley 75 111. 411 516
Griswold v. Haven 25 N. Y. 595 138
Groat V. Gile 51 N. Y. 442 700
Grymes v. Hone 49 N. Y. 17 488
Guiteman v. Davis 45 Barb. 576 4
Guttag V. Shatzkin 194 App. Div. 509 517
H.
Haddock v. Haddock 201 U. S. 662 130
Hadfield v. Colter 188 App. Div. 563 391
Haffey v. Lynch 143 N. Y. 241 687, 688
Hagar v. Clark 78 N. Y. 45 102
Hager v. Henneberger 83 Misc. Rep. 417 532
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TABLE OP CASES CITED. xxv
Haight V. BriBbin 100 N. Y. 219 297
Hampton & B. R. & Lumber Co.
V. Sizer 31 Misc. Rep. 499 700
Harbeck v. Vanderbilt 20 N. Y. 395, 397 351, 352
Harriott v. Plimpton 166 Mass. 586 183
Hartford v. Greenwich Bank. . . 157 App. Div. 448 53
Hasbrouek v. New York Central
&H. R. R. R. Co 202 N. Y. 363 68, 539
HascaU V.King 162 N. Y. 134 22
Hauselt V. Patterson 124 N. Y. 349 297
Hawkins v. Union Trust Co. . . . 187 App. Div. 472 44
Haynes v. Aldrich 133 N. Y. 287 515
Haynes v. Sherman 117 N. Y. 433 20, 28
Heavey v. Commercial National
Bank 27 Utah, 222 52, 53
Heffner v. Dawson 63 111. 403 54
Heitkamper v. Hoffmann 99 Misc. Rep. 543-546 580
Heller v. Levinson 166 App. Div. 673 377
HeUing v. Boss 121 N. Y. Supp. 1013 577
Hendricks v. Isaacs 117 N. Y. 411 159
Hennessy v. Patterson 86 N. Y. 91 25
Heuman v. Powers Co 226 N. Y. 205 69
Hibernia National Bank v. La-
combe 84 N. Y. 367 335
Hibernia Savings & Loan Society
v. San Francisco 72 Pac. Repr. 920; affd., 200
U. S. 310 422
Higgins Co. v. Higgins Soap Co. 144 N. Y. 462, 468 479
Hill V. Moore 131 App. Div. 365 296
Hitchman Coal & Coke Co. v.
Mitchell 245 U. S. 229 577, 678
Hobson V. Hale 95 N. Y. 588, 607 13, 28
Holbrook v. Nesbitt 163 Mass. 120, 125 656
Holland-Dale Garden Company,
Inc. V. State of New York. . . 113 Misc. Rep. 219 709
Holley V. Chamberlain 1 Redf. 333 83
Holmes v. North German Lloyd
S. S. Co 184 N. Y. 280 539
Holthausen v. Kells 18 App. Div. 80 294
Hone's Exrs. v. Van Schaick. ... 20 Wend. 564 20
Hood V. Hood 85N. Y.561 297
Hosford V. BaUard 39 N. Y. 147 618
Hostetter v. Park 137 N. Y. 30 395
Howard V. Dougherty... 3 Redf. 535 459
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xxvi TABLE OF CASES CITED.
WAQM.
HubbeU V. Yonkers 104 N. Y. 434 282
Hnngarian General Credit Bank
V. Titus 182 App. Div. 826 695
Hunt V. BaUey 39 Mo. 267 615, 516
I.
Imperator Realty Co. v. Tull. . . 228 N. Y. 447 320
Internoscia v. Bonelli 28 Queb. Super. 58 183
Irish V. Nutting 47 Barb. 370, 385, 387.487, 489
Iron Mountain, etc., Rd. ▼.
Johnson 119 U. S. 608, 611 32
Israel v. Israel 38 Misc. Rep. 335, 338 83
Ives V. South Buffalo Railway
Co 201 N. Y. 271, 311 688
J,
Jaekson V. Chase 15 Johns. 354 692
Jaekson v. Collins 11 Johns. 1 616
Jaekson v. Decker 11 Johns. 418 695
John A. Roebling's Sons Co. of
N. Y. V. Erickson 261 Fed. Repr. 986 589
Johnson y. Phoeniz Bridge Co. . 197 N. Y. 316 576
Johnson v. Standard Transpor-
tation Co 188 App. Div. 934 589
Johnston v. Donvan 106 N. Y. 269 440
Jones v. Hamersley 2 Dem. 286 459
K.
Kahlen v. State of New York.. 223 N. Y. 383 434
Kalem v. Harper Bros 222 U. S. 55 526
Kalish V. Kalish 166 N. Y. 368 22
Kammerrer v. Ziegler 1 Dem. 177 294
Karsch v. Pottier & S. Mfg. &
Imp. Co 82 App. Div. 230, 233 10
Kenney v. State of New York. . 222 U. S. 525 365
KeUey v. St Michaels R. C.
Church 148 App. Div. 707 10
Kellogg V. Sowerby 190 N. Y. 370 677
Kelly V. Metropolitan Railway
Company (1895) 1 Q. B. 944 427
KeUy V. Sheehy 60 How. Pr. 439 33
Kennedy v. City of New York. . 196 N. Y. 19, 23 515
Kentucky Distilleries, etc., v.
Wathen 110 Fed. Repr. 641, 645. .. . 656
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TABLE OF CASES CITED. xxvu
Kershaw t. Kelaey 100 Mass. 561 695
Kieman v. The Dutchess County
Mutual Insurance Co 150 N. Y. 190 286
KUlie \. Dannert 232 Fed. Repr. 104 351
King V. Hudson River Realty Co. 210 N. Y. 467 320
King V. Village of Fort Ann. . . 180 N. Y. 496 279
Klein V. Beach 239 Fed. Repr. 108; 232 id.
240 523
Klein t. Mechanics & Traders
Bank 145 App. Div. 617 532
Knarston v. I^Ianhattan life
Ins. Co 140 Cal. 57 287
Knox V. Jones 47 N. Y. 389 25, 26
Knudsen v. Benn 123 Fed. Repr. 636 671
Kopelman v. Gritman 76 Misc. Rep. 188 100
Kom ▼. lipman 201 N. Y. 404 347
Krim Realty Corporation v. Var-
vori 97 Misc. Rep. 407 319
Kromer v. Heim 75 N. Y. 574 120
Kunkel v. MacGill 56 Md. 120 374
Knriger v. Joest 22 Ind. App. 633 54
L.
LaddT. AikeU 50 N. Y. Super. Ct 150, 155 4
La£Fey V. Kaufman 134 Cal. 391 550
Lane v. Town of Hanco<^k 142 N. Y. 510 280, 282
Langdon t. New York, L. E. &
W. R. Co 15 N. Y. Supp. 255 483
Langstroth v. Turner Cypress
LomberCo 162 App. Div. 818, 823;
affd., 220 N. Y. 706. .531, 533
Larkin v. Watson Wagon Co. . . 68 App. Div. 86 61
Lasher ▼. Heist 126 111. App. 82 515
Lawrence v. Cooke 104 N. Y. 632 305
Lawrence v. Ely 38 N. Y. 42 692
Lawrence v. French 25 Wend. 443 542
Lawrence v. Lawrence 32 Misc. Rep. 503; 172 N.
Y. Supp. 146 160, 578
Lawrenee t. litUefield 215 N. Y. 561 91
Leaver v. Gauss 62 Iowa, 314 486
Ledwith v. Ledwith 1 Dem. 154 82
Legal Tender Case 110 U. S. 421, 444; 4 Sup.
Ct 122, 28 L. Ed. 204. . . 423
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xxviii TABLE OF CASES CITED.
PAQBw
Lehigh Valley R. R. Co. v.
Canal Board 204 N. Y. 471 250, 253
Lent V. Howard 89 N. Y. 169 72
Leonard v. Leonard 145 Mich. 563 486
Leonard v. Whitson 34 Ind. App. 383 183
Leone v. Booth Steamship Co.,
Ltd 189 App. Div. 185 589
Levy V. Walker. 10 Ch. D. 436, 448 656
Lewis V. Whitnell. .* 21 Ky. 190 550
Light V. Light 124 App. Div. 567 702
Linton v. Unexcelled Firewori<;''
Co 124 N. Y. 533 567
Locke V. State of New York. . , 140 N. Y. 480, 481 428
Lodge V. Spooner 8 Ghray, 166 4
Loomis V. Lehigh Valley R. R.
Co 208N. Y. 312;240U. S. 43. 482
Loomis V. Semper 38 Misc. Kep. 570 147
Losec V. Buc.Vanan 51 N. Y. 47G, 484 359
Lusk V. ITastings 1 Hill, 656 35.1
Lyon V. B.?ard of Supervisor.?.. 115 App. D»v. 193. 640
Lyon V. Olell 65 N. Y. 28 621, 622
M.
McClelland v. Mutual Life Ins.
Co 217 N. Y. 33«, 346 et seq. . 473
McCuUoch V. Maryland 4 Wheat. 316, 4 L. Ed. 579. 422
McDowell V. Starobin El. Su]i-
ply Co 190 App. Div. 676 391
McGarry v. City of Buffalo. ... 53 N. Y. St. Repr. 882. .. . 402
McGuflan V. Dinsmore 4 Abb. N. C. 241 171
Machson v. Katz N. Y. L. J., Jan. 11, 1921. 515
519
Mackall v. Olcott 93 App. Div. 282 412
Madison Ave. Baptist v. Baptist
Church in Oliver St 46 N. Y. 131 583
Magnin v. Dinsmore 62 N. Y. 35, 44 70
Main v. Feathers 21 Barb. 646 616
Manners v. Morosco 252 U. S. 317-325, 326 528
Manners v. Triangle Film Corp. 247 Fed. Repr. 301, 303 524
Mariani Bros., Inc., v. Wilson,
Sons & Co., Ltd 188 App. Div. 617. . . . .112, 113
Marine v. Jauncey 1 Barb. 486 7O0
Marks v. Townsend 97 N. Y. 590 407
Martin v. Franklin 4 Johns. 124 4, 5
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TABLE OF CASES CITED. xax
PAOB.
Martin V. New York life Ins. Co. 148 N. Y. 117 269
Mast, Poos & Co. V. Stover 177 U. S. 485 131
Matsell V. Flanagan 2 Abb. Pr. (N. S.) 459, 461. 526
Matter of Albany R. R. Co.... 64 App. Div. 257; 170 N.
Y. 619 254
Matter of Altman 87 Misc. Rep. 255, 260 76
Matter of Ammarell.v 38 Misc. Rep. 399 41
Matter of Archer 51 Misc. Rep. 260 42
Matter of Anowsmith 162 App. Div. 623 369
Matter of Austin 109 Misc. Rep. 584 366
Matter of Barbour 185 App. Div. 445,454.... 607
509
Matter of Bentley 31 Misc. Rep. 656 36^
Matter of Berry 154 App. Div. 609; affd.,
209 N. Y. 540 22, 26
Matter of Bierstadt 178 App. Div. 836 167
Matter of Bishop 82 App. Div. 112, 115. .507, 509
Matter of Blun 176 App. Div. 189 167
Matter of Bowers 183 N. Y. Supp. 137 167
Matter of Brady Ill Misc. Rep. 492 43
Matter of Bronson. 150 N. Y. 1, 8. . . .506, 508, 509
Matter of Bnmdage. 31 App. Div. 348 363
Matter of Bnrdick 41 Misc. Rep. 346 83
Matter of Butterfleld 133 N. Y. 473 22, 25
Matter of Campbell 123 App. Div. 212 ; affd.,
192 N. Y. 312 155
Matter of Choate 105 App. Div. 356 457
Matter of City of Niagara FaUs. 229 N. Y. 333 343
Matter of City of Yonkers 117 N. Y. 564 433
Matter of Cohn 187 App. Div. 392 44
Matter of Colgrove 221 N. Y. 455 22
Matter of Cooley 186 N. Y. 220 509
Matter of Crickard 52 Misc. Rep. 63, 66 83
Matter of Curser 89 N. Y. 401 153
Matter of D'Agostino 88 Misc. Rep. 371, 375 152
Matter of Delano 176 N. Y. 486; affd., sub
nom. Chanler v. Kelsey,
205 U. S. 466 163
Matter of DePeyster. 210 N. Y. 216 74
Matter of Dobson 146 N. Y. 357 640
Matter of Dowa 167 N. Y. 227; affd., sub
nom. Orr v. Gillman, 183
U. S. 278. 163
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XXX TABLE OF CASES CITED.
PAOB.
Matter of Dnrban 176 App. Div. 688; affd.,
220 N. Y. 589 462
Matter of Eddy 10 Misc. Rep. 211 459, 462
Matter of Enston 113 N. Y. 174 506
Matter of Prazier N. Y. L. J., Mar. 28, 1912 . . 163
Matter of Gardner 140 N. Y. 122 304, 305
Matter of Goldenberg 187 App. Div. 692 311, 312
Matter of Gould 19 App. Div. 352; 156 N. Y.
423 363
Matter of Gould Coupler Co. . . . 79 Hun, 206 443
Matter of Gustow 220 N. Y. 373 83
Matter of Hanford 113 Misc. Rep. 639 456
Matter of Haxtum 102 N. Y. 157 294
Matter of Hazard 228 N. Y. 26 365
Matter of Hellman 172 N. Y. Supp. 671; affd.,
187 App. Div. 934; affd.,
226 N. Y. 702 47
Matter of Henderson 157 N. Y. 423 377, 378
Matter of Hermann 178 App. Div. 182 378
Matter of Hitchcock 222 N. Y. 57 22, 72, 73
Matter of Howe 86 App. Div. 286 ; affd., 176
N. Y. 570 165
Matter of Hull Ill App. Div. 322 ; aff4,
186 N. Y. 586 163
Matter of Hunter 189 App. Div. 805 150
Matter of International Railway
Company v. Public Service
Commission 226 N. Y. 479 342
Matter of James 144 N. Y. 6, 10 . . .164, 506, 507
Matter of Jensen v. Southern
Pacific Co 215 N. Y. 514, 522 262
Matter of Kemp N. Y. L. J., Mar. 3, 1920. . 367
Matter of Kent N. Y. L. J., June 17, 1920. . 367
Matter of Klein 92 Misc. Rep. 318 363
Matter of Knoedler 140 N. Y. 377 453
Matter of Lamb 139 N. Y. Supp. 685 83
Matter of Lansing 182 N. Y. 238, 247 164, 312
Matter of Lee 220 N. Y. 532 83
Matter of Lichtenberg 171 N. Y. Supp. 570 89, 90
Matter of Livingston 151 App. Div. 1 314
Matter of Lydig 113 Misc. Rep. 263 164
Matter of McGillicuddy 194 App. Div. 28 363
Matter of MacDowell 217 N. Y. 454, 460 77
Matter of Mahon v. Board of
Education 171 N. Y. 263 250
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TABLE OF CASES CITED. xxxi
VkQU.
Matter of Majot 199 N. T. 29 » 164
Matter of Mancini 89 Misc. Rep. 83 83
Matter of Martin 211 N. Y. 328 230
Matter of Moran 5 Misc. Rep. 176 153
Matter of Munsoa^. 70 Misc. Rep. 461 41
Matter of Naylor 189 N. Y. 556; affg. 120
App. Div. 738 311
Matter of Norwood Ill Misc. Rep. 530 378
Matter of Nuns 176 N. Y. Supp. 858 402
Matter of Ormsby v. Bell 218 N. Y. 213, 216 658
Matter of Parker 226 N. Y. 260 166
Matter of Parsons 117 App. Div. 321 454
Matter of Peck N. Y. L. J., Mar. 3, 1920. . 367
368
Matter of Penfold 216 N. Y. 163 365
Matter of Pine 133 App. Div. 431 294
Matter of Plath 56 Hun, 223 457, 459
Matter of Porter 67 Misc. Rep. 19 88
Matter of Quinby v. Public Serv-
ice Commission 223 N. Y. 244 343, 344
Matter of Roberts 214 N. Y. 369 294
Matter of Rockefeller 117 App. Div. 786-791 ; 223
N. Y. 563 76, 77, 78
Matter of Romaine 127 N. Y. 80 607
Matter of Richards 182 App. Div. 572, 575 508
Matter of Sclmabel 202 N. Y. 134 40
Matter of Seaman N. Y. L. J., Dec. 5, 1913. . 163
Matter of Security Trust Co... 221 N. Y. 213, 219.372, 373, 374
Matter of Severance 106 Misc. Rep. 710 378
Matter of Shedd 60 Hun, 367 159
Matter of Sherman 222 N. Y. 540 167
Matter of Shonte 229 N. Y. 374, 378, 382. . . 379
456, 461
Matter of Slosson 216 N. Y. 79 164
Matter of Snook 2 Hilt. 566 479
Matter of Steam 9 N. Y. Supp. 445 459
Matter of Terry 218 N. Y. 218, 223 165
Matter of Thaw 182 App. Div. 368, 372. .22, 73
Matter of Thayer 193 N. Y. 430 509
Matter of Tilden 98 N. Y. 434 377, 378
Matter of Tone 186 App. Div. 363 205
Matter of Totten 179 N. Y. 112 363
Matter of Townsend 215 N. Y, 442 377, 378
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xxxu TABLE OF CASES CITED.
PAOI»
Matter of Troy Press Co 94 App. Div. 614; affd.,
179N. Y. 529 639
Matter of Turner N. Y. L. J., June 17, 1920. . 367
Matter of VanderbUt 50 App. Div. 246 ; affd., 163
N. Y. 597; 187 App. Div.
716 163, 366
Matter of Vandewater 115 N. Y. 669 83
Matter of Vassar 127 N. Y. 1, 12 363
Matter of Village of Olean 135 N. Y. 341 433
Matter of Wall 76 Misc. Rep. 106 369
Matter of Wanninger 3 N. Y. Supp. 137 459
Matter of Washboume 180 N. Y. Supp. 507; affd.,
190 App. Div. 940; affd.,
229 N. Y. 518 365
Matter of Watson 215 N. Y. 209, 211; 226 id.
384, 401; affd., U. S. Sup.
Ct, N. Y. L. J., Dee. 11,
1920 40,41,364, 366
366, 367, 509
Matter of Wentworth 230 N. Y. 176 512
Matter of Whiting 150 N. Y. 27-30 507, 509
Matter of Wiemann's Estate... 179 N. Y. Supp. 190 363
Matter of WUcox 194 N. Y. 288 26
Matter of Wilson 92 Hun, 318 155
Matter of Wolfe 181 App. Div. 35 456
Matter of Wyckoff 67 Misc. Rep. 1 86
Matter of Zborowski 213 N. Y. 109 166
Matter of Zimmerman 110 Misc. Rep. 295 365
Matthews v. Brooklyn Savings
Bank 208 N. Y. 508 363
Mead v. Young 4 T. R. 28 51
Meekins v. Kinsella 152 App. Div. 32 200, 202
Meigs V. Roberts 162 N. Y. 371, 378 148
Mentz V. Newwitter 122 N. Y. 491 355, 532
Mertz V. Hubbard 75 Kan. 1 532
Message Photo Play Co., Inc., v.
Bell 179 App. Div. 13, 19, 20. . . 658
Meyers v. Liebeskind 46 Misc. Rep. 272 100
Meyer v. Redmond 205 N. Y. 478 531, 533
Michaels v. Hillman 112 Misc. Rep. 395 580
Miller v. State of New York 164 App. Div. 522; affd.,
223 N. Y. 690 434
Milliman v. Huntington 68 Hun, 258 356
Mills V. Davis 53 N. Y. 349 209
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TABLE OF CASES CITED. xxxiu
PAOB.
Mills V. Hunt 20 Wend. 431-433 633
Miners & Merchants' Bank y.
Ardsley Hall Co 113 App. Div. 194 10
Mishkind V. Sidorsky 189 N. Y. 402 377
Mitchell V. Schroeder 94 Misc. Rep. 270 562
Monk V. Town of New Utrecht. 104 N. Y. 552 282
Montwil V. Am. Locomotive Co. 169 N. Y. Supp. 21 415
Monypeny v. Monypeny 202 N. Y. 90 21
Moore v. Harter 67 Ohio St. 260, 254 516
Moore V. HUlabrand 16 Abb. N. C. 477 700
Moore v. St Thomas Church. . . 4 Abb. N. C. 51 '. . 9
Morehouse v. Cooke 1 Hopk. Ch. 226 83
More V. Deyoe 22 Hun, 208, 223 398
Mortimer v. Chambers 63 Hun, 335 297
Mott V. Ackerman 92 N. Y. 539 73
Moultrie V. Hunt 23 N. Y. 394 205
Muhlenbrinck v. Pooler 40 Hun, 526 451
Mundorff v. Wangler 57 How. Pr. 372 294
Munn & Co. v. Americana Com-
pany L, R. A. 1916D, 116, 117. . . 525
Munro ▼. State of New York. . . 223 N. Y. 208-214. . . .247, 248
249, 250, 253, 261
Munro V. Tousey 129 N. Y. 38, 41, 42 656
Murdock V. Gould 193 N. Y. 369 319
Murphy v. Estate of Skinner. . 160 Wis. 554 54
Murphy v. Holmes 87 App. Div. 369 232
Mutual Life Ins. Co. v. Newell. . 78 Hun, 293 143
N.
Nash V. Wetmore 33 Barb. 155 692
Nathan v. Woolverton 69 Misc. Rep. 425 ; affd., 147
App. Div. 908 70
National Bank of Commerce ▼•
First National Bank 152 Pac. Repr. 596 54
National Protective Association
V. Cnmming 170 N. Y. 315-324.. . .186, 187
190, 670
Navarre H & I. Co. v. American
Appraisal Co 156 App. Div. 795, 797 531
Navratil v. Bohm 26 App. Div. 460 61
Nelson v. Kerr 59 N. Y. 224 209, 210, 211
New York Central Iron Works
Co. V. Brennan 105 N. Y. Supp. 865-869. . 581
New York Rubber Co. v. Rothery 107 N. Y. 310 287
iii
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xxxiv TABLE OF CASES CITED.
0-
Obecny v. Goetz 116 App. Div. 807 206
O'Beime v. Miller 35 Misc. Rep. 337 61
Obemdorf v. Farmers' Loan &
Trust Co 71 Misc. Rep. 64 159
O'Brien v. Neubert 3 Dem. 166 155
O'Hara v. State of New York. . 112 N. Y. 146 250
Olin V. Bate 98X11.63 479
Oliver Lee & Co.'s Bank v. Wal-
bridge 19 N. Y. 136 6
O'Neill V. General FUm Co 171 App. Div. 854-867. ... 529
O'Neilv. State of New York... 223 N. Y. 40 271
Osterhoudt v. Osterhoudt 48 App. Div. 74, 77 83
Ostrander v. Reis 206 N. Y. 448, 464, 455. ... 150
Oswego & Syracuse R. R. Co. y.
State of New York 186 N. Y. 384; affd., 226
N. Y. 361 254
Oswego Starch Factory Co. v.
Dolloway 21 N. Y. 449 59
Otis Steel Co., Limited, v. Local
Union No. 218 of Cleveland,
Ohio 110 Fed. Repr. 698 671
P.
Palmer v. State of New York.. 174 App. Div. 933; affd.,
220 N. Y. 666 436
Parker v. Bradley 46 N. Y. Super. Ct. 244. ... 209
Parucki v. Polish National Cath-
olic Church of the Holy
Mother of the Rosary 177 N. Y. Supp. 206 7
Peck V. HiDer 30 Barb. 666 692
Pennoyer V. Neff 95 U. S. 714 130
People V. Cancemi 18 N. Y. 128 66
People V. Cosmo 205 N. Y. 91 65
People V. D'Argencour 95 N. Y. 624 66
People V. Glen 173 N. Y. 396 63
People V. Home Ins. Co 92 N. Y. 328 608
People V. Melvin 1 Yates Sel. Cas. 81 680
People V. Mutual Gas Light Co. 74 N. Y. 434, 436 171
People V. N.Y. C. R. R. Co.... 24 N. Y. 486 244
People V. New York & Manhat-
tan Beach R. Co 84 N. Y. 669 38
People V. Rathbun 21 Wend. 509 66
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TABLE OF OASES CITED. xxxv
People V- Sharp 107 N. T. 427 134
People y. Toledo 150 App. Div. 403 65
People V. Tweed 6 Hun, 382, 389 476
People V. Van Rensselaer 9 N. Y. 330, 334 611, 616
People V. Weser N. Y. L. J., Dec. 3, 1919. . 38
People V. Wiechers 179 N. Y. 459 65
People V. Willett 213 N. Y. 368, 375 64
People ez rel. Adams y. West-
brook 61 How. Pr. 138 294
People ex rel. Ajas y. Board of
Education 104 App. Div. 162, 164 659
People ez rel. Alpha P. C. Co.
V. Knapp 230 N. Y. 48 508
People ez reL Bank of New York
V. Board of Supervisors, etc. . , 37 N. Y. 21, 23 421, 422
People ez rel. Beck v. Coler. ... 34 App. Div. 167 224
People ez rel. Boenig v. Hege-
man. 220 N. Y. 118 148
People ez reL Bolton v. Albert-
son 55 N. Y. 55 243
People ez rel. Brush v. Brown. . 20 Wkly. Dig. 516 83
People ez reL Burbj v. Howland 155 N. Y. 280 244
People ez rd. Duffy v. Gilchrist. N. Y. L, J., Aug. 16, 1919;
affd., 190 App. Div. 898. 658
People ez reL Durant Land Imp.
Co. V. Jerohnan 139 N. Y. 14, 17 659
People ez rel. Empire City Trot-
ting Club V. State Racing
Comm. 190 N. Y. 31, 33, 34 658
People ez rel. Faile v. Ferris. . 76 N. Y. 329 217
People ez reL Garrison v. Nixon. 229 N. Y. 575, 586 343, 345
People ez reL Gas-Light Co. v.
Common Council 78 N. Y. 56 217
People ez reL Gnidct v. Green. . 66 Barb. 630 225
People ez rel. Hatch v. Reardon. 184 N. Y. 431, 449; affd.,
204 U. S. 152, 162... 507, 509
People ez reL Jackson y. Potter. 42 How. Pr. 260, 261, 262,
270;affd., 47N,Y. 375.. 80
People ez reL Knick. Press v.
Barker 87 Hun, 341 59
People ez reL Lentilhon v. Coler. 61 App. Div. 223; 168 N.
Y. 6 224, 225
People ez reL McClelland v.
DowUng 55 Barb. 197 217
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xxxvi TABLE OF CASES CITED.
People ez rel. McMaekin v.
Police Commissioners 107 N. Y, 235 217
People ex rel. Met. St Ry. Co.
V. Tax Commissioners 174 N. Y. 434, 437. , 510
People ex rel. Mizpah Lodge ▼.
Burke 228 N. Y. 245 126, 128
People ex rel. Onondaga County
Savings Bank v. Butler 147 N. Y. 164, 168, 169. ... 80
People ex rel. Palmer v. Travis. 223 N. Y. 150 433, 435
People ex rel. Pruyne v. Walts. . 122 N. Y. 238 83
People ex rel. Wall & Hanover
St Realty Co. v. Miller 181 N. Y. 328 74, 508
People ex reL WiUiams v. Day-
ton 55N.Y.374 257
People ex rel. Wood v. Assessors. 138 N. Y. 201, 204 659
People ex rel. Wynn v. Grifen-
hagen 167 App. Div. 572 607
Peoples Bank v. St Anthony's
R. C. Church 109 N. Y. 612 9
Perkins v. Stimmel 114 N. Y. 359 297
Peterson v. Martino 210 N. Y. 412. 149
Pettibone v. United SUtes 148 U. S. 197 678
Pflum V. Spencer 123 App. Div. 742 451
Pfotenhauer v. Brooker 52 Misc. Rep. 649 378
Phillips V. Tietjen 108 App. Div. 9 65
PhUHps V. Wheeler 2 Hun, 603 ; affd., 67 N. Y.
104 209,211,212
Pierce v. Stablemen's Union,
Local, etc 156 Cal. 70 671
Pierson v. People 79 N. Y. 424 66
Pluck V. Digges 2 Dow & C. 180 615
Price V. Mulford 107 N. Y. 303 140
Pritchard v. Hirt 39 Hun, 380 398
Pope v. Hart 36 Barb. 636 398
Pope V. Terre Haute Car & Mfg.
Co 107 N. Y. 61 381
Post V. Kearney 2 N. Y. 394 541
Post V. Moore 181 N. Y. 15 305
Q.
Quayle v. State of New York. . 192 N. Y. 47, 51 499
Quinto V. Alexander 123 App. Div. 1 648
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TABLE OF CASES CITED. xxxvii
R.
Railroad Company v. Peniston. . 18 Wall 5 423
Randolph v. Field 84 Misc. Rep. 403 322
Rapelye v. Prince 4 Hill, 125 692
Raven v. Smith 87 Hun, 90 443
Reardon, Ine. v. Caton 189 App. Div. 501 680, 681
Reardon v. International Mer-
cantile Marine Co 189 App. Div. 515 680, 681
Reed v. Reed 106 Misc. Rep. 85 199
Reinertsen v. Erie R. R. Co 66 Misc. Rep. 229 708
Reisfdd v. Jacobs 107 Misc. Rep. 1 329
Reithman v. Brandenburg 7 Colo. 480 516
Rexford V. State of New York. . 105 N. Y. 229 278
Rice V. Manley 66 N. Y. 82 186
Rice V. Ontario S. B. Co 56 Barb. 387 4
Ridden v. ThraU 125 N. Y. 572, 579 487, 488
Riglander v. Star Company 98 App. Div. 101; affd., 181
N. Y. 531 707
Ring V. City of Cohoes 77 N. Y. 83 279
Roberson v. Rochester Folding
Box Co 171N.Y.538 479
Robert v. Coming 89 N. Y. 225, 235 25
Roberts v. Hayward 3 Car. & P. 432 516
Roberts v. State of New York. . 160 N. Y. 217 496
Robin V. Colaizzi 101 Misc. Rep. 298 69
Robinson v. Ball 187 App. Div. 799 402
Robinson v. Pay 19 N. Y. Supp. 120 443
Robinson v. Robinson 146 App. Div. 533 701
Rogers v. Patterson 79 Hun, 483 296
Rolker v. Great Western Insur-
ance Company 4 Abb. Ct App. Dec. 73. . . . 699
Romaine v. Van Allen 26 N. Y. 309 700
Rommel v. Schambacher 120 Penn. St. 579, 582 178
Roseboom v. Roseboom 81 N. Y. 359 304
Rosenberg v. Haggerty 189 N. Y. 485 688
Rosenblatt v. Josephson 172 N. Y. Supp. 719 706
Rossie Iron Works v. Westbrook. 59 Hun, 345 59
Round Lake Assn. v. Kellogg. . . 20 N. Y. Supp. 261; affd.,
141 N. Y. 348 9
Rourke v. Elk Drug Co 75 App. Div. 145 576, 677
Rouse V. Payne 120 App. Div. 667 297
Rothbarth v. Herzf eld... ...... 179 App. Div. 865; affd.,
223 N. Y. 578 695
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xxxviii TABLE OF CASES CITED.
Rnssell v. Prudential Insurance
Co 176 N. Y. 178 474
Ryanv.Dox 34 N. Y. 307 411, 412
s.
Salen v. Bank of the State of
New York 110 App. Div. 636 63
Salisbury v. Slade 160 N. Y. 278 72
Sak>mon v. Salomon 101 App. Div. 588 703
Sanderson v. Morgan 39 N. Y. 231 695
Sands v. St John 36 Barb. 24 567
Sands V.Waldo 100 Miso. Rep. 288, 293,
294 304
Saratoga County Bank v. Pruyn. 90 N. Y. 260 160
Saunders v. Hanes 44 N. Y. 353 619
Saxe V. Penokee Lumber Co 159 N. Y. 371 332
Searff V. Metcalf 107 N. Y. 211 589
Schenectady Observatory v.
Allen 42N.Y.404 244
Schmidt v. Gunther 5 Daly, 452-453 576
Schmidt v. Simpson 204 N. Y. 434, 438 537
Schuyler v. Smith 61 N. Y. 308, 309 450, 516
Schwarz V. Regensburg & Son.. 168 App. Div. 903; affd.,
223 N. Y. 521 415
Schwartz v. Schwartz 113 Misc. Rep. 444 348
Scofield V. Day 20 Johns. 102 4
Scott V. Rogers 31 N. Y. 676 700
Seaboard National Bank v. Bank
of America 193 N. Y. 26 61
Seely v. Seely 164 App. Div. 652 150
Selig Polyscope Co. v. Unicom
Film Service Corp 163 N. Y. Supp. 62 524
Seymour v. Wilson 14 N. Y. 567 397
Seymour v. Wyckoff 10 N. Y. 213 699
Sharot v. City of New York 177 App. Div. 869; affd.,
226 N. Y. 679 279
Sheldon v. Button 6 Hun, 110 489
Sheldon v. Lake 9 Abb. Pr. N. S. 306 406
Sheldon v. Stryker 27 How. Pr. 387 692
Shepard v. Oakley 181 N. Y. 339 217
Sherin Special Agency v. Sea-
man 49 App. Div. 33 601
Sherman v. Com Exchange Bank 91 App. Div. 84 63
Sherman v. Pullman Co 79 Misc. Rep. 52 68
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TABLE OF CASES CITED. xxxix
PAOB.
Simpson ▼. Jersey City Aiiitract^
ing Co 165N.T.193 507
Sioux Remedy Co. v. Cope 235 U. S. 197 552
Sipple V. State of New York. . . 99 N. Y. 285, 287, 288. .428, 499
Skolny v. Hillman 114 Misc. Rep. 571 667
Slater v. United Traction Co. . . . 172 App. Div. 404 402
Slingerland v. Corwin 105 App. Div. 310, 311 568
Smith V. Cheeebrough 176 N. Y. 317 22, 73
Smith V. Clews 114 N. Y. 190 536
Smith V. Fleischman 23 App. Div. 355 443
Smith V. Finkelstein 162 App. Div. 128 319
Smith V. littiefield 51 N. Y. 539 450
Smith V. People 47 N. Y. 330, 339 80
Smith V. Beetor 107 N. Y. 610, 619 318
Smith V. Smith 2 Dem. 43 82
Smith V. State of New York. ... 227 N. Y. 405 278, 445, 495
497, 500
Smith V. U. S. Casualty Co 197 N. Y. 420, 428 479
South¥dck V. First Nat. Bank of
Memphis 84 N. Y. 420, 429 571
Spanedda v. Murphy 144 App. Div. 58 61
Spencer v. Spencer 219 N. Y. 469 91
Squier v. Hanover Fire Ins. Co. 18 App. Div. 576, 578 475
Standard Steam Specialty Co. v.
Com Exchange Bank 84 Misc. Rep. 445 « . • 51
Stanton v. Miller 58 N. Y. 192 357
Starkweather v. Kittle 17 Wend. 20 568
State of Colorado v. Harbeck. . 189 App. Div. 865, 872 164
Steinhardt v. Baker 20 Misc. Rep. 470 ; affd., 163
N. Y. 410 377
Stein V. Empire Trust Co 148 App. Div. 850 51
Stephens v. Commissioners of
Palisades Interstate Park 108 Atl. Repr. 645 429, 430
Stem & Co. V. Avendon & Co.,
Inc Ill Misc. Rep. 372. . . .515, 516
Stevens v. City of New York. . . Ill App. Div. 562 515, 516
Stevens v. Stevens 2 Dem. 469 294
Stewart v. Long Island R. R. Co. 102 N. Y. 601 541
Stewart v. Stone 127 N. Y. 500 326
Storgard v. France & Canada
S. S. Corporation 263 Fed. Repr. 545 588, 589
Strohmeyer & Arpe Co. v. Guar-
anty Trust Co 172 App. Div. itf 706
Snauv. Caffe 122 N. Y. 30^-320 160
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xl TABLE OF CASES CITED.
PAOB.
Sultan ▼. Star Co., Ine 106 Misc. Rep. 43 578
Swanson v. Cooke 45 Barb. 574 4
Sweet V. Perkins 196 N. Y. 482 279
Syms V. City of New York 105 N. Y. 153 452
T.
TarbeU v. West 86 N. Y. 288 15i
Taylor V. Goelet 208 N. Y. 253 382, 383
Taylor v. Porter 4 HiU, 144 244
Taylor v. Security Mutual Life
Ins. Co 73 App. Div. 318 568
Temperton V. Russell (1893) 1 <i. B. 715 183
The BoukerNo. 2 241 Fed. Repr. 831 588
Thomas v. Scutt 127 N. Y. 133 319, 320
Thompson v. Goldstone 171 App. Div. 666, 668. .534, 536
Thompson v. Town of Bath. ... 142 App. Div. 331 279
Tifft V. Porter 8 N. Y. 516 374
Town of Hancock 142 N. Y. 510 280
Town of Oyster Bay v. Jacob. . 109 App. Div. 615 33
Townsend v. Townsend 2 Sandf. 711 160
Trustees Exempt Firemen's
Benev. Fund v. Roome 93 N. Y. 313 253
Turner v. Fulcher 165 N. Y. Supp. 282 182
Turner v. Scott 51 Penn. St. 126, 134 486
Tyson v. Bauland Co 68 App. Div. 310 407
u.
Uhlfelder v. Tamsen 15 App. Div. 436 441
Ulhnan v. Ullman 161 App. Div. 419 83
Union Bag & Paper Co. v. Allen
Brothers' Co 107 App. Div. 529 626
Union National Bank v. Chap-
man 168 N. Y. 538 335
United States F. & G. Co. v.
Carnegie Trust Co 161 App. Div. 429 ; affd.,
213 N. Y. 629 441
U. S. Radiator Co. v. State of
New York 208 N. Y. 144, 148 509
United States Realty & Imp. Co.
V. Ewing 172 N. Y. Supp. 214 386
Upton Co. V. Flynn 169 App. Div. 79 441
Usher v. New York C. & H. R.
R. R. Co 76 App. Div. 422; affd., 179
N. Y. 544 416
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TABLE OF CASES CITED. xH
V. PAoa
Van Allen ▼. AsseasorB 3 Wall. (U. S.) 573 509
Van Rensselaer v. BaU 19 N. Y. 100 610
Van Rensselaer v. Bonested. ... 24 Barb. 356 616
Van Rensselaer v. Bradley 3 Den. 135 616
Van Rensselaer v. Dennison. ... 35 N. T. 393 617, 619
Van Rensselaer v. Qallup 5 Den. 454 616
Van Rensselaer v. Hays 5 Den. 477; 19 N. Y. 68. . . 615
616, 622
Van Rensselaer t. Jewett. ..... 5 Den. 121 616
Van Rensselaer t. Jones 5 Den. 449 616
Van Rensselaer v. Read 26 N. Y. 558, 563 617, 618
Van Rensselaer v. Roberts 5 Den. 470 616
Van Rensselaer v. Snyder 13 N. Y. 299 616
Vegelahn v. Guntner 167 Mass. 92 671
Village of Carthage v. Frederick 122 N. Y. 268 639
Von Der Heyde v. Ditmars 174 App. Div. 390 347
w.
Wade V. Town of Worcester 134 App. Div. 51 282
Waldron v. Schlang 47 Hun, 252 73
Walker v. Mansfield : . . 221 Mass. 600 164
Wallace y. International Paper
Co 53 App. Div. 41 146
Wallace V. McEchron 176 N. Y. 424 147
WaUer v. Degnon Cont. Co 120 App. Div. 389 670
Waller v. Town of Hebron 5 App. Div. 577; affd., 17
App. Div. 158; 131 N. Y.
447 282
Walsh V. Durkin 12 Johns. 99 130
Warner v. Durant. ; 76 N. Y. 133 25
Ward V. Hasbrouck 169 N. Y. 407 532
Warmser v. Brown, K. & Co 187 N. Y. 87 70
Warner v. People 2 Den. 272 244
Waters, Inc. v. Hatters' Fur
Exchange, Inc 186 App. Div. 803 708
Watson V. Gugino 204 N. Y. 535 269
Watts V. Coffin 11 Johns. 496 616
Weinberg v. Greenberger 47 Misc. Rep. 117 559
Weisberger Co. v. Barberton
Savings Bank 84 Ohio St. 21; 34 L. R. A.
(N. S.) 1101 52
Wheeler v. Reynolds 66 N. Y. 227, 236, 237 411
Wheeler^Stenzel Co. v. American
Window Glass Co 202 Mass. 471 183
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xUi U. S. STATUTES AT LAtlGE CITED.
PAttl.
•Wheeler v. State of New York. . 190 N. Y. 406 250, 253, 254
Whipple V. Prudential Ins. Co. • 222 N Y. 30, 43 473, 474
White V. Wager 25 N. Y. 328 160
White V. White 154 App. Div. 250 703
Wightman v. Schliefer 18 N. Y. Supp. 551 160
Williams v. Guile 117 N. Y. 343
Wilson V. Tabernacle Baptist
Church 28 Misc. Rep. 268.
Wilson V. Wilson 158 III. 567
Wilson V. Wright 9 How. Pr. 459
Windmuller v. Pope 107 N. Y. 674. . . .
Winfield v. Stacom 40 App. Div. 95. .
.... 488
.... 10
.... 487
.... 212
.... 331
.... 442
Winslow V. B. & 0. R. R. Co. . . . 188 U.S. 646 451
Wolf V. Wolf 194 App. Div. 33 183
Wood V. Baker 43 Misc. Rep. 310 201
Wood V. Wood 26 Barb. 356 297
Woods V. De Piganiere. 1 Robt. 607, 610 169, 171
Wooley V. Stewart 222 N. Y. 347, 350 411
Wright V. Weeks 25 N. Y. 153 % 357
T.
Young V. City of Rochester.
73- App. Div. 81 271
NEW YORK STATE CONSTITUTION CITED.
FAOB.
Const, art. Ill, 4 12 243
Const. 1846, art. Ill, 4 17;
amendt. 1874, art. Ill,
J 23 637
Const. 1846, as amd. 1874,
art III, 4 18. 637
Const, art. Ill, 4 19. . . .239, 240
245, 246, 247, 252, 258, 263
Const. 1894, art. Ill, 4 27. 637
Const, art III, ( 28... 240, 243
244, 246, 247, 250, 252, 262
Const art. IV, 4 26 240.
Const art VIII, $ 9 247
UNITED STATES STATUTES AT LABGB
CITED.
39 U S. Stat at Large, 728.
PAOI.
. 67ft
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CONSOLIDATED LAWS CITED. xliu
UNITED STATES REVISED STATUTES CITED.
PAOB.
V. S. B. S., J 3701 420, 421, 423
NEW YORK REVISED STATUTES CITED.
PAOB.
2 B. S. pt 2, ch. 1, tit 6,
ft 1,2 609
2 B. S. pt 3, ch. 8, tit 9,
art 2, i 1 618
PAOI.
2 R. S. 620, pt 3, ch. 10,
tit 2 502
2R. S. J 59 703
CONSOLIDATED LAWS CITED.
Consolidated Laws:
chap. 6, ii 50, 51 478
chap. 13, f 35 205, 693
chap. 13, i 30 204
chap. 13, J 47 13
chap. 13, i 101 295, 296
chap. 14, J 70 704
chap. 14, i 111 (3). 313, 314
chap. 14, i 113 314
chap. 20, i 345.134, 136, 137
chap. 22, i 15 551, 552
chap. 22, ( 16 116, 552
chap. 23, $ 34 8
chap. 25, H 3(2), 176.. 445
chap. 26, i 176 278, 445
chap. 33, H 11, 13 441
chap. 34, i 7.. 266, 269, 270
chap. 36 76
chap. 38, i 42 51
chap. 38, i 321 355
chap. 40, i 43 699
ehap. 40, f 62 698, 699
Consolidated Laws: taqm.
chap. 41, J 15 512
chap. 41, J 43 536
chap. 41, J 85 329
chap. 41, f 100, rule 4,
subds. 1, 2 545
chap. 41, 4 144(1) 645
chap. 41, H 145, 156.329, 330
chap. 48, 4 5(3) 340
chap. 49, art. IV 339
chap. 49, $ 181.340, 341, 343
chap. 50, J 41 165
chap. 50, J 42 72
chap. 50, H 97,99 27
chap. 50, J 230 517
chap. 50, i 240 609
chap. 50, i 259 548
chap. 50, $ 378(3) 720
chap. 51, i 5 585
chap. 61, art. X 682
chap. 59, J 66 95
chap. 60, $ 2(8) 420
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xliv
SESSION LAWS CITED.
Consolidated Lawa: fiab.
ehap. 60, ( 4(7) 125
chap. 60, i 12 420
ehap. 60, t 132.146, 147, 140
chap. 60, i 134 149, 150
chap. 60, H 181,182.... 508
chap. 60, i 210 510
ehap. 60, i 220(2) 510
ehap. 60, ( 220(3) 87
Consolidated Laws :
chap. 60, i 220(5) 312
chap. 60, i 220(6) 162
chap. 60, i 221 74
chap. 60, i 221-b....l67, 364
366, 366, 367, 510
chap. 60, i 230 312, 368
chap. 60, fi 230,241.165, 166
SESSION LAWS CITED.
FAoa.
1804, chap. 31 635
1805, " 132 635
1806, " 146 636
1807, " 142 635
1813, " 65 636
1817, « 189 636
1822, " 127 634
1822, " 137 636
1853, " 578 640
1854, " 98 640
1868, " 191 640
1875, " 482 638
1881, ** 132, 374, 570... 638
640
1884, « 252, H 4, 13.... 339
340, 343, 344
1884; " 381 169
1885, '' 238 258
1886, " 65 339
1890, " 565, art IV.340, 344
1895, « 595 230
1897, " 284 312
1900, " 170, ( 1....427, 429
1900, " 170, J J 2,4, 5.. 428
1900, « 726 250
1906, " 691 428
1909, " 7, $39,266, 269, 270
1909, " 13, J 47.... 714, 719
1909, chap.
1909, »*
1910, "
1911, "
1911, «
1911, "
1911, "
1912, «
1913, "
1913, «
1914, "
1915, "
1915, «
1917, «
1917, «
1917,
1918,
1918,
1919,
1919,
1919,
1919,
1919,
1920,
1920,
1920,
1920,
30,4 74... 277, 278
58, 4 35 270
361 428
509 687
732 312
746, 4 8.... 432, 433
779 271
648, 44 3, 7.... 503
230 563
569 313
15 429
562 428, 429
664, 4 220(2).. 508
168 428
472,44129,130. 713
714
700, 4 2 364
569 269
586 266
177 269
293, 4 36.. 204, 206
469 260
581 497
627 368
136 ....79, 80, 618
138 617
283 428, 429
942 .,.92, 107, 397
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CODE OF CIVIL PROCEDURE CITED. xlv
1920, chap. 944 79, 80, 176
517, 618, 519
1920, <' 944, i 4 518
PAOB
1020, chap. 945 79, 80
1920, " 947 517
1920, « 952 81
CODE OF CIVIL PROCEDURE CITED.
Code of Civil Procedure, paob.
$264 279, 496, 498, 500
♦ 268 274
♦ 290 211
1373 622
♦ 375 170
♦ 382(6) 140, 141
♦ 410 139
♦ 431(3) 561, 563
♦ 432(1) 116
♦ 435 563, 564
♦ 440 347
J452 441
♦ 483 407
i500 567
♦ 531 570
♦ 548 476
♦♦560,675 475, 476
♦ 575 477
♦ 723 212
♦ 793 708
♦♦797,802 348
♦♦870,872 169, 171, 173
♦ 968 32
♦ 984 56, 56
♦ 1366 209
♦ 1504 632
♦ 1525 687, 688
♦ 1638, art 5 684
♦ 1646 687, 688
♦ 1679 686, 686
♦ 1744 201
Code of Civil Procedure, paob.
♦♦1747, 1748 199, 200
♦ 1766 701, 702
♦ 1771 314, 702, 703
♦ 1836-a 21
♦ 1843 295
♦ 2231(l-a) 92
♦ 2233 31
♦ 2244 80
♦ 2490(6) 377
♦ 2610 42
♦♦2510,2706 293
♦ 2560 379
♦ 2664 164
♦ 2665 164
♦ 2688 162, 164
♦ 2688(2) 162
♦ 2696 466
♦♦2596,2597 456, 457
♦ 2615 71
♦ 2646 83
♦ 2649 86
♦ 2670. .166, 167, 158, 169, 160
♦ 2671 156
♦ 2677 228
♦♦ 2680(2), 2681. .229, 230, 231
♦ 2697 284
♦ 2731 '..40, 41, 42
♦ 2746 463
♦ 2763 379
♦ 3268 . • . .501, 502, 604, 505
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xlvi EULES CITED.
PENAL LAW CITED.
Penal Lav. vam. ( Penal Iaw. paob.
♦ 38 134 $41426,2036 37
f 680(5) 3^ 38
UNITED STATES CRIMINAL CODE CITED.
U. S. Criminal Code, 4 37 «79
MUNICIPAL COURT CODE CITED.
PAoa.
Mun. Court Code, H 21, 23 561, 662
BULES CITED.
FAQB.
General Rules of Practice, rule XLVIII 61
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MISCELLANEOUS REPORTS
OV THK
STATE OK NEAV YORK
OOMMSNCIMO DBCEMBBR, 19&0.
Theodore Beyillon, Plaintiff, v. Rod A. Demme,
Defendant.
(Supreme Gonrt, Kings Special Tesrm, December, 1920.)
KegotiablA iastmmentB — promissory notes made payable in
France*— when loss from depreciation of French money is
not an element of damage — rate of exchange —- evidence.
Where at the time certain promissory notes given for the
purchase price of shares in a French corporation and made
payable in France in francs, both of the parties to the notes
resided in that country, the plaintiff in an action on the notes
is entitled to recover, in dollars, the amount of the notes com-
puted at the rate of exchange existing when the action was
begun.
It was defendant's duty when sued to pay the amount of
the notes in dollars, and he will not be permitted to take
advantage of a change in the rate of exchange in his favor
by withholding payment.
In the absence of proof to the contrary it will be presumed
that the law of France is similar to our own, and therefore
the loss from depreciation of French money is not an element
of damage, the only damages recoverable for non-payment of
the notes at maturity being interest.
Trial by the court without a jury under stipulation
of the parties.
Sparks, Fuller & Strieker, for plaintiff.
Austin, McLanahan & Merritt, for defendant.
1
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BEVILLOiq V. DeMME.
Supreme Court, December, 1920. [Vol. 114.
ScuDDER, J. By the stipulation under which this
case is heard defendant admits the second caus^ of
action alleged in the complaint, and the sole issue to be
determined by the court is the correct amount of the
judgment.
On May 4, 1915, in Paris, France, plaintiff and
defendant entered into a written agreement for the
sale and purchase of certain shares of stock of a
French corporation. At the time of the making of the
agreement, plaintiff delivered to defendant 500 shares
at the agreed price of 225,000 francs, and for this
amount defendant delivered to plaintiff five notes due
August 4, 1915.
These notes were not paid at maturity, and the
admitted second cause of action alleged in the com-
plaint is upon them. Except as to amount all of the
notes read alike. The following is the translation of
one of them:
" Pabis, the fourth of May, 1915. B. P. F. 50,000.
** On August fourth, nineteen fifteen, I shall pay
against this note to Mr. Theodore Revillon, living in
Paris, Theirs Street No. 4, the sum of fifty thousand
francs in settlement of account.
** Note for fifty thousand francs.
** Rod A. Demme
** Paris, 11 Avenue de TOpera.'' [Tax Stamp]
By the stipulation the question submitted to the
court }s the law of this state requires the amount
of the judgment in dollars to be computed (1) at
the par rate of exchange, or (2) at the rate of
exchange at the maturity of the notes, namely, August
4, 1915, or (3) at the rate of exchange at the date of
the commencement of the action, namely, May 21, 1920,
or (4) at the rate of exchange at the date of trial
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Rbvillon v. Demme.
Misc.] Supreme Court, December, 1920.
and entry of the judgment, which by the stipulation
shall be taken to be as November 16, 1920.
It is further stipulated that, for the purpose of
decision and determination the par rate of exchange
of the franc shall be taken to be 5.18 francs per dollar,
that is 19.3 cents per franc, and that the rate of
exchange on the several dates mentioned shall be
taken to be as follows: *' On August 4, 1915, 5.55
francs per dollar, that is 18 cents per franc; on May
21, 1920, 13.84 francs per dollar, that is 7.22 cents per
franc, and on November 18, 1920, 17.10 francs per
dollar, that is 5.84 cents per franc.
This case is not complicated by the fact that the
parties at the time when the contract and notes were
made were residents of different countries, and there
is no room for controversy as to where the contract
was made or where it was to be performed and the
money paid.
Both parties to the contract resided in France, and
the notes were given for the purchase price of the
shares of a French corporation, and were made pay-
able in France in the current money of that country.
The facts of the case furnish no occasion for dis-
cussion of conflict of laws, or the laws governing bills
of exchange, or the laws or customs of merchants.
The case presented is that of a common debt con-
tracted and payable in France.
It seems to me that the rule as to the measure of
damages which should be applied in such case is, pay
the creditor the exact sum which he ought to have
received in France.
The application of this rule to the present case
requires the court to render judgment for such sum
of dollars as will be equivalent to the amount of prin-
cipal and interest of the notes in francs computed
either at the rate of exchange at the time of the com-
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Bevillon v. Demmb.
Supreme Court, December, 1920. [Vol. 114.
mencem^nt of the action or the rate at the time of
judgment, and not at the jpax rate of exchange.
To compute the sum due at the par rate of exchange
would be in effect to require defendant to pay in gold,
although the notes were not made payable in gold.
Plaintiff's loss in the transaction by reason of the
depreciation in French money did not arise or result
from defendant's breach of his contract in not paying
the notes when they became due.
The general rule is that the lex loci contractus, and
not the lex fori, governs questions as to the elements
and amount of damages recoverable for a breach of
contract. 12 C. J. 486. In this case, however, it is to
be presumed, in absence of evidence to the contrary,
that the law of France is similar to our own, and there-
fore under the French law the loss from the deprecia-
tion of the money of that country is not an element
of the recoverable damages, and that the only dam-
ages that may be recovered for nonpayment of money
is interest.
Plaintiff cites in support of his contention that the
amount of the judgment in dollars should be computed
at the par rate of exchange, the case of Martin v.
Franklin, 4 Johns. 124, and cases in which that case
has been followed in the lower courts of this state
{See field V. Day, 20 Johns. 102 ; Guiteman v, Davis, 45
Barb. 576; Swanson v. Cooke, Id. 574; Ladd v. Arkell,
50 N. Y. Super. Ct. 150, 155; i2ice v. Ontario 8. B. Co.,
56 Barb. 387), and in the Massachusetts courts
{Adams v. Cordis, 8 Pick. 260; Alcock v. Hopkins, 6
Gush. 484; Lodge v. Spooner, 8 Gray, 166; Common-
wealth V. Haupt, 10 Allen, 38 ; Burgess v. Alliance Ins.
Co., Id. 221). The ruling of the court in Martin v.
Franklin, supra, is sharply criticized by Judge Story
in Grant v. Healy, 10 Fed. Gas. 978, and it does not
seem to have received the approval of the Gourt of
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Bevillok^ v. Demmb.
Mise.] Supreme Court, December, 1920.
Appeals of this state in Oliver Lee & Co.'s Bank v.
Walbridge, 19 N. Y. 136.
Neither the case of Martin v. Franklin, nor the
other cases to which plaintiff refers, present a case
like the one now before the court, where the place of
residence of the parties, the place of making the con-
tract and its performance are all in one country.
These cases differ so materially from the case under
consideration that an extended oon'sideration of them
seems unnecessary.
As between the rate of exchange at the commence-
ment of the action and the rate of exchange at the time
of judgment, it seems to me that the rate at the com-
mencement of the action is the proper rate to be
employed in computing the amount of the judgment.
The notes became payable in dollars upon plaintiff's
demanding of defendant their payment in this state.
The conmienoemeut of the action was equivalent to
such a demand The amount due in dollars depended
upon the rate of exchange existing at the time of the
demand or, in this case, the commencement of the
action. Under the law of this state it was the defend-
ant's duty forthwith upon demand to pay the amount
in dollars, and he should not be permitted to take
advantage of a change in the rate of exchange in his
favor by withholding payment.
Plaintiff is entitled to interest at six per cent from
August 4, 1915, the date when the notes became due,
to November 16, 1920, the stipulated date on which
judgment is to be regarded as entered, and to have the
aggregate sum of principal and interest in francs con-
verted into dollars at the rate of exchange on May 21,
1920, the date of the commencement of the action,
namely 13.84 francs per dollar.
Judgment for plaintiff for $21,409.14.
Judgment for plaintiff.
Digitized by VjOOQIC
6 Paeucki v. Polish National Catholic Chubch.
Supreme Court, December, 1920. [Vol.114.
Michael Parucki and Josefina Parucki, Respondents,
V. The Polish National Catholic Church of the
Holy Mother of the Rosary, Appellant.
(Supreme Court, Erie Special Term, December, 1920.)
Kegotiable instruments — lack of authority in oi&cors of a
religious corporation to irsne notes — evidence.
A business act of a religious corporation must be shown to
have been duly authorized before any liability therefor will
attach.
A promissory note purporting to have been made by a
religious corporation organized under the Laws of 1813 can
only be authorized at a meetinp: of five of the nine trustees
which the corporation was authorized to elect each year.
Proof that such a note was signed by the president, secre-
tary and treasurer of the corporation does not show that it is
the note of the corporation without proof that it was made
by its authority. The fact that not all of the nine trustees were
acting as such when the note was made does not change the
requ'rement that five trustees were necessary to constitute a
quorum.
The evidence in an action on the note being insufficient to
support a finding that it was authorized by the board of trustees,
and the record on appeal from a judgment in favor of plain-
tiff not showing that defendant received the money represented
by the note, and that the corporation by its board of trustees
never admitted its liability thereon, the judgment appealed
from will be reversed and a new trial ordered.
Appeal from a judgment of the City Court of Buffalo
rendered in favor of plaintiffs.
Henry Adsit Bull, for appellant.
Alfred L. Harrison, for respondents.
Laing, J. This is an appeal from a judgment of the
City Court of Buffalo rendered on July 30, 1920, for
$1,252.80, recovered on a promissory note purporting
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Paeucki v. Polish National Catholic Chubch. 7
Misc.] Supreme Court, December, 1920.
to have been given by the defendant to the plaintiffs,
dated November 2, 1909, for $700.
The prior judgment in favor of the plaintiffs was
reversed by this court. Parucki v. Polish National
Catholic Church of the Holy Mother of the Rosary,
177 N. Y. Supp. 206.
The note was signed by the president, secretary and
treasurer of the defendant. On the Thursday evening
preceding the date of the note, at the usual time and
place of holding meetings by the trustees of the defend-
ant, at least four trustees met, and then and there the
action was taken which the plaintiffs contend author-
ized the giving of this note.
On the former appeal it was assumed that five trus-
tees met at this time, but it was held that no action was
taken by them as a board, and hence that the note was
not authorized.
The evidence on this trial discloses more fully the
action taken at this meeting, and the trial judge, I
think rightly, concluded that the trustees did act as a
board in such a way as to make their action valid.
The question, however, is now presented as to
whether or not there was at this time a quorum of
trustees. The defendant was incorporated as a relig-
ious corporation under the Laws of 1813, and the
number of its trustees authorized, and each year
elected, was nine. The record does not show clearly
the number of trustees in October and November,
1909, but it does indicate that not all the trustees were
then acting, for the reason that at that time there was
a division in the church. The evidence upon the for-
mer trial as to the number of trustees at this particular
meeting was: ** Q. Who was present at that meeting!
A. Simon Zacholski, Frank Borowiak, Bishop Kamin-
ski; I think Ignatz Gliczinski was there. I could not
say, I think he was there. Q. Were you there t A«
Yes, sir/'
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8 Pabucki v. Polish National Catholic Chubch.
Supreme Court, December, 1920. [Vol. 114.
This evidence was repeated upon the second trial
and the same witness also testifies as follows: ^^ Q.
There was present at the meeting Simon ZacholskiT
A. Simon Zacholski was there. Q. Anybody elset A.
The secretary and Bishop Kaminski. Q. Anybody
else! A. The treasurer, Joseph Siejak. Q. Anybody
else! A, Frank Borowski. .Q. Was Ignatz there!
A. I didn't see him that time. Q. This Simon Zachol-
ski was president! A. Yes * * *. The Court: Q.
How many were there at that meeting! Mr. Harrison :
A. Four. Bishop Kaminski, Zacholski, Siejak and
Borowiak. Mr. Harrison : Q. Do you know positively
what people were there that night, and, if so, who were
they! A. Bishop Kaminski, Simon Zacholski, Joseph
Siejak, Frank Borowiak. Mr. Harrison: Q. In your
last testimony you said that Ignatz might have been
there. Was he or was he not! A. I cannot say for
positive whether he was or not.*'
The evidence on the former trial probably permitted
a finding that five trustees were present at this meet-
ing. That finding cannot be made upon the record
now before the court. The trial judge apparently
assumed that the evidence on the second trial was not
different from that given on the previous trial. Hence
the question as to whether or not there was a quorum
of trustees at this meeting was not discussed by him.
The question however is necessarily involved in this
appeal. This note could be authorized only at a meet-
ing of five trustees. No question of notice of the
meeting is involved. The meeting was at the usual
place and at the usual time. Those facts however did
not permit action unless a quorum was present at the
meeting.
The General Corporation Law (§ 34) provides that
** a majority of the board of directors of a corporation
at a meeting duly assembled shall be necessary to con-
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Parucki v. Polish National Catholic Chubch. 9
Misc.] Supreme Court, December, 1920.
stitute a quorum for the transaction of business.'*
The decisions are in accord with this rule. Moore v.
St. Thomas Church, 4 Abb. N. C. 51; Ex parte WiU
locks, 7 Cow. 402; Round Lake Assn. v. Kellogg, 20
N. Y. Supp. 261 ; affd., 141 N. Y. 348 ; Erie R. R. Co. v.
City of Buffalo, 180 id. 197; Cook Corp. § 713A.
The fact that not all of the nine trustees were acting
as such did not change the requirement that five were
necessary to constitute a quorum. A majority of the
legal number is required to hold a meeting. Moore v.
St. Thomas Church, 4 Abb. N. C. 51; Ex parte WiU
locks, 7 Cow. 402; Round Lake Assn. v. Kellogg, 20
N. Y. Supp. 261; Erie R. R. Co. v. City of Buffalo, 180
N. Y. 197; 10 Cyc. 329; Thomp. Corp. (Ed. 1895)
§ 3917; Cook Corp. § 713A.
The fact that this note was signed as it was does
not make its issuance the act of the defendant. Proof
that a promissory note purporting to be made by a
corporation was signed by its president and secretary
does not show that it is the note of the corporation
without proof that it was made by its authority. Peo-
ples Bank v. St. Anthony's R. C. Church, 109 N. Y.
512. Even if it be held that such proof would be
prima facie evidence that the note was authorized,
such a holding would not avail here because full proof
was made by the plaintiffs as to how and why the note
was given. The general rule is that a recovery cannot
be had against either a religious or business corpora-
tion, on commercial paper, unless the evidence war-
rants a finding, not only that the paper was issued by
officers of the corporation but that its issuance was
authorized by the by-laws, or by resolution of the
board of directors, or by a course of dealing by which
the corporation held them out as authorized to issue
it, and would be deemed estopped from questioning
their authority, or of ratification by the acceptance
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1 0 Parucki v. Polish National Catholic Chubch.
Supreme Court, December, 1920. [Vol. 114.
and retention of some benefit or advantage from the
unauthorized act or otherwise. Miners <& Merchants'
Bank V. Ardsley Hall Co., 113 App. Div. 194. As to a
religious or other corporation not engaged in business,
a business act which charges them with liability must
be shown to have been authorized before the liability
will attach. Karsch v. Pottier d S. Mfg. & Imp. Co.,
82 App. Div. 230, 233; Miners <& Merchants' Bank v.
Ardsley Hall Co., 113 id. 194; Kelley v. St. Michaels
R. C. Church, 148 id. 707. Proof that the defendant
received the money represented by this note might
entitle the plaintiffs to recover under the authority of
Wilson V. Tabernacle Baptist Church, 28 Misc. Rep.
268. There is evidence that this money was borrowed
to pay the interest on the defendant's mortgage, and
that Bishop Kaminski announced in church meetings
that this note was one of the defendant's obligations.
This evidence does not show that the $700 was used to
pay the interest on the church mortgage, nor does the
announcement in a church meeting that this note was
a church obligation and the acquiescence of the con-
gregation constitute a ratification. Neither the priest
nor the congregation represented the defendant in a
business transaction. The board of trustees, acting as
a board, alone could bind the defendant by a contract
or by an admission.
Having reached the conclusion that the evidence
does not support a finding that the note in suit was
authorized by the board of trustees, and that there is
no evidence in the record that the defendant received
the money represented by the note and that the defend-
ant by its board of trustees never admitted its liability
to pay the note, it necessarily follows that the judg-
ment appealed from must be reversed, and a new trial
ordered, costs to abide the event.
Judgment reversed and new trial ordered, costs to
abide event.
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WOOLLBY V. HUTCHINS. 11
Misc.] Supreme Court, December, 1920.
Clarence M. Woollbt, Roland J. Hamilton and
Frank M. Peters, as Executors and Trustees under
the Last Will and Testament of John B. Pierce,
Deceased, Plaintiffs, v. Carrie Eleanor Hutchins
et al., Defendants.
(Supreme Court, Erie Trial Term, December, 1920.)
Wills —constmction of — how validity of a testamentary dis-
position of real estate in this state by a non-resident testator
is controUed — trusts — suspension of power of alienation —
corporations — power of sale — annuities — devise — vesting
— gifts — Decedent Estate Law, §§ 44, 45, 47 — Real Prop-
erty Law, §§ 42, 61, 97, 99 — Code Civ. Pro. § 1836-a.
The validity of a testamentary disposition of real estate in
this state by a non-resident testator is controlled by section 47
of the Decedent Estate Law. (P. 13.)
By a trust created by the will of a non-resident testator who
left very little property other than common and preferred
stock in a corporation and certain unproductive real estate in
this state of the value of $150,000, there was given outright to
certain designated employees of the corporation, divided into
classes, the amount of property which the testator intended they
should receive at his death, with a proviso that the right of
any employee to participate in the distribution of the principal,
which was not to be made until after the lapse of ten years
even though the three life beneficiaries died long prior thereto,
was contingent upon such employees remaining in good stand-
ing in the active employment of the company, its successors and
assigns, until the expiration of the trust period. It was further
provided that in default of such continued employment, the
benefit intended for such employees should end and " be treated
as if never conferred " and the tesrtator left it entirely to the
officers of the corporation to terminate the employment of any
employee and made the action of said officers with respect
thereto as final and conclusive as a voluntary relinquishment of
employment. The trustees, being unable to dispose of the real
estate, a part of the residuary estate, because prospective pur-
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12 WOOLLEY V. HUTCHINS.
Supreme Court, December, 1920. [Vol. 114.
chasers question whether those represented by the trustees take
the real estate, and whether if the heirs of testator take the
remainder, the trustees have power to sell the real estate, bring
this action under section 1836-a of the Code of Civil Pro-
cedure and sections 44 and 45 of the Decedent Estate Law
against the heirs of testator, his widow and his former wife
for a construction of the will, and it is conceded that the
trust is void under the statute (Real Property Law, §8 42, 61)
providing against the suspension of the power of alienation
for a longer period than two lives in being and forbidding the
accumulation of rents and profits save as authorized by law.
Held:
That the remainder did not vest in the remaindermen on the
death of the testator but that their interests were cont^'n^^n-t,
and as to the principal were intended to vest onlv . •
expiration of the trust period, provided that in the me'i
they remained in the active employment of the companv 1
in good standing, and that to delete the invalid provision P
the will and declare that the remainder vested in the empl'^ ' fs
immediately upon the death of the testator would be in i''''^rt
to make a new will. (P. 25.)
The case held to come within the rule that where there is not
a direct devise or bequest to remaindermen but mere'v a
direction to executors or trustees to pay over to or divide
among a class at a future time, the vesting does not take place
until the arrival of that time, and the gift is contingent upon
survivorship and futurity is annexed thereto. (Id.)
The heirs of the testator took the real estate subject to
charges thereon for the payment of an annuity to the first
wife of testator, to the payment of his debts and funeral
expenses and inheritance taxes and any other public or govern-
mental charge and to the payment of money legacies given
by the will if needed therefor, and also subject to the exercise
of the power of sale conferred upon the executors and trustees
for any authorized purpose. (Pp. 26, 27.)
While the attempt of testator to confer authority upon his
executors and trustees to sell the real estate for the purposes
of the invalid trust falls with it, yet if a sale of the real estate
be necessary to render effectual any of the valid provisions of
the will or to enable the executors and trustees to perform any
of their duties, they are authorized to sell under the power
of sale, which under sections 97 and 99 of the Real Property
Law is valid as a power in trust, (Pp. Zl^ 28.)
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WOOLLBY V. HUTCHINS. 13
Misc.] Supreme Court, December, 1920.
Action for the construction of a will.
Sullivan & Cromwell (Roy all Victor, John W. Van
Allen, Ralph Royall and Miner W. Tnttle, of counsel),
for plaintiffs.
Satterlee, Canfield & Stone (George F. Oanfield, of
counsel), for defendants Fostena Dickey, Walter
Berry, Lester Berry, Leslie Berry, Linwood Berry
and Gladys Berry.
Henry Warren Beebe, for Adelaide Leonard Pierce.
Laughlin, J. This is an action brought by the
executors of and trustees under the last will and
testament of John B. Pierce, deceased, for the con-
struction of this will. The testator died on the 23d
day of June, 1917, a resident of the state of Massa-
chusetts, leaving a last will and testament duly
executed on the 15th day of December, 1913, and a
codicil thereto duly executed on the 19th day of May,
1916. The will was duly admitted to probate in
Massachusetts, and it is conceded that all of its pro-
visions are valid under the laws of that state. The
testator left unproductive real estate in the state of
New York of the value of about $150,000, the validity of
the disposition of which is controlled by the laws of
this state. Decedent Estate Law, § 47 ; Hobson v. Hale,
95 N. Y. 588. By paragraph I of the will, the testator
directed that his debts, funeral expenses and every
inheritance and governmental charge be paid out of
Ms residuary estate, described in paragraph XVII.
By paragraph II he disposed of certain personal prop-
erty and real estate in Massachusetts. By paragraphs
ni-XVI, inclusive, with the exceptions of paragraphs
X-XII, he gave certain cash legacies in common and
preferred stock of the American Radiator Company
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14 WOOLLEY V. HUTCHINS.
Supreme Court, December, 1920. [Vol. 114.
to his wife, to his two half-sisters, to an aunt, to five
friends, to twenty-one friends and relatives, and to
designated employees of the American Radiator Com-
pany. By paragraph X he gave his mining claims
and property in Alaska, and debts owing to him there
to a business associate. By paragraph XI he gave
to his first wife, Mary A, Pierce, from whom he was
legally separated, a house and lot occupied by her in
California, and a cash legacy of $300 per month for
life, and directed his trustees to make provision there-
for from his residuary estate. In paragraph XII he
set forth his reasons for the gifts of the common and
preferred stock of the radiator company contained in
paragraphs XIII-XVI, and for the provisions speci-
fied in paragraph XVII in their behalf provided that
they should be living at the expiration of the trust
period of ten years therein specified, or upon the
death thereafter of the last survivor of his two half-
sisters and his wife should they, or any of them, be
living at the expiration of the trust period. Those
reasons are stated to be that his business career had
been almost wholly identified with the manufacture
and sale of heating apparatus and appliances and that
the growth of the business had been gradual, owing to
his limited means at the outset, but that by applica-
tion and perseverance it grew and prospered until the
organization of the first company in 1892, since which
time it has been largely augmented, and that this was
due largely to the fine sense of honor, high quality of
integrity and conscientious and loyal devotion to the
performance of duty by his business associates and
to the development in the business organization of a
splendid spirit of co-operation in its various depart-
ments and among its employees until it steadily
advanced the business operations of the company
throughout this and foreign countries, and that grate-
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WOOLLEY V. HUTCHINS. 15
Misc.] Supreme Court, December, 1920.
fully paying tribute to his co-workers he further mani-
fested his appreciation by providing tangible benefit
to many of them out of the estate which they had
helped to expand and that as the largest part of his
residuary estate will consist of capital stock of the
radiator company he felt that by having mutuality
of interest between his wife and the beneficiary
employees of the company he would the more com-
pletely secure to her the continuance of a large yearly
income sufficient for all her possible requirements. By
paragraph XIII he gave to each of eight named
employees of the company, provided at his death they
should be in the active employ of the company, thirty-
tw^o shares of the common stock, and described them
as participants in Benefit A. By paragraplis XIV-
XVI he gave on the same condition, respectively, to
forty other named employees sixteen shares each of
the common stock, to sixty-one other named employees,
eight shares each of the common stock, and to three
hundred and nineteen other named employees, four
each of the common stock, and described them as par-
ticipants in ^* Benefit B, Benefit C and Benefit D/*
By paragraph XVII, as amended by the codicil, he
gave all the rest and residue of his property of every
name and description, wheresoever situate, to his trus-
tees, as follows: ^* * * * to hold, manage, control, in-
vest, dispose of and reinvest, as often as to them as may
seem desirable, in order to keep the same as productive
as may be and upon the further trusts to hold my
estate for income and accumulation for the period of
10 years from and after my death and thereafter until
each of my two half-sisters, EUie P. Watts and Mary
B. Bichardson, and also my wife, Adelaide Leonard
Pierce, have died. In the meantime and until the
expiration of aforesaid ten year period or until the
decease of my said two half-sisters, Ellie P. Watts and
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16 WOOLLEY V. HUTCHINS.
Supreme Court, Deeember, 1920. [Vol. 114.
Mary B. Richardson, and of my said wife, Adelaide
Leonard Pierce, to divide and distribute the income
of said trust estate as hereinafter provided, and
finally upon the death of my two half-sisters, Ellie P.
Watts and Mary B. Richardson, and my said wife,
Adelaide Leonard Pierce, or at the end of the afore-
said ten year period in case this should extend beyond
all of said three lives, to divide and distribute, sub-
ject to the provisions of paragraph ^ XI,' the principal
of said trust estate in manner hereinafter outlined.'*
By paragraph XVIII he gave the trustees power
to collect rents, income, dividends and profits arising
from the trust estate and to sell his real estate at pub-
lic or private sale and to subdivide it into lots, and
this power was also conferred with respect to real
estate purchased by the trustees, and power to lay out
streets and to improve real estate, and to lease it, and
to buy or sell real estate or to change realty into per-
sonalty, and personalty into realty, and to invest and
reinvest the proceeds in realty and personalty; and
he gave them power to administer and manage the
trust estate the same as he might have administered
and managed it, and to exercise their power without
obtaining authority from any court. He states in
paragraph XIX that besides the income for his wife
and half sisters he shall in the succeeding paragraph
make provisions for income from and create partici-
pating interests in the final distribution of the resid-
uary estate for the considerable number of the radiator
company and that those whom he desired to partici-
pate therein '* are the employes who at the time of
my death will be rightful legatees " under para-
graphs XIII to XVI inclusive, subject to later
defeasance for either of the limitations or conditions
imposed by that which follows : and he then classifies
them, designates them as ^' Benefit A, B, C & D em-
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WOOLLEY V. HUTCHINS- 17
Misc.] Supreme Court, December, 1920.
ployes '' the same as they are classified in the said last
mentioned paragraphs of the will. It is then stated
that wherever any benefit is provided for or conferred
upon any employee of the radiator company,
n • # • which is to issue from and ont of the resid-
uary estate, it will be understood that the beginning
of as well as the continuation of the enjoyment of such
benefit will be contingent upon such employe remain-
ing in good standing, to do which it will be necessary,
first, that he or she survives me, second, that he or she
survives the period when any particular share of such
benefit will mature for him or her and, third, that he
or she continues in the active employ of said American
Badiator Company, its successors or assigns, until the
maturity of any particular accruing share of the ben-
efit in his or her favor meaning and intending, that
no * Benefit A * employe, no * Benefit B * employe, no
* Benefit C * employe and no * Benefit D * employe,
whom I have named or may hereafter designate can be
regarded as in good standing excepting so long as he
or she meets all the aforesaid conditions. Upon the
failure of either of which the benefit shall from that
instant end, and pro tanto be treated as if never con-
ferred. The termination of employment with said
American Radiator Company if enforced by the offi-
cers of said Company shall be conclusive, final and
without right of appeal and will operate with like
effect as the voluntary leaving the employ of the
Company."
By paragraph XX he directed that out of the net in-
come of the trust estate the trustees pay quarterly of
each year thirty per cent to his wife, five per cent to
each of his half-sisters and that the remaining sixty
per cent should constitute a fund which he styled
** employees fund," and subject to the limitations of
paragraph XXXII he directed that it be distributed
2
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18 WOOLLEY V. HUTCHINS.
Supreme Court, December, 1920. [Vol. 114.
among the four classes of employees who should be in
good standing at the particular period for disburse-
ment in such manner that the members of class ** A *'
should receive eight-fifteenths; of class ^* B *' four-
fifteenths; of class ** C *' two-fifteenths, and of class
** D '* one-fifteenth. In that paragraph he also pro-
vided that on the termination of any of the three life
interests of his wife and half sisters the share of in-
come for such interest should fall into and become a
part of the employees* fund from which disburse-
ments were to be made to the beneficiary employees in
good standing, and that when all three of the life
interests should have terminated then the period for
final distribution to the employees ** will have arrived,
unless it be in abeyance for the unexpired portion of
the ten year period mentioned in paragraph XVII.*'
By paragraph XXXI he provided that when the time
for distribution arrived under paragraph XVII the
trust estate should be divided subject to the limitations
of paragraph XXXII and of the provisions of para-
graph XI.
(< • • # among the employees in good standing,
who are then members of Benefits A, B, C and D, in
the same proportions laid down by me for the division
of income, namely, each member of * Benefit A ' is to
receive 8 times as much as any member .of * Benefit
.D.' or 4 times as much as any member of * Benefit
C * or twice as much as any member of * Benefit B.*
Each member of * Benefit B ' is to receive four times
as much as any member of * Benefit D,* or twice as
much as any member of * Benefit C,* or one-half as
much as any member of * Benefit A. ' Each member of
* Ben-efit C * is to receive twice as much as any member
of * Benefit D,* or one-half as much as any member of
* Benefit B * or one-fourth as much as any member of
* Benefit A/ Each member of ' Benefit D * is to
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WOOLLEY V. HUTCHINS. 19
Misc.] Supreme Court, Deconber, 1920.
receive one-half as much as any memiber of * Benefit
C,' or one-fourth as much as any memher of ^ Benefit
B,' or one-eighth as much as any member of * Benefit
A/ *' That paragraph further provides :
** Realizing the possibility that all the members of
one or more of said four classes or benefits may in
consequence of death, resignation or otherwise, cease
to remain in good standing at some one of the future
periods for distribution of income or be so at the time
set for final division, I will add another illustration,
intended not to show a different method of division
for it will be identical with the one heretofore laid
down by me in connection with the division of income,
but given solely in demonstration of the rule's appli-
cation under conditions similar to those described for
the purpose of example in the following:
'' Five Members of ' Benefit A.'
** Twenty Members of * Benefit C
*' Forty Members of ' Benefit D.* ''
Further assuming that the value of the estate for
distribution is $120,000, the division would result in
the following:
Total
Each of the 5 members of * Benefit A ' would
receive $8,000 $40,000
Each of the 20 members of * Benefit C ' would
receive $2,000 40,000
Each of the 40 members of * Benefit D ' would
receive $1,000 40,000
$120,000
** It will be apparent that the foregoing illustration
applies equally well in the case of division of income
as in the instance of final distribution.''
By paragraph XXXII as amended by the codicil
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20 WOOLLBT V. HUTCHINS.
Supreme Court, December, 1920. [Vol. 114.
he limited the amount of annual income and the
amount on final distribution which any member of any
class should receive. By paragraph XXXIII added
by the codicil he directed that the trustees, in case
there should be a surplus of income owing to the limi-
tation on the distributions thereof contained in para-
graph XXXII should form the '' John B. Pierce Foun-
dation " and he specified what the object and purpose
thereof should be and provided that any surplus of
the corpus of the trust caused by the limitations with
respect to the distribution thereof should go to the
raid foundation. These are the only provisions of the
will deemed by any of the parties to be material to the
points presented for decision.
It is conceded that the trust is void under our stat-
utes providing against the suspension of the power of
alienation for a longer period than two lives in being
and forbidding the accumulation of rents and profits
save as authorized (1 E. S. §§ 14, 15; Real Prop. Law,
art. 3, §§ 42, 61), for the reason that in so far as it
fixes the period at ten years for its continuance it is
not limited on two lives iri being {Hone's Exrs. v. Van
Schaick, 20 Wend. 564; Haynes v. Sherman, 117 N. Y.
433) and in so far as limited to the lives of three per-
sons specified it suspends the absolute power of aliena-
tion, and suspends the vesting of title absolute for
more than two lives in being.
The trustees are unable to dispose of the real prop-
erty situate in this state for the reason that prospec-
tive purchasers question whether those whom the
trustees represent take the real estate, which owing to
the sufficiency of the personal property to pay the
cash legacies is part of the residuary estate, and
whether, if the heirs of the testator take the remainder,
the trustees have power to sell the real estate. The
real estate is situate in the counties of Erie and Niag-
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WOOLLEY V. HUTCHINS. 21
Misc.] Supreme Court, December, 1920.
ara, and the plaintiffs have filed in the offices of the
clerks of these counties exemplified copies of the will
and probate proceedings in Massachusetts. The trus-
tees have brought the action on the authority of
Monypeny v. Monypeny, 202 N. Y. 90, and section
1836a of the Code of Civil Procedure and sections 44
and 45 of the Decedent Estate Law against all the
heirs of the testator and his widow and his former
wife. The heirs who have appeared claim that para-
graphs XVII-XX, XXIII and XXVH in so far as they
affect the real estate in this state are void, and that
with respect to such real estate the testator died intes-
tate and his heirs inherited it. The answer of the
widow of the testator admits all the allegations of the
complaint and she joins with the plaintiffs in the
prayer for relief. The income derived from all the
property has never been sufficient to produce an excess
of income beyond the maximum amount which under
the will and codicil the employees of the different
classes were to receive and the John B. Pierce Founda-
tion has never been formed. The testator had no
dependents or relatives in whom he was specially inter-
ested excepting his widow, his former wife and his
two half-sisters, who were of about his age and chil-
dren of his mother by a second marriage. His other
relatives were descendants of children of his father
by a marriage prior to that with his mother, and with
a few exceptions he merely knew of their existence.
The learned counsel for the plaintiffs and for the
widow of the testator contend that under the authority
of many recent decisions of the Court of Appeals and
of the Appellate Division the invalid provisions of the
will with respect to the trust may be deleted and that
the remainder should be deemed to have vested upon
the death of the testator in the four classes of
employees who, if living and in good standing in the
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22 WOOLLBY V. HUTCHINS.
Supreme Court, December, 1920. [Vol.114.
service of the company at the termination of the void
trust were to take on the theory that it plainly appears
from the provisions of the will that the testator was
primarily interested in their taking the property. To
apply the rule to the case at bar would be carrying it
far beyond any of the authorities. It is a rule that has
been adopted to avoid intestacy in whole or in part,
but it is only applied where it is consistent with the
testamentary plan and scheme of the testator as shown
by the will and ordinarily its application is confined to
wills whereby the remaindermen who were to take at
the expiration of the period of the invalid trust are
definitely specified and nothing remains for them to do
after the death of the testator as a condition entitling
them to take and where the trust may be said to be col-
lateral to the desire of the testator that the remainder-
men should take. Kalish v. Kalish, 166 N. Y. 368; Mat-
ter of Hitchcock, 222 id. 57 ; Matter of Colgrove, 221 id.
455; Matter of Berry, 154 App. Div. 509; affd., 209 N.
Y. 540; Matter of Thaw, 182 App. Div. 368; Chastain v.
TUford, 201 N. Y. 338; Hascall v. King, 162 id. 134;
Brinkerhoff v. Seabury, 137 App. Div. 916; affd., 201
N. Y. 559; Smith v. Chesebrough, 176 id. 317; Matter
of Butterfield, 133 id. 473. In the case at bar, how-
ever, the testator gave outright upon his death to
thes'C classes of employees the amount of property
which he intended they should then receive and various
provisions of the will clearly show that he did not intend
that they should participate in the remainder unless
they continued in the service of the company in good
standing until the time for distribution arrived; and
the only apparent purpose of the ten-year period was
as a probationary period. Final distribution was not
to be made until the lapse of ten years, even though
the three life beneficiaries died long prior thereto. It
is argued that the ten year trust period was for the
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WOOLLEY V. HUTCHINS. 23
Misc.] Supreme Court, December, 1920.
convenience of the estate and the plaintiffs; but that
cannot be for the testator had very little property
other than common and preferred stock in the radiator
company. I appreciate, of course, that the remainder-
men although divided into classes are all named; but
while if the remainders were vested in them we might
accelerate the vesting in possessions, I think that rule
may not be applied where the application might enable
remaindermen to take who were not certain of taking
ultimately under the will as drafted. I am of opinion,
therefore, that to delete the invalid provisions of the
will and declare that the remainder vested in these
employees immediately upon the death of the testator
would in effect be making a new will for it is wholly
problematical as to whether the testator, if he thought
these provisions were invalid, would have given the
different clas-ses of employees the entire remainder or
any part of it. Moreover it will be seen that the pro-
visions of paragraph XVII as amended by the codicil,
which are the only provisions under which the different
classes of employees can claim as remaindermen, are a
direction ** to divide and distribute, subject to the pro-
visions of Paragraph XI," which relates to the
annuity of the former wife of the testator. The princi-
pal of the trust estate he directs shall be divided
and distributed ** in manner hereinafter outlined,"
deferring to paragraph XXXII, which places a specific
limitation on the amount to be paid over to each of the
employees of the different classes. It will thus be seen
that the testator did not intend that these remainder-
men in any and ail events should take the entire princi-
pal of the trust estate and he expressly provided in
paragraph XXXIII, added by the codicil, that any
surplus of the principal of the trust estate left after
paying to each remainderman the maximum amount
specified in paragraph XXXII as amended by the
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24 WOOLLEY V. HUTCHINB.
Supreme Court, December, 1920. [Vol. 114.
codicil should be paid over to the *' John B. Pierce
Foundation." In these circumstances the court, I
think, is not warranted in deleting all these provisions
with respect to the trust and declaring that the
remaindermen took the entire principal precisely the
same as if the testator had included it in the other
absolute legacies to them immediately on his death.
The learned counsel for the plaintiflfs contend that the
will should be construed as vesting the entire
remainder which the testator intended as a trust estate
in the remaindermen subject only to be divested as to
any of them dying before the period for distribution
or failing to remain an employee in good standing until
such period. 1 think that is not the true construction
of the will. It must be borne in mind that by para-
graph XIX hereinbefore quoted the testator provided
that the right of any employee to participate in the dis-
tribution of the principal was contingent upon such
employee remaining in good standing as an employee
and continuing in the active employment of the
radiator company, its successors or assigns, until by
the expiration of the trust period the period for divi-
sion and distribution should arise and he therein
expressly provided that in default of that the benefit
intended for such employee should end and ^* be treated
as if never conferred " and he left it entirely to the
officers of the radiator company to terminate the
employment of any employee and made their action
with respect thereto as final and conclusive as a volun-
tary relinquishment of the employment of the
employee ; and it is also to be borne in mind that the
testator attempted to vest the title to the trust estate
in the trustee during the period of the trust with full
authority to sell and convey and to invest and to re-
invest and on that theory the absolute power of aliena-
tion would not have been suspended, Robert v. Corn-
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WOOLLEY V. HUTCHINS. 25
Misc.] Snpreme Court, December, 1920.
ing, 89 N, Y. 225, 235. In these circumstances I am of
opinion that the remainder did not vest in the
remaindermen on the death of the testator but that
their interests were contingent and as to the principal
were intended to vest only at the expiration of the
period of the trust provided that in the meantime they
remained in the active employment of the company and
in good standing. The case, I think, fairly falls within
the rule that where there is not a direct devise or be-
quest to remaindermen but merely a direction to execu-
tors or trustees to pay over to or divide among a class
at a future time the vesting does not take place until
the arrival of that time and the gift is contingent upon
survivorship and futurity is annexed thereto. Warner
V. Durant, 76 N. Y. 133; Delafield v. Shipman, 103 id.
463; Dougherty v. Thompson, 167 id. 472; Davis v.
MacMahon, 161 App. Div. 458; affd., 214 N. Y. 614;
Hennessy v. Patterson, 85 id. 91; Booth v. Baptist
Church, 126 id. 215. If the testator had given the
entire remainder to the remaindermen and it were cer-
tain that identically the same remaindermen would
take at the expiration of the trust period as if the gift
to them were at the death of the testator then the
invalid trust might be deleted, but here even if it could
be held that the remainder vested in these various
employees upon the death of the testator it was subject
to be divested by death, resignation or discharge
from the employ of the company prior to the time
when under any theory of construction it is clear that
the testator intended it should vest in them in posses-
sion. Davis V. MacMahon, supra; Booth v. Baptist
Church, supra; Cochrane v. ScheU, 140 N. Y. 516;
Knox V. Jones, 47 id. 389. See, also, Matter of Butter-
field, supra. The learned counsel for the heirs con-
tends that a gift of a remainder which is vested but
limited to take effect at the expiration of an invalid
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26 WOOLLEY V. HUTCHINS.
Supreme Court, December, 1920. [Vol. 114.
trust is void and he cites therefore Knox v.* Jones,
supra; Matter of Wilcox, 194 N. Y. 288, but he
concedes that those authorities are apparently in con-
flict with Matter of Berry, 154 App. Div. 509; aflfd., 209
N. Y. 540, and he endeavors to reconcile Matter of
Berry, supra, with the former decisions on the ground
that the remainderman in that case was a charitable
corporation. I think the earlier rule has been modified
by Matter of Berry to the extent that where the
remaindermen are definitely fixed and would neces-
sarily be the same at the expiration of a void trust as
at the time of the death of the testator then the void
trust may be deleted and the remaindermen be per-
mitted to take in instanter, but that it is not this case
for here the remainders were, I think, contingent and
it cannot be said that the remaindermen would be the
same at the time the testator intended they should take
as at the time of his death and therefore they may not
be permitted to take by deleting the invalid provisions.
Brinkerhoff v. Sedbury, supra. Manifestly the prim-
ary purpose of the testator in creating the invalid trust
was either to put the employees who wer^ to become
remaindermen on probation or for the benefit of his
widow and two half-sisters. If for the benefit of the
latter then such primary purpose may not be dis-
regarded and the disposition of principal as well as
income would be void ; if as I think his primary pur-
pose was to insure the continuance of the remainder-
men as faithful employee& then too I think such pri-
mary purpose may not be disregarded and the
employees should not be permitted to take as if they
had complied with the conditions imposed on them by
the testator throughout the trust period. I am, there-
fore, of opinion that the heirs take the real estate of
the testator situate in the state of New York subject
to the ohargea thereon for the payment of the annuity
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WOOLLEY V. HUTCHINS. 27
Misc.] Supreme Court, December, 1920.
to the first wife of the testator and to the payment of
the debts of the testator and funeral expenses and the
inheritance taxes and any other public or governmental
charges and subject to the payment of the cash legacies
given by the will if needed therefor.
The remaining question is as to whether the trustees
have a valid power of sale under which they may con-
vey good title to the real estate. It was competent for
the testator if he saw fit to devise his real property to
his executors and trustees for the purpose of sale and
that would be valid as a power to sell even though he
did not by the will dispose of the remainder left after
the payment of his debts and funeral expenses or other
charges and where he creates an invalid express trust
and directs or authorizes his executors or trustees to
perform an act which may be lawfully performed
under a power such as to sell his real estate the trust
is valid as a power in trust. Eeal Prop. Law, §§ 97, 99.
The provisions of the will are, I think, sufficiently
broad to authorize the executors and trustees to sell
the real estate of the testator even though the provi-
sions with respect to the use and disposition thereof in
so far as it concerns the trust may be invalid. It is
not material to the heirs whether the executors and
trustees are empowered to sell the real estate for they
will be accountable to the heirs for the proceeds there-
of and doubtless it would be much more convenient to
have the sale made by them than by the heirs who are
numerous and scattered throughout the country. In
so far as the testator attempted to devise the real
estate here to the executors and trustees in trust with
authority to sell in order to carry out the purposes of
the invalid trust no title to the trust estate passed to
the executors and trustees and the attempt to confer
authority on them to sell the real estate for the pur-
poses of the invalid trust falls with the trust. Bene-
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28 WOOLLET V. HUTCHINS.
11. II - I ^
Supreme Court, December, 1920. [Vol. 114.
diet V. Webb, 98 N. Y. 460; Garvey v. McDevitt, 72
id. 556 ; Brewer v. Brewer, 11 Hun, 147 ; aff d., 72 N. Y.
603 ; Haynes v. Sherman, 117 id. 433 ; Dana v. Murray,
122 id. 604; Allen v. Allen, 149 id. 280. In Chamber-
lain V. Taylor, 105 N. Y. 184-194, it is stated that the
doctrine of equitable conversion only applies to
property validly devised, but it was at least assumed
in Hobson v. Hale, 95 id. 588, 607, that it may obtain
where there has been no valid disposition of the prop-
erty by the will.
If, however, a sale of the real estate in question be
necessary to render effectual any of the valid provis-
ions of the will or to enable the executors and trustees
to perform any of their duties, then, I think, they
would be authorized to sell under the power of sale.
Chamberlain v. Taylor, supra; Asche v. Asche, 113
N. Y. 322. No actual necessity for a sale for the pay-
ment of debts or funeral expenses or legacies has been
shown ; but it appears that ancillary letters were duly
issued to the executors and trustees by the Surrogate's
Court of Erie county, and that a proceeding was duly
instituted to determine the amount of the transfer tax
on the real estate in question and that the amount
thereof was duly determined and assessed, and it
thereupon became the duty of the executors and trus-
tees to pay it and they did so prior to the commence-
ment of this action. I am of opinion that it was their
duty under the will to pay the transfer tax and thai;
for that purpose they were authorized by the power
of sale contained in the will to sell the real estate or
any part thereof. The transfer taxes were liens on
the real estate and equity requires that the plaintiff
as against the heirs be subrogated to the lien of the
state. Title to the real estate not having passed under
the will, but having vested in the heirs subject to the
exercise of the power of sale for any authorized pur-
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WOOLLBT V. HUTCHINS. 29
Misc.] Supreme Court, December, 1920.
pose, the proceeds of such a sale not required for the
purpose for which the sale was made would necessarily
still be deemed realty, and the title of the heirs would
remain unaffected by such a sale excepting by being
transferred from the land to the proceeds of the sale.
It appears that the plaintiffs in good faith took charge
of this real estate under the will and have collected
rents, kept buildings in repair and paid all taxes,
insurance and other charges against the same. In so
doing they have expended from the funds of the estate
many thousand dollars more than they have received.
No heir has questioned their authority and control
over this real estate and it is reasonably to be inferred
that all the heirs have acquiesced therein. In the cir-
cumstances the heirs should be deemed estopped from
claiming that such expenditures were voluntarily
made by the plaintiffs and without authority under
the will.
A decree may be prepared construing the will and
power of sale in accordance with these views and
adjudging that the plaintiffs are authorized under the
power of sale to sell the real estate and reimburse the
estate for all expenditures so mad'e for transfer taxes,
and in managing the real estate in question, together
with interest thereon and for the payment of all costs
and allowances to be authorized and allowed by the
decree to be settled on notice, and authorizing a sale
of the real estate in question by the plaintiffs as such
executors and trustees in separate parcels to the
extent necessary to satisfy the lien for the transfer
tax and the lien in their favor which will be given by
the decree for their expenses and disbursements in
handling the real estate and the costs and allowances
that will be provided for in the decree.
Judgment accordingly.
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30 RzEPECKA V. Ubbanowski.
Supreme Court, December, 1920. [Vol. 114.
Praksyda Rzepecka, Plaintiff, v. Michael Urbanow-
SKi, Defendant.
(Supreme Court, Erie Equity Term, December, 1920.)
Adjoining owners — establishing title — when lot owner cannot
take forcible possession of a disputed strip of land — deeds —
injunctions — ejectment — Code Oiv. Pro. § 968.
A lot owner, except by virtue of a judgment in a proper
action establishing his title, cannot take forcible possession of a
disputed strip of land claimed by an adjoining lot owner.
Where in an action between adjoining lot owners on a city
block to determine the title to a strip of land to which plaintiff
claims title by adverse possession, it appears that the prop-
erties of both parties are about two feet off the line as given
in their respective deeds, a permanent injunction will be
granted restraining the defendant from moving a building onto
the disputed strip after he had torn down the division line
fence.
The remedy of the defendant is an action of ejectment in
which, under section 968 of the Code of Civil Procedure, he,
as plaintiff, would have the right to have the issues framed
tried by a jury.
Action to establish title to real property.
Henry W. Brush, for plaintiff.
E. D. Vincent, for defendant.
Wheeler, J. The parties to this action own adjoin-
ing lots fronting on Detroit street in the city of Buf-
falo. It would appear from the testimony of sur-
veyors that the properties of practically all the lot
owners in the block in question as actually occupied
by them, do not correspond to the record descriptions
contained in their deeds, but are about two feet off
their true line. This seems to be the case with the
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BZEPECKA V. UrBANOWSKI. 31
— , tf
Misc.] Supreme Court, Deccriiljcr, 1920.
plaintiff's lot. Nevertheless, the plaintiff contends
that she and her grantors have occupied the premises
in question under claim of title for upwards of twenty
years^ and have thereby acquired title by adverse
possession.
There has stood on the line purporting to divide the
properties of the plaintiff and defendant, a fence.
Shortly prior to the commencement of this action the
evidence shows the defendant tore this division fence
down, and started to move a building upon the dis-
puted strip. Whereupon the plaintiff procured a pre-
liminary injunction against the defendant so doing,
and on this trial asks for a permanent injunction
restraining such threatened action on the part of the
defendant.
We think the plaintiff entitled to the judgment
asked.
Section 2233 of the Code of Civil Procedure pro-
vides: ** An entry shall not be made into real prop-
erty, but in a case where entry is given by law ; and,
in such a case, only in a peaceable manner, not viitb
strong hand, nor with multitude of people. A person
who makes a forcible entry forbidden by this section,
or who, having peaceably entered upon real property,
holds the possession thereof by force, and his assigns,
undertenants, and legal representatives, may bp
removed therefrom, as prescribed in this title.''
This statute the defendant threatened to violate,
and to take the law into his own hands by forcibly
seizing possess-ion of the disputed strip.
If the plaintiff disputed the defendant's rights, and
that she did, the defendant's remedy was to appeal
to the courts by an action of ejectment where the
legal rights of the parties may be determined by law.
The plaintiff in such an action has the right to have
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32 BzEPECKA V. Urbanowski.
Supreme Court, December, 1920. [Vol. 114.
the issues framed tried by a jury. Code Civ. Pro.
§ 968.
The defendant ought not to be permitted in advance to
become judge, jury and sheriff in his own case. As was
said by Mr. Justice Miller in the case of Iron Moun-
tain, etc., Rd. V. Johnson, 119 U, S. 608, 611: *' The
general purpose of these statutes is, that, not regard-
ing the actual condition of the title to the property,
where any person is in the peaceable and quiet posses-
sion of it, he shall not be turned out by the strong
hand, by force, by violence, or by terror. The party
so using force and acquiring possession may have the
superior title or may have the better right to the
present possession, but the policy of the law in this
class of cases is to prevent disturbances of the public
peace, to forbid any person righting himself in a case
of that kind by his own hand and by violence, and to
require that the party who has in this manner obtained
possession shall restore it to the party from whom it
has been so obtained; and then, when the parties are
in statu quo, or in the same position as they were
before the use of the violence, the p»arty out of pos-
fiion must resort to legal means to obtain his posses-
sion, as he should have done in the first instance. This
is the philosophy which lies at the foundation of all
these actions of forcible entry and detainer, which are
declared not to have relation to the condition of the
title, or to the absolute right of possession, but to
compelling the party out of possession, who desires
to recover it of a person in the peaceable possession,
to respect and resort to the law alone to obtain what
he claims."
We do not in this case undertake to determine which
of the parties to this action has the superior title to
the disputed strip. That is not the question in pro-
ceedings for forcible entry and detainer. In such
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People v. Zittel. 33
Misc.] Court of Gen. Sessions, N. Y. County, December, 1920.
Aases the plaintiff must succeed even though the
defendant can show superior title or right of
I)ossession. Kelly v. Sheehy, 60 How. Pr. 439; Town
of Oyster Bay v. Jacob, 109 App. Div. 615.
We simply decide that the defendant cannot with-
out the judgment of the court in a proper action es-
tablishing his title take forcible possession of the dis-
puted strip of land, and that the plaintiff is entitled to
the judgment of this court restraining such acts on
the defendant's part.
Judgment accordingly, with costs to plaintiff.
The People of the State of New York, Plaintiff, v.
Edwin E. Zittel, Frank M. Zittel, Elson Freeze
and Philip Katz, Defendants.
(Court of General Sessions of the Peace, County of New York,
December, 1920.)
Indictments — when motion to dismiss granted — what constitntes
a criminal conspiracy — landlord and tenant — evidence —
criminal law — Penal Law, § 580(5).
To constitute a criminal conspiracy it must appear either
that the parties charged therewith agreed to commit a crime or
that they agreed to employ criminal means to accomplish a
lawful end. (P. 37.)
Section 580(5) of the Penal Law does not apply to real
estate. (P. 38.)
A landlord who, before the expiration of the lease and in
violation thereof, by means which violate no then existing stat-
ute, reenters the premises in the absence of the tenant, to make
repairs, is a mere trespasser and commits no crime by such act.
(P. 37.)
Where on motion to dismiss an indictment charging a land-
lord and the superintendent of an apartment house in the city
of New York with conspiracy under section 580(5) of the
Penal Law it appears that the defendants, in entering the
3
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34 People v. Zittel.
Court of Gen. Sessions, N. Y. County, December, 1920. [Vol. 114.
apartment of one of the tenants in his absence for the pur-
pose of making repairs, were not guilty of an unlawful or
forcible entry, the motion will be granted on the ground that
there was no legal evidence to sustain the indictment.
It is not every violation of a legal right that constitutes a
erime, and if the tenant sustained damage b^' reason of the
act of defendants, his remedy is by a civil action. (P. 38.)
Motion to dismiss an indictment.
Edward Swann, District Attorney (Alfred J. Tal-
ley, Robert S. Johnstone, Ferdinand Q. Morton, As-
sistant District Attorneys, of counsel), for the
People.
William H. Chorosh, for defendant Katz.
Frederick J. Groehl, for defendants Zittel and
Freeze.
MuLQUEEN, J. This is a motion to dismiss an
indictment charging the defendants with conspiracy,
in violation of subdivision 5, section 580 of the Penal
Law. The defendants having been allowed to inspect
the minutes of the grand jury, contend that there is
no legal evidence to sustain the indictment.
It appears that for four years under lease granted
by the defendants Zittel, the complainant had occu-
pied an apartment of ten rooms on the fourth floor of
the apartment house, No. 838 West End avenue, in
the county of New York. His lease expired Septem-
ber 30, 1919. In May of that year he notified the
defendants Zittel that he did not intend to renew the
lease. The defendant Freeze is the superintendent of
the said building. About June first defendant Katz
leased the apartment for a term beginning October 1,
1919. On June fifth, the complainant closed his apart-
ment and with his family consisting of his wife and
five children went to the country. About the third
of September he removed some of his belongings from
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People v. Zittbl. 35
Misc.] Court of Gen. Sessions, N. Y. County, December, 1920.
838 West End avenue and on September tenth he
removed most of his furniture to another apartment
he had hired, leaving at the AVest End avenue rooms
a parlor set of furniture in the parlor, some clothes
in the closets, linen in the linen closet and a lot of
children's toys and other things, in all about a van
load. These articles were all removed by the com-
plainant on September twenty-seventh to his new
apartment. None of this property was lost or in any
way damaged.
When defendant Katz leased the apartment on June
first, the defendants Zittel agreed to make extensive
repairs, the defendant Katz consenting to pay $500
as his share of the cost. In September the defendant
Katz urged the Zittels to have this work done so that
the apartment might be ready for occupancy as soon
as possible ; he urged that his wife was in a sanitarium,
that her doctors had told him that her health would
improve if she were taken home to live with her hus-
band and her children; that he had offered the com-
plainant six weeks' rent, if he would surrender pos-
session on September fifteenth ; that his offer had been
refused; he also assured the defendants Zittel that he
would pay any judgment that might be rendered
against them, if they were mulcted in damages, for
re-entering the apartment, without the consent of the
complainant, prior to October first.
The Zittels yielded to his importunities, and directed
the defendant Freeze to proceed with the repairs.
Accordingly. Freeze gave the order and on September
thirteenth the painters began their work. On the
afternoon of the fifteenth, complainant's wife went to
the apartment and found the painters at work; they
did not leave when requested by her, and the defend-
ant Freeze refused to remove them. She went to a
police station, where the lieutenant in charge properly
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36 People v. Zittel.
Court of Gen. Sessions, N. Y. County, December, 1920. [Vol. 114.
refused to send a policeman to the premises. She
then went to the office of the Zittels and demanded that
the workmen be removed, and be kept out of her apart-
ment. She returned to the apartment on the morning
of the sixteenth and found the workmen in the rooms-.
Freeze again refused to order them to leave. On the
seventeenth, the complainant went to the house and
requested the defendant Freeze to remove the paint
pots and other things from the apartment and to keep
the men out. Freeze promised to do so. On the eigh-
teenth, complainant's wife again visited the apart-
ment and found five or six workmen there. The par-
lor furniture had been removed to another room, and
part of the flooring had been taken up. She called up
her attorney and on his advice procured a summons
for Freeze to appear before a magistrate. She
returned with the summons, but Mr. Freeze and the
men refused to leave. She then went to the police
station; but the lieutenant again refused to send an
officer to tho apartment. She returned on the nine-
teenth, and found no workmen in the rooms, but on
the twentieth and twenty-first the men were again at
work. On the latter day, which was Sunday, the men
left at her request, although Freeze directed them to
remain. Meanwhile, the magistrate had dismissed the
complaint of unlawful entry. Complainant's wife did
not return to the apartment, but on the twenty-second
the complainant went there with a friend. They went
to the fourth floor, and found that the lock had been
changed so that they could not enter the apartment.
They went downstairs and waited for Mr. Freeze, who
refused to let them use the elevator, and said he had
orders from the Zittels not to allow complainant to go
above the ground floor. On the twenty-third the com-
plainant secured a summons in the Magistrate's Court,
directing Mr. Freeze to answer a complaint of disor-
Digiti
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People v. Zittel. 37
Misc.] Court of Gen. Sessions, N. Y. County, December, 1920.
derly conduct. On the twenty-fourth the magistrate
ordered Mr. Freeze to give the new keys to the com-
plainant. Freeze promised to comply, but failed to
do so. The complaint was nevertheless dismissed by
the magistrate. Complainant returned to the premi-
ses with his friend and a county detective and an offi-
cial from the district attorney's office. Mr. Freeze
refused to give them the keys or to allow them to use
the elevator. They managed to gain access to the
fourth floor, but found the doors locked, and they were
unable to enter the apartment. After much discussion
they left but complainant returned later in the even-
ing and Mr. Freeze allowed him to enter the apart-
ment to get some articles. Next day he went to the
district attorney's office. Then the keys were given
to him, and he removed the remainder of his property
on September twenty-seventh to his new home.
I have stated the facts fully to clearly demonstrate
that the" learned magistrate committed no error in
deciding that the defendants were not guilty of unlaw-
ful entry, and that there had been neither a forcible
entry into the premises nor a forcible detainer thereof.
The learned district attorney evidently is of the same
opinion, as he has not charged the defendants with
these crimes. He procured an indictment charging
conspiracy. To constitute conspiracy it must appear
either that the defendants agreed to commit a crime,
or that they agreed to employ criminal means to
accomplish a lawful end. In this case the end sought
was the repair of the landlord's property, which is not
a crime, and the means employed violated no statute in
existence at that time. Assuming that the landlord
violated the provisions of the lease, by re-entering in
the absence of the tenant, to make repairs before the
expiration of the term, that at most would make him a
trespasser. But such a trespass was not a crime.
Penal Law, §§ 1425, 2036,
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38 People v. Zittel.
Court of Gen. Sessions, N. Y. County, December, 1920. [Vol. 114.
If the complainant sustained damage by reason of
the defendants' acts, his remedy must be sought in the
civil courts. Not every violation of legal right is a
crime. Furthermore it has been held that subdivision
5 of section 580 of the Penal Law does not apply to
real estate. People v. New York <& Manhattcm Beach
R. Co., 84 N. Y. 569. This case was cited by Mr.
Justice Greenbaum on granting a certificate of reason-
able doubt to defendants who had been convicted of
conspiracy in the Court of Special Sessions on the
charge that they had instigated a ** rent-strike.*'
People V. Weser, N. Y. L. J., December 3, 1919.
The learned district attorney maintains that the cer-
tificate of the learned justice was merely the expres-
sion of a doubt as to the legality of a conviction of per-
sons who were in prison, and that it should not receive
the weight of a well-considered opinion. On the con-
trary, I regard the ruling of the learned justice, who
is now a member of the Appellate Division, as a correct
statement of the law defined in the earlier case.
The learned district attorney vigorously opposes
this motion, and as the issue was deemed of great
importance to the conununity in view of the housing
conditions at that time, and as the defendants were on
bail, I deemed it advisable to await the decision of the
Appellate Division. But that appeal has not been
heard ; new laws have been enacted, and this case has
appeared several times on the daily calendar of this
court for trial. The decision should not be delayed
further. It is, perhaps, proper to add that the so-called
rent laws have not been considered, as their enactment
was subsequent to these occurrences.
Bail discharged and indictment dismissed as to all
the defendants.
Indictment dismissed.
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Matter op Goodwin. 39
Misc.] Surrogate's Court, New York County, December, 1920.
Matter of the Estate of Nat C. Goodwin, Deceased.
(Surrogate's County, New York County, December, 1920.)
Qif ts — cansa mortis — acconnting — ezecators and administratora
— jurisdiction — Surrogate 's Court — evidence — Code Oiv.
Pro. § 2679.
Objection having been made to the accounts of an adminis-
trator for failure to account for the proceeds of a judgment
assigned by the decedent and satisfied of record, a motion to
dismiss the objection, on the ground that the Surrogate's Court
has no jurisdiction to determine the issues involved, will be
denied under section 2679 of the Code of Civil Procedure.
Where, with the exception of delivery, all the other elements
of a gift causa mortis of household furniture, of which decedent
had no right of possession until the termination of the lease of
an apartment which he had sublet, were amply proved and con-
ceded, and it appears that he had given the donee the keys of
the apartment before the gift was formally evidenced by a
writing, it will be held that t^ere was a valid gift causa mortis.
Proceedings upon the accounting of an administra-
tor.
House, Grossman & Vorhaus, for administrator.
Rosenthal & Halperin (Max Halperin, of counsel),
for Georgia Gardner,
Dittenhoefer & Fishel (I. M. Dittenhoefer, of coun-
sel), for objectants M'arc Klaw and Abraham L. Ehr-
langer.
Hedges, Ely.& Frankel, for creditor of decedent,
Tohn Wanamaker.
CoHALAN, S. Jurisdictional question:
Objection is made to the account upon the ground
that the administrator has failed to account for the
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40 Matter of Goodwin.
Surrogate's Court, New York County, December, 1920. [Vol. 114.
proceeds of a judgment in the sum of $1 5,374.56, which
was satisfied of record on August 5, 1919. Upon show-
ing that the judgment was assigned by the decedent
during his lifetime the administrator moves to dis-
miss this objection upon the ground that a deter-
mination of this issue involves the exercise of general
equitable power which the surrogate does not possess.
The administrator relies upon Matter of Schnabel,
202 N. Y. 134, and the objecting creditors upon Matter
of Watson, 215 id. 209.
In Matter of Schnabel, supra, it appeared that the
intestate had delivered to his wife, the administratrix,
a bill of sale which transferred to her a saloon busi-
ness. Upon her accounting objections were filed upon
the ground that she had not accounted for the proceeds
of the sale of the saloon business. The administratrix
set up the bill of sale, which was found to be fraudulent
and void. The Court of Appeals held that notwith-
standing the provisions of section 2731 of the Code of
Civil Procedure, the surrogate had no jurisdiction to
set aside the bill of sale.
In Matter of Watson, supra, a similar situation
arose. Objections were made to the executors' account
upon the ground that they failed to account for a ruby
ring and a pearl necklace which it was alleged belonged
to the testatrix at the time of her death. One of the
accountants claimed that the ring and necklace had
been given to her by the decedent. Upon the
authority of Matter of Schnabel, supra, the Appellate
Division decided that the surrogate had no jurisdic-
tion to determine the issue. The Court of Appeals,
however, said (215 N. Y. 211) :
** The appellant in this case merely invoked the
jurisdiction of the surrogate to compel an executor to
account for the property of the testator, and the exer-
cise of that jurisdiction depended solely on the
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Matter of Goodwin. 41
Misc.] Surrogate's Court, New York County, December, 1920.
determination of the question of fact whether the prop-
erty belonged to the testatrix at the time of her death.
If the mere assertion of a claim of ownership by an
executor ousts the surrogate of jurisdiction to compel
an account of the property of the testator, it will be a
simple matter to accomplish that result in every case
in which an executor may prefer some other tribunal.
Section 2731 of the Code of Civil Procedure, prior to
the amendment of 1914, provided in part as follows:
* On the judicial settlement of the account of an exec-
utor or administrator, he may prove any debt owing
to him by the decedent. Where a contest arises be-
tween the accounting party and any of the other par-
ties respecting property alleged to belong to the estate,
but to which the accounting party lays claim either
individually or as the representative of the estate, or
respecting a debt, alleged to be due by the accounting
party to the decedent, or by the decedent to the
accounting party, the contest must, except where the
claim is made in a representative capacity, in which
case it may, be tried and determined in the same man-
ner as any other issue arising in the surrogate's
court.' It would seem that the present case falls
within both the letter and the spirit of the provision
just quoted.''
Section 2731 of the Code of Civil Procedure as
above quoted (now 2679) is substantially the same as
now, so far as this question is concerned. To show
'* That the Surrogate's Court has jurisdiction to try
and determine the issues arising upon such a contest
as was involved in this case " (p. 213), the Court of
Appeals in the Watson case (p. 213) cited several
Surrogate's Court cases, among which are Matter of
Ammarell, 38 Misc. Rep. 399, which involved an assign-
ment, and Matter of Munson, 70 id. 461, which involved
the validity of a mortgage and other instruments, and
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42 Matteb of Goodwin.
Surrogate's Court, New York County, December, 1920. [Vol. 114.
Matter of Archer, 51 id. 260, which involved an assign-
ment of savings bank accounts. In each of these cases
the same question of jurisdiction was raised that is
involved in this case. After citing these cases the
Court of Appeals said (p. 213) : ** Plainly the Surro-
gate's Court has jurisdiction to try and determine
issues arising upon any contest respecting a debt
alleged to be due by the accounting party to the deced-
ent or by the decedent to the accounting party. With
equal reason it should have jurisdiction to determine
conflicting claims of ownership to personal property
between an accounting party and his estate. The trial
and determination of such issues falls far short of the
exercise of general equitable jurisdiction, and we think
that the statute was intended to confer jurisdiction in
both classes of cases.*' By the above language and by
the citation of Surrogate's Court cases involving the
validity of assignments and mortgages it appears that
the Watson case practically overruled the earlier
Schnabel case. Section 2731 of the Code of Civil Pro-
cedure (now 2679) is now held to mean just what it
says.
If the question of jurisdiction were in any
doubt after the Watson decision the subsequent revi-
s:ion of chapter 18 of the Code of Civil Procedure, in
1914, including the enactment of section 2510 of the
Code of Civil Procedure, as it now reads, seems to give
to the Surrogate's Court an ample grant of jurisdic-
tion. Even under the narrowing constructions of sec-
tion 2510 of the Code of Civil Procedure, that have
been adopted by the Appellate Division beginning
with the Holdworth case (166 App. Div. 150), sub-
divisions 3 and 4 of section 2510 of the Code of
Civil Procedure, read in connection with the general
grant of jurisdiction contained in the first paragraph
of the section, are certainly suflBcient. Matter of
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Matteb of Goodwin. 43
Misc.] Surrogate's Court, New York County, December, 1920.
Brady, 111 Misc. Rep. 492. The motion to dismiss
this objection is denied.
Question of gift :
Miss Georgia L. Gardner claims title to the furniture
referred to in Schedule G of the account through a gift
causa mortis. It appears to be practically conceded
that Mr. Goodwin died of the ailment from which he
was suffering when he made the gift. All of the other
elements of a gift catisa mortis, except delivery, were
amply proved and in effect conceded at the hearing.
This is the only question discussed in the briefs sub-
mitted. The gift is alleged to have been made Decem-
ber 26, 1918. It was evidenced by a writing which
among other things stated, ** To you Georgia L. Gard-
ner, in the event of my death, I give you the entire con-
tents of my apartment at No. 601 West One Hundred
and Fifteenth street to do with as you see fit.'* It
appears that when the alleged gift was made the apart-
ment was sublet and Mr. Goodwin was receiving the
rent. One of the witnesses testified that the intestate
asked Miss Gardner ** if she had a list of the inventory
of the apartment which he had sent her to get on the
sublet and asked her if she had the keys to the apart-
ment, with the list, and she answered, *Yes,' and from
that the conversation led into the drawing of this paper
at his dictation." Mr. Goodwin spoke of how much
Miss Gardner had done for him and stated that the
furniture was all he had ; that he did not expect to live
very long, and expressed anxiety to do as much as he
could for her; that he wanted her to have the apart-
ment and that she should have it in writing. Later, on
December 31, 1918, in the presence of another witness,
the intestate again stated that he wanted Miss Gard-
ner to have the title to the apartment. Miss Gardner
was present and the paper was produced and Mr.
Goodwin read it aloud. Miss Gardner produced a copy
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44 ilATTlLR OF GoOUV.'IN.
Surrogate's Court, Xeu York County, December, 1920. [Vol. 114.
of this paper at the hearing and it was stipulated that
it be used in place of the original, which had been sub-
mitted to this court upon a prior application and has
not yet been found.
It thus appears that the donor had already given the
keys of the apartment to Miss Gardner before the gift
was formally made. It was not necessary for him to
ask her for the keys and again formally present them
with the paper that he executed. It seems to be suf-
ficient if he referred to the fact that she had the keys
and therefore possessed the means to reduce the furni-
ture to possession. She was not lK>und to do so at
once. In fact, Goodwin's gift was subject to the lease
of the apartment with the furniture included. He had
no right to the possession of the furniture until the
termination of the lease. The fact of the existing lease
and the collection of rent by him does not prove there
was no delivery. It may also be pointed out that the
testimony of the maid as to the keys is merely negative.
She knew of two sets of keys only and said that her
employer, Mr. Goodwin, did not have possession of
either of them during the period when the gift was
made. Unknown to her, however, he doubtless had a
set of keys, which must have been the ones referred to
by the witness, who testified to his statement that Miss
Gardner already had the keys.
A symbolical delivery is sufficient. But even in gifts
inter vivos, where the rule as to delivery is more
strict, there is authority for the proposition that where
the gift is evidenced by a writing, as in this case, the
ordinary rules as to delivery are somewhat relaxed.
See Matter of Colin, 187 App. Div. 392; Hawkins v.
Union Trust Co., Id. 472.
I will hold that the intestate made a valid gift causa
mortis to Miss Gardner.
Decreed accordingly.
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Matter of Lincoln. 46
Misc.J Surrogate's Court, New York County, December, 1920.
Matter of the Estate of Lowell Lincoln, Deceased.
(Surrogate's Court, New York County, December, 1920.)
Transfer tax—- what not subject to — partnership agreement —
good will — evidence — services — when deduction from net
profits for salaries unauthorized.
Where by a partnership agreement the money standing in
the name of a partner is to be credited on the first days of
January and July in each year, the share of a partner in the
capital with interest to the date of his death, September 2,
1917, represents the value of the transfer at his death, and a
claim of the executors in a transfer tax proceeding that the
interest be discounted to January 1, 1918, is properly
disallowed.
The partnership agreement provided that the capital of the
member of the firm who died during the continuance of the
copartnership should remain in the business for a period of
not exceeding nine months subsequent to his death and that his
personal representatives should receive the same interest on
capital and the same share of the profits for that period as was
provided by the copartnership agreement. Held, that as the
profits for the nine months succeeding decedent's death were
not due and payable under the partnership agreement until the
expiration of the period therein fixed, and carried no interest,
the amount of said profits should be discounted so as to ascer-
tain its value as of the date of decedent's death.
The business of the firm was that of selling goods on com-
mission and the unusual earnings for the years 1916 and 1917,
which the transfer tax appraiser in estimating the value of the
good will included in his average of profits, were due solely
to the extraordinary increase in the inventory value of the
merchandise, on the sale of which commissions were received.
Held, that in the circumstances the profits for those years
should have been excluded.
The profits of the year 1914 should have been eliminated
because of the conditions which resulted in profits far below
normal earnings, and the average for 1912, 1913 and 1915
should have been taken as the basis for estimating the value
of the good wilL
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46 Matter of Lincoln.
Surrogate's Court, New York County, December, 1920. [Vol. 114.
The five per cent of profits which, under the partnership
agreement decedent was entitled to receive, should have been
applied to the good will value of the business in ascertaining
his interest therein.
No proof having been offered of the nature, extent or value
of the services, if any, rendered by decedent and his copart-
ners to the firm, a deduction from the net profits, for salaries
to the copartners, was unauthorized and properly disallowed
by the transfer tax appraiser.
Appeal from an order fixing the transfer tax.
NicoU, Anable, Fuller & Sullivan (Outerbridge Hor-
sey, of counsel)., for executor.
Lafayette B. Gleason (Schuyler C. Carlton, of coun-
fipel), for State Comptroller.
CoHALAN, S. This appeal is taken by the executors
of decedent's estate from the order fixing the transfer
tax on the ground that his interest in the copartnership
of Catlin & Co. has been appraised in the report in
excess of its true value.
The sum found by the appraiser as the amount due
decedent from the firm was $841,844.96, to which has
been added interest from July 1, 1917, to September
2, 1917, the date of decedent's death.
The copartnership agreement provided that the
money standing in the name of a copartner would be
credited on the first days of January and July in each
year. The appraiser properly disallowed the claim
of the executors that the item of interest be discounted
to January 1, 1918. The share of the decedent in the
capital, with interest to the date of his death, repre-
sents the value of the transfer as of that date.
The copartnership agreement contained a provision
that the capital of the member of the firm who died
during the continuance of the copartnership should
Digitized by
Google
Matter of Lincoln. 47
Misc.] Surrogate's Court, New York County, December, 1920.
remain in tlie business for a period of not exceeding
nine months subsequent to his death and that his per-
sonal representatives should receive the same interest
on capital and the same share of the profits for that
period as was provided by the copartnership agree-
ment. The profits for the nine months succeeding
decedent's death were shown to be the sum of $36,-
462.84. As these were not due and payable under the
agreement until the expiration of the period therein
fixed, and carried no interest, I think that this sum
should be discounted so as to ascertain its value as of
the date of decedent's death.
In estimating the value of the good will the appraiser
has included in his average the profits for the years
1916 and 1917. The firm was in the business of selling
goods on commission. The unusual earnings for the
two years mentioned were due solely to the extraordi-
nary increase in the inventory value of the merchan-
dise on the sale of which the commissions were
received. Under the peculiar circumstances of this
case as disclosed by the record I am of the opinion that
the profits for these two years should be excluded in
the calculation of the good will value. The year 1914,
which was also considered by the appraiser, should be
eliminated because of the conditions which resulted
in profits far below the normal earnings of the copart-
nership. The average for the years 1912, 1913 and
1915 should be taken as the basis for the calculation
of the good will.
Pursuant to the articles of copartnership the dece-
dent was to receive five per cent of the profits. The
appraiser should have applied this percentage to the
good will value of the business in ascertaining dece-
dent's interest therein. Matter of HeXlman, 172 N. Y.
Supp. 671; aflfd., 187 App, Div. 934; affd., 226 N. Y.
702.
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48 Slattery & Co. V. National City Bank.
Municipal Court of New York, December, 1920. [Vol. 114.
No proof was oflFered of the nature, extent or value
of the services, if any, rendered by decedent and his
copartners to the firm. Under these circumstances a
deduction from the net profits for salaries to the
copartners would be unauthorized, and the appraiser
properly disallowed the claim.
The report will be returned to the appraiser for
correction as indicated in this decision.
Report returned to appraiser for correction.
Slattery & Company, Plaintiff, v. The Nationaij
City Bank of New York, Defendant.
(Municipal Court of the City of New York, Borongh of Manhattan,
Ninth District, December, 1920.)
Conversion — check — delivery to wrong person by mistake —
bona fide purchaser — when drawer of check as assignee of
proper payee acquires no title— negligence of drawer proxi-
mate cause of loss.
To maintain an action for conversion the plaintiff must have
some title to or interest in the property alleged to have been
converted. (P. 61.)
In an action for the alleged conversion of a check and the
proceeds thereof drawn by plaintiff it appeared by the agreed
statement of facts that by mistake the check was forwarded,
not to the payee, but to anoth^ customer of plaintiff having
the same name, upon whose indorsement of the check the
amount thereof was paid to him by a bank in the belief that
he was the proper payee. Held, that the alleged proper payee
of the check, who received nothing, acquired no title to or
interest therein, and that plaintiff as his assignee had no
right of action for the conversion of the check against the
defendant bank, which after collecting the check from the bank
on which it was drawn transmitted the proceeds to the bank
which had cashed the check. (Pp. 61, 62.)
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Slattbby & Co. V. National City Bank. 49
Misc.] Mnnicipal Court of New York, December, 1920.
The negligenee of the plaintiff or its agent delivering the
eheek to the wrong person, thus enabling him to pass an
indefeasible title to a bona fide purchaser, was the proximate
eaose of the loss which plaintiff must bear rather than defend-
ant which parted with its money in absolute good faith.
(Pp. 63, 64.)
Submission of controversy on agreed statement of
faets.
Hardin & Hess (Harold B/Elgar and Ernest Angel,
of counsel), for plaintiff.
Shearman & Sterling (Chauncey B. Garver and,
Chester B. McLaughlin^ Jr., of counsel), for
defendant.
Genung, J. This is an action for the sum of $167.46,
with interest from October 27, 1919, brought by the
plaintiff for the alleged conversion by defendant of a
check and the proceeds thereof, drawn by the plain-
tiff on the Seaboard National Bank of New York,
numbered 88G2, dated October 26, 1919, and payable
to the order of Harold E. Richards. Plaintiff is a
brokerage firm and dealer in investment securities.
Some months prior to the issuance of the check, the
plaintiff had on its books two accounts, one in the
name of H. E. Richards, Rockdale, Tex., and the
other in the name of Harold E. Richards, Bartlesville,
Okla. In April, 1919, the plaintiff closed its account
with the said H. E. Richards, Rockdale, Tex., and
sent him a fifty dollar liberty bond and a check for the
sum of fifty-four dollars and seventy-four cents,
together with a statement showing that his account
was closed. In October, 1919, the account with the
said Harold E. Richards, Bartlesville, Okla., was open,
and at that time there was sold for the account of the
said Harold E. Richards, Bartlesville, Okla., a certain
quantity of securities, and a check for $167.64, dated
4
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50 Slattery & Co. V. National. City Ba^jk.
Municipal Court of New York, December, 1920. [Vol. 114.
October 26, 1919, numbered 8862, payable to Harold
E. Richards, was drawn on the Seaboard National
Bank of New York. By mistake the check was for-
warded to H. E. Richards, Rockdale, Tex., instead of
being forwarded to Harold E. Richards, Bartlesville,
Okla. Inclosed with the check was a statement showing
the transaction out of which the account arose. Upon
receipt of the check, Harold E. Richards, Rockdale,
Tex., indorsed the check, and secured the endorsement
of J. R. Breen, who was known to the oflBcers of the
Taylor National Bank, Taylor, Tex., and had the check
cashed by the Taylor National Bank, who delivered the
proceeds thereof to Harold E. Richards, believing him
to be the proper payee of the check. The check then
was sent to the National City Bank, the defendant
herein, by its correspondent, the Taylor National
Bank, and the National City Bank collected the pro-
ceeds thereof from the Seaboard National Bank and
transmitted the same to the Taylor National Bank.
The National City Bank undoubtedly believed, as did
the Taylor National Bank, that the indorsement of
Harold E. Richards was the indorsement of the proper
payee of the check. Harold E. Richards, Bartlesville,
Okla., never received the proceeds of the check, and
prior to the commencement of the action, assigned to
the plaintiff herein any claim which he might have by
reason of the issuance of the check or of any of the
facts above stated.
The plaintiff claims that the indorsement, made by
Harold E. Richards, Rockdale, Tex., with the knowl-
edge that he had no right to the check or the proceeds
thereof, was a forged indorsement, although this
knowledge was not communicated to the Taylor
National Bank, and claims the forged indorsement
gave to the defendant no right to present this check
to the Seaboard National Bank or to retain or dispose
of the proceeds.
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Slattery & Co, V. National. City Bank. 51
Misc.] Municipal Court of New York, December, 1920.
If this indorsement was a forged indorsement, it is
well settled that no title passed by the forged indorse-
ment (Neg. Inst. Law, § 42), and, further, the bank or
person making the payment on the forged instrument
did so at its peril {Seaboard National Bank v. Bank
of America, 193 N. Y, 26), and the defendant obtained
no title to the check and the proceeds thereof belonged
to the payee whose indorsement had been forged
{Stein V. Empire Trust Co., 148 App. Div. 850), and
the defendant, having collected the amount of tiie
check with the forged indorsement of the payee
thereon, is not entitled to retain the proceeds as
against the payee. Standard Steam Specialty Co. v.
Corn Exchange Bank, 84 Misc. Rep. 445. The plain-
tiff claims the diversion by the defendant, under these
circumstances, of the proceeds of the check from the
proper payee and payment thereof to the Taylor
National Bank, constituted a conversion and gave the
plaintiff a right of action for damages to the face
amount of the check. Graves v. America/n Exchange
Bank, 17 N. Y. 205; Mead v. Young, 4 T. E. 28; Sea-
board National Bank v. Bank of America, 198 N. Y.
26.
The defendant claims that the plaintiff, as the
assignee of Harold E. Richards, Bartlesville, Okla.,
has no interest in the check. It is well settled that, to
support an action for conversion, the plaintiff must
have some title or interest in the property alleged to
have been converted. Title to a check passes by in-
dorsement and delivery, or, if the check is payable to
bearer, by delivery alone. It appears that the plain-
tiff's assignor, the alleged proper payee, received
nothing, since instead of being delivered to him, the
check was delivered to a third i>erson, and conse-
quently Harold E. Richards, Bartlesville, Okla.,
acquired no title or interest in the check. If this be
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52 Slattbby & Co. V. National City Bank.
Municipal Court of New York, December, 1920. [Vol. 114.
SO, the plaintiff's assignor had no right of action
against the defendant for conversion.
The defendant further claims there was no forgery
in the indorsement of the check by Harold E. Richards,
Rockdale, Tex., to whom the check was sent by the
plaintiff. Undoubtedly he knew, when he received the
check, that a mistake had been made and that the plain-
tiff might make claim thereafter for the proceeds
thereof, but that does not alter the fact that the plain-
tiff actually made and delivered the check to him as
payee and that he could give a good title to it by
indorsement to a bona fide purchaser for value and
without notice. The only ground for claiming that the
plaintiff's assignor was the payee of the check was that
it was drawn by the plaintiff to be forwarded to him
in payment of certain securities which had been sold
for his account by the plaintiff. The plaintiff's
original purpose in drawing the check, however, is of
no importance when it actually delivered the check to
a third person, who was also named in the check as
payee. The intent to make the check payable to Harold
E. Richards, Bartlesville, Okla., was superseded and
blotted out by the actual delivery of the check to Harold
E. Richards, Rockdale, Tex. Weisberger Co. v. Bar-
berton Savings Bank, 84 Ohio St. 21 ; 34 L. R. A. (N. S.)
1101 ; Heavey v. Commercial National Bank, 27 Utah,
222. In Weisberger Co. v. Barberton Savings Bank,
the plaintiff drew a check to the order of Max Roth, who
did business as the plaintiff knew at 48 Walker street,
New York, but by mistake mailed the check to Max
Roth, 48 Walker street, Cleveland, 0. When the letter
carrier found no one by that name on Walker street,
he found one Max Roth on Henry street, and gave him
the letter. He indorsed the check, transferred it for
cash to another, who collected from the drawee bank.
In an action by the plaintiff against the drawee bank.
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Slattery & Co. V. National City Bank. 53
Misc.] Municipal Court of New Ycrk» December, 1920.
the court held the plaintiff could not recover. In
Eeavey v. Commercial National Bank, a bank by postal
card, mistakenly, informed the wrong person, but of
the same name, that money had been deposited to his
credit in the bank. This person wrote to the bank for
a draft which the bank sent to him and which he
indorsed to a holder in due course, and the court held
that he had a good title.
It is well settled in this state that, when a check is
delivered to one person, even though the person
delivering it believes him to be some one entirely dif-
ferent, the delivery is sufficient to enable the person
receiving it to pass an indefeasible title to a hona fide
purchaser. First National Bank v. American Exch.
Nat. Bank, 49 App. Div. 349; affd., 170 N. Y. 88;
Sherman v. Corn Exchange Bank, 91 App, Div. 84;
Hartford v. Greenwich Bank, 157 id. 448. Under these
decisions, when the plaintiff delivered the check to
Harold E. Richards, Rockdale, Tex., the fact that it
believed that he was the person to whom it was
indebted was immaterial. Since there was a delivery
to Harold E. Richards, Rockdale, Tex., even though
the plaintiff in making the delivery labored under a
misapprehension, it is clear that the said Richards
could pass a good title to a bona fide purchaser. Salen
V. Bank of the State of New York, 110 App. Div. 636;
Cluett V. Couture, 140 id. 830.
In addition to the foregoing, the defendant claims
that the plaintiff is estopped, even if it were held that
the indorsement in question was a forged indorsement^
from asserting that fact. The plaintiff actually
delivered the check to a man having the same name as
the plaintiff's assignor, the alleged proper payee. The
result was clearly to be foreseen and the negligence of
the plaintiff, or its agent, is a proximate cause of the
Joss. It is well settled that estoppel is a valid defense
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54 Block v. Bacon Coal. Co.
Supreme Court, December, 1920. [Vol. 114.
to an action resting on a forgery. Heffner v. Dawson,
63 111. 403; Kuriger v. Joest, 22 Ind. App. 633;
Corwith First State Bank v. Williams, 143 Iowa, 177 ;
Ca^co Bank v. Keene, 53 Maine, 103 ; Gluckman v. Dar-
ling, 85 N. J. L. 457 ; Blodgett v. Webster, 24 N. H. 91 ;
Cohen v. Teller, 93 Penn. St. 123 ; Murphy v. Estate of
Ski/nner, 160 Wis. 554; National Bank of Commerce
V. First National Bank, 152 Pac. Repr. 596. As
between the plaintiff and the defendant herein, it is
clear that the plaintiff, through whose fault the loss
occurred, rather than the defendant, who parted with
money in absolute good faith, should bear the loss.
The defendant is entitled to judgment.
Judgment for defendant.
Abraham Block, Plaintiff, v. Bacon Coal Company,.
Respondent.
(Supreme Court, New York Trial Term, December, 1920.)
Venue — ckanged to proper connty — Code Civ. Pro. § 984.
Where after a jury had been impaneled for the trial of an
action brought in the county of New York the court, upon
learning that the cause of action arose and both parties resided
in the county of Kings, refuses to try the case in view of sec-
tion 984 of tile Code of Civil Procedure, defendant's motion to
transfer the cause to Kings county will be granted.
It seems that the court had power of its own motion to sum-
marily order the trial of the case in the county of Kings.
Motion to change place of trial.
David M. Finck (Jacquin Frank, of counsel), for
plaintiff.
William Dike Eeed, for defendant.
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Block v. Bacon Coal Co. 55
Misc.]. Supreme Court, December, 1920.
Ford, J. This is one of that class of cases which by
section 984 of the Code ** must be tried in the county,
in which one of the parties resided, at the commence-
ment thereof/'
A jury had already been impaneled before the court
learned that the cause of action arose and both par-
ties resided in the county of Kings. Thereupon the
trial justice declared that he would not try the case.
Up to this point both counsel had proceeded in evi-
dent willingness to have the trial in New York county
and it was only after the court's express refusal to
try the case that defendant's counsel moved that it
be sent to Kings, the proper county, for trial.
This exact narrative is given because I desire that
there be no misapprehension as to the precise grounds
upon which the order transferring the case is based.
It was essentially upon the motion of the court itself
that the order was made although in form upon the
motion of defendant's counsel.
This puts the case on all fours with Phillips v. TieU
jen, 108 App. Div. 9, which was decided by the Appel-
late Division of the second department in 1905. That
case held squarely that the trial court might not of
its own motion send the case to the proper county.
That rule has never been expressly adopted in this
department so far as I can discover, although the
Phillips Case, supra, was mentioned in Cronin v. Ma/n-
hattan Transit Co., 124 App. Div. 543, a first depart-
ment decision, wherein the court pointed out that the
rule laid down by the second department did not apply
to the case then under consideration.
In Goldf elder v. Greenherg, 189 App. Div. 184, the
second department so far as can be gathered from the
brief opinion seems to have departed from the rule
laid down in the Phillips Case, supra.
The Goldf elder Case, supra, was brought in West-
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56 Block v. Bacon Coal Co.
Supreme Court, December, 1920. [Vol. 114.
Chester county in which neither party resided. De-
fendant served the demand required by section 986
of the Code but failed to comply with the further pro-
vision that a notice of motion be served within the
time specified for a change of the place of trial to the
proper county. Such a motion was made afterwards
and was opposed upon the sole groimd that it had not
been made within the statutory time. The motion was
denied and the Appellate Division in reversing held:
** Section 986 of the Code is directory merely, and
the court had power under section 987 to change the
place of trial although no demand had been made.
{Cronin v. Manhattan Transit Co., 124 App. Div. 543,
544.) Westchester county is not the proper county
for the trial of this action. (Code Civ. Proc. § 984.)
It was a mistake to bring it there, and the court is not
without power to correct it. The motion ought to have
been granted, and it follows that the order must be
reversed. '^
An examination of the cases which discuss the ques-
tion of a change in the place of trial reveals that they
almost uniformly consider it from the point of view
of the statutory right of the litigant to have the place
changed.
The rights of the public and of the taxpayer have
not received due consideration as it seems to me.
There has grown up among lawyers the practice of
bringing actions for trial in New York county
although the cause of action arose and both parties
resided in an adjacent county or counties.
The instant case grew out of an accident which
occurred in Kings county. Both parties and all the
witnesses resided there. Merely because his office is
in New York county or for some other trivial reason,
the lawyer brings the case for trial to our crowded
courts.
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NoRTHWAY Holding Co., Inc., v. Parker. 57
Misc.] Supreme Court, December, 1920.
Usually the opposing lawyer is quite content
because his office is also here. Practically the inter-
ests of the litigants and the convenience of witnesses
are not considered. As a matter of fact it is of small
moment to the parties where the case is tried for the
same brand of justice is handed down in either case.
But why should either lawyer or litigant be permit-
ted to lift the burden of the trial from one county and
impose it upon another T
The statute says the case mtist he tried in the
county where the litigants or one of them resided. I
believe the court has the power of its own motion to
summarily order such a case to the county where it
properly belongs and to imjwse upon that county the
burden of disposing of its own lawsuits. The order
transferring the case to Kings county has been signed.
Motion granted.
NoRTHWAY Holding Company, Inc., PlaintiflF, v, Alice
A. Parker, Defendant.
(Suprone Court, Tioga Special Term, December, 1920.)
Landlord and tenant — action by corporation landlord for rent of
an apartment in the city of New York — motion to change
place of trial from county of plaintiff's residence to New
York county granted as matter of right — motion to change
▼enne for convenience of witnesses not waived by former
motion.
Justice is not promoted by permitting a landlord, incorpo-
rated to own and rent a building in the city of New York, to
bring an action for a small amount of rent in a county wherein
it claims a residence remote from the county where the leasing
was made, and in which all persons interested and their neces-
sary witnesses have their actual residence and may easily resort
to the courts.
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58 NoBTHWAY Holding Co., Inc., v, Parker.
Supreme Court, December, 1920. [Vol. 114.
Where in an action brought by such a landlord to recover
rent for an apartment in the city of New York for the months
of October and November, 1920, under a written lease entered
into on September 20, 1920, the answer pleads the defenses
permitted by chapter 944 of the Laws of 1920 which went
into effect September 27, 1920, and it is plainly apparent that
the venue, as laid, was to vex the defendant and make difiAcult
^er opportunity for defense, her motion to change the place of
trial to the county of New York will be granted as a matter
of right.
The defendant in demanding that the venue be changed as a
matter of right did not thereby waive her right to make a
motion to change the place of trial on the ground that the
conveniences of witnesses and the ends of justice would be
promoted.
Motion by defendant to change place of trial.
Thomas P. McCormick, for motion.
Bond & Babson, opposed.
Davis, J. The defendant is moving to change the
place of trial from Tio2:a county to New York county.
The plaintiflF has brought this action to recover rent
for the months of October and November, 1920, due,
as it claims, under a written lease entered into between
the parties September twentieth preceding, for the
rent of an apartment. The defendant, availing her-
self of the defenses permitted by chapter 944 of the
Laws of 1920, which became a law September twenty-
seventh, alleges that the rent has been increased from
$166.67 per month the preceding year, to $250 per
month, and that the rent accruing under the agree-
ment is unjust and unreasonable, and that the agree-
ment is oppressive.
The plaintiflF, a corporation, has stated in its certifi-
cate of incorporation that its principal office and place
of business is in the village of Owego, Tioga county,
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NoBTHWAY Holding Co., Inc., v. Pabeeb. 59
Misc.] Supreme Court, December, 19*20.
and claims its residence there. The apartment in
question is situated in the city of New York; the
defendant resides in the city of New York, and the
main office from which the officers of the plaintiff
transact all their business is in that city. The plain-
tiff has a nominal office in the village of Owego in
an office occupied by a firm of attorneys, one of whom
has been formally appointed agent in charge of the
office of defendant, upon whom process may be served.
It does not appear that this agent has any particular
duties to perform. No officer, director or stockholder
resides in the village of Owego or county of Tioga,
nor does it own any property or transact any business
there. It says that it pays taxes in Tioga county. It
would be interesting to know how much tax it pays,
in the absence of any property interest in that county,
and by whom it is expected to be sued, so process
could there be served on its agent in its office, but the
plaintiff's affidavits are discreetly silent on these
subjects.
This residence is, of course, merely nominal and
fictitious. The plaintiff, in designating the location of
its principal office in its certificate of incorporation,
evidently relied on decisions of the courts to the effect
that the residence of corporations, for the purpose of
taxation and in the bringing of actions by or against
a corporation in good faith, is deemed to be in the
county named in the certificate of incorporation as
containing its principal office. See Oswego Starch
Factory Co. v. Dolloway, 21 N. Y. 449 ; People ex rel.
Knick. Press v. Barker, 87 Hun, 341; Rossie Iron
Works V. Westhrook, 59 id. 345; General Baking Co.
V. Daniell, 181 App. Div. 501.
The pui'pose of the plaintiff, in view of the facts
stated, is obvious, to wit: it has established a nominal
residence in a county far distant from New York city
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60 NoETHWAY Holding Co., Inc., v. Parker.
Supreme Court, December, 1920. [Vol. 114.
where it owns its property and transacts its business
of renting apartments to tenants, so that in bringing
actions for small amounts due for rent, it may compel
tenants to be at great inconvenience and expense in
making their defenses to any claim, however exorbi-
tant, made by the landlord.
In the decisions to which I have referred, the courts
were not dealing with a situation such as is presented
here. They were dealing with corporations which had,
in apparent good faith and for some legitimate pur-
pose, established their oflSce and principal place of
business in one locality and had thereafter engaged
in some line of manufacturing or mercantile business
having large executive oflSces elsewhere. There is a
vast difference between a bona fide residence and one
established solely for bringing suits in the county of
such residence on causes of action which arose, where
the defendants reside, in a distant county. I should
not, therefore, feel bound by such decisions which may
readily be distinguished in principle from the case
under consideration, if it were thereby necessary to
defeat the plain and apparent purpose of the plaintiff
to harass and annoy its tenants and to prevent the
defendant and others similarly situated from having
a fair day in court ; or if this was the only legal ques-
tion involved in this controversy and its determina-
tion was necessary for the maintenance of the rights
of the defendant. Such practices of using apparently
legal means for an illegitimate and unworthy pur-
pose are not to be encouraged, but rather to be dis-
couraged by the courts.
But there is also presented another question on
the motion and that is whether the place of trial
should be changed for the convenience of witnesses
and to promote the ends of justice.
The defendant by statute is given the benefit of
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NoRTHWAY Holding Co., Inc., v. Pabkbe. 61
Misc.] Supreme Court, December, 1920.
certain defenses. She says she has necessary and
material witnesses residing in the city of New York
to maintain them. I can neither on this practice
motion anticipate the result of a motion for judg-
ment on the pleadings, which plaintiff's attorney says
he has made, nor declare unconstitutional the statute
on which defendant relies for her defense.
The ends of justice are not promoted by permitting
the plaintiff, incorx>orated to own and rent a building
in New York city, to bring an action for a small
amount of rent, in a county wherein it claims resi-
dence remote from the coimty where the contract was
made and in which all persons interested and their
necessary witnesses have their actual residence, and
may easily resort to the court?. That the reason for
laying the venue in Tioga county was to vex the de-
fendant and make diflScult her opportunity for
defense is plain and apparent, and the court cannot
give to the scheme any countenance or approval. The
action should be tried where the cause of action arose.
Spanedda v. Murphy, 144 App. Div. 58; Navratil w.
Bohm, 26 id. 460; d'Beirne v. Miller, 35 Misc. Rep.
337; General Rules of Practice, 48.
The defendant in demanding that the venue be
changed as a matter of right, did not thereby waive
any right to apply on other grounds. No demand was
necessary preliminary to a motion to change the place
of trial on the ground that the convenience of wit-
nesses and the ends of justice will be promoted.
Larkin v. Watson Wagon Co., 68 App. Div. 86; 2
Rumsey Pr. (2d ed.) 143. For the reasons stated the
motion will be granted, with ten dollars costs.
Motion granted, with ten dollars costs.
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62 People v. Giordano.
Court of Gen. Sessions, N. Y. County, December, 1920. [Vol. 114.
People op the State of New Yobk, Plaintiff, v.
Angelo Giordano, Defendant.
(Court of General Sessions of the Peace, in and for the County
of New York, December, 1920.)
Code Orim. Pro. §§ 285, 684 — motion after jndgment of convic-
tion for inspection of grand jnry minutes denied — waiver of
rights.
Sections 286 and 684 of the Code of Criminal Procedure
refer only to imperfections of form and departures from the
form or mode of procedure prescribed by said Code, or to
errors or mistakes in form or in mode of procedure, and are
not broad enough to warrant disregarding the violation of a
constitutional right.
After his conviction for murder in the first degree, the
defendant's motion for an inspection of the minutes of the
grand jury for the sole purpose of making a motion to dismiss
the indictment, on the ground that there was no evidence before
the grand jury to connect him with the crime charged, except
that of accomplices, will be denied on the ground that not
having been made prior to the judgment of conviction the
defendant had waived his right to make the motion.
Motion by the defendant, after conviction of mur-
der in the first degree and appeal therefrom to the
Court of Appeals, to inspect the minutes of the grand
jury for the purpose of moving to dismiss the indict-
ment.
Martin W. Littleton (Owen N. Brown, of counsel),
for motion.
Edward Swann, district attorney (Robert C. Taylor,
of counsel; George N. Brothers, with him on the
brief), in opposition.
NoTT, J. On October 5, 1916, one Verrazano
was murdered in the county of New York. On
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People v. Giordano. 63
Misc.] Court of Gen. Sessions, N. Y. County, December, 1920.
May 1, 1918, the defendant was convicted of
murder in the first degree, in that he pro-
cured others to murder Verrazano. On May 16,
1918, he appealed to the Court of Appeals, and end-
ing that appeal has made several motions for a new
trial on the ground of newly discovered evidence,
which motions have been denied. 106 Misc. Rep. 235.
He now for the first time moves to inspect the min-
utes of the grand jury which indicted him, for the
purpose, should such inspection be granted, of sub-
sequently moving to dismiss the indictment on the
ground that there was no evidence before the grand
jury, except that of accomplices, to connect him with
the crime and that, therefore, he was improperly
indicted and his constitutional rights invaded. Peo-
ple V. Gle7i, 173 N. Y. 395.
Upon the trial testimony was given by witnesses,
other than those called before the grand jury, which
the jury found corroborated the accomplices, and
unless and until the judgment of conviction is reversed
upon the ground that there wbjs no sufficient corrobo-
ration, it must be assumed, for the purposes of this
motion, that the defendant was properly convicted
and that the corroboration was sufficient. The ques-
tion, therefore, arises whether an indictment should
be dismissed because founded upon insufficient evi-
dence in a case where the defendant has been subse-
quently tried and convicted upon sufficient evidence
and has not attacked the sufficiency of the indictment
until after final judgment. Had such motion been
made prior to trial the granting thereof would have
been no bar to the finding of a new indictment upon
sufficient evidence. But should the motion be granted
after the trial and conviction of the defendant, the
defendant might well claim a former jeopardy and
that he could not be subsequently prosecuted for the
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64 People v. Giordano.
Court of Gen. Sessions, N. Y. County, December, 1920. [Vol. 114.
same offense and if that claim were well founded it
would follow that he, although convicted upon suffi-
cient evidence, would go free because ho had delayed
his attack upon the indictment until it was too late to
remedy its weakness. In my opinion this result is
contrary to the ends of justice and places a premium
upon delay and laches and should not receive the sanc-
tion of the courts unless required by other well-set-
tled principles of law.
The district attorney contends that under sections
285 and 684 of the Code of Criminal Procedure this
motion must be denied for the reason that the defend-
ant has not been prejudiced because he was ultimately
convicted on proper evidence. I am of the opinion,
however, that those sections refer only to imperfec-
tions of form and departures from the form or mode
of procedure prescribed by the Code, or to errors or
mistakes in form or in mode of procedure, and are not
broad enough to warrant the disregarding of the vio-
lation of a constitutional right.
I am, however, of the opinion that the defendant
has waived his right to make this motion by not doing
so prior to the imposition of final judgment. If it be
true that there was no testimony before the grand
jury, other than that of accomplices, connecting
defendant with the crime, that fact was as much
within the defendant's knowledge or his means of
knowledge at the time of the imposition of final judg-
ment as it is today and there is no reason shown why
the motion was not made before judgment or the
indictment attacked at or before the time when the
defendant was called upon after his conviction to
state why judgment should not be imposed upon him.
The general rule is stated as follows, by the Court of
Appeals, in People v. Willett, 213 N. Y. 368, 375:
** Unless a motion founded upon the indictment and
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Waters v. Beau Site Co. 65
Misc.] Court of Gen. Sessions, N. Y. County, December, 1920.
the insufficiency thereof is made before or at the time
when the defendant is called for judgment, the objec-
tions thereto are waived.*' Citing People v. D'Argen-
cour, 95 N. Y. 624; People v. Wiechers, 179 id. 459.
The defendant, however, claims that his constitu-
tional right has been invaded and that the doctrine of
waiver does not apply in such case. While it has been
held that a defendant can not waive a constitutional
objection to the power or jurisdiction of the court to
try him (Sec People v, Cancemi, 18 N. Y. 128), other
constitutional rights of the defendant may be waived
as well as statutory rights. See Dodge v. Corn elms,
1G8 N. Y. 242, and cases cited therein. See, also,
People V. Rathhufiy 21 Wend. 509; Pierson v. People,
79 N. Y. 424; People v. Cosmo, 205 id. 91; People v.
Toledo, 150 App. Div. 403.
While this motion is not for the dismissal of the
indictment but for the inspection of the minutes of the
grand jury, yet, as it is made upon the sole ground
that it is for the. purpose of subsequently moving to
dismiss, it would be futile to grant the motion if the
subsequent motion to dismiss must inevitably be
denied.
For these reasons this motion is denied.
Motion denied.
Hilda J. Waters, Plaintiff, v. Beau Site Company,
Defendant.
(City Court of the City of New York, Trial Term, December, 1920.)
BailmentB — action to recover value of contents of a trunk —
evidence — when complaint dismissed.
Plaintiff who, with her husband, was about to leave defend-
ant's hotel where they were guests, with the intention of return-
ing in a few days, upon beine: informed by defendant's man-
5
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66 Waters v. Beau Site Co.
City Court of New York, December, 1920. [VoL 114.
ager that their trunks would be taken care of during her
absence, a trunk in which among other articles was placed a
diamond pendant valued at more than $1,000 was delivered to
defendant for storage. When on plaintiff's return the trunk
was sent to her room and opened the pendant was missing.
In an action to recover its value it was conceded that the
relation between the parties was that of bailor and bailee, but
there was no evidence that defendant had actual notice that
the pendant was in the trunk. Held, that the dismissal of the
complaint upon the ground that defendant, by becoming the
bailee of the trunk and its contents, was not required to and
did not assume that the trunk contained articles other than
those ordinarily contained in trunks, and that in consequence
there was no bailment as to the pendant, was proper.
Action to recover the value of the contents of a
trunk.
Everett, Clarke & Benedict, for plaintiff.
Nadal, Jones & Mowton, for defendant.
Callahan, J. Plaintiff and her hrasband had been
guests at the Hotel Biltmore, New York city, con-
ducted by defendant. They were about to leave the
hotel with the intention of returning in a few days.
Upon inquiry she was informed by the assistant man-
ager of defendant that her trunks would be taken care
of during her absence. Her testimony is that he stated
that the hotel maintained a safe place for trunks,
describing a certain storage room with iron doors
which were always kept locked, and that many wealthy
guests of the hotel left their trunks with valuable con-
tents in the care and custody of the hotel while they
were away. Plaintiff and her husband further testi-
fied that they thereupon packed two trunks, in one o?
which was placed a diamond pendant valued at over
$1,000. This trunk was thereafter delivered to defend-
ant for storage during plaintiff's absence. Upon her
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Watebs v. Beau Site Co. 67
Miflc] City Court of New York, December, 1920.
return the trunks were sent to her room and upon
opening them she discovered that the contents had
been tampered with and that the pendant was missing.
This action is brought to recover its value. It was
conceded upon the trial that the relation between the
I)artie6 as to the stored property was that of bailor
and bailee and not that of innkeeper and guest. Upon
the foregoing facts the court dismissed the complaint
upon the ground that the defendant, by becoming a
bailee of plaintiff's trunks and their contents, was not
required to and did not assume that the same con-
tained articles other than those ordinarily contained
in trunks and that, consequently, there was no bail-
ment as to the pendant. There was no testimony in
the case to show that defendant had actual notice
of the fact that this valuable piece of jewelry was
in plaintiff's trunk. Nor is it so usual or custom-
arj^ to place articles of this character in trunks as
to warrant or require any assumption on defendant's
part that the trunk contained the jewel in question.
In such case there is no contract of bailment, for the
bailee cannot by artifice be compelled to assume a
liability greater than he intended. Edwards Bailm.
(3d ed.) § 49. It does not follow that there must be an
intention to impose upon the bailee. It is sufficient if
such is the practical effect of the bailor's conduct. By
the use of the word artifice it is not intended to convey
that plaintiff had any motive or design inconsistent
with absolute honor and fair dealing. A better char-
acterization would probably be a concealment without
design. It is true that plaintiff testified that in her
conversation with defendant's manager she referred
to her trunks as baggage or luggage, but the mere use
of this expression is insufficient to give notice to the
defendant that the trunks contained articles of a char-
acter different from those ordinarily placed in trunks
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68 Waters v. Beau Site Co.
City Court of New York, December, 1920. [Vol. 114.
left for storage. Luggage and baggage are essentially
the bags, trunks, etc., that a passenger takes with him
for his x)ersonal use or convenience with reference to
his necessities or to the ultimate purpose of his jour-
ney, and in this connection it has been held that, within
limits, the same include such jewelry as may be
adapted to the tastes, habits and social standing and
be necessary for the convenience, use and enjoyment
of the traveler either while in transit or temporarily
staying at a particular place. The trunks here were
to be stored and not to be used as luggage or baggage,
and for this reason it is apparent that the above rule
respecting jewelry is not applicable. Plaintiff insists
that jewelry of the kind ordinarily worn upon the per-
son is part of a woman 's baggage and that defendant
by undertaking to care for plaintiff's baggage became
a bailee of the diamond pendant contained in one of
the trunks, and cites in support of this contention the
case of Sherman v. Pullman Co., 79 Misc. Rep. 52;
Borden v. N. ¥. C. R. R. Co., 98 id. 574, and Has-
brouck v. New York C. <& H. R. R. R. Co.,
202 N. Y. 363. Were it admitted, or did the
facts authorize a finding that the trunks of plain-
tiff were baggage or luggage, the contention would
have much force. All the cases cited, however,
were against conunon carriers, where the lost jew-
elry was carried by the plaintiffs as part of their bag-
gage as passengers and they were entitled to have
same safely transported by the defendants under the
contract of transportation. The sole question in each
of said cases was whether the personal jewelry con-
stituted articles of baggage. In the instant case, as
is above set forth, the trunks were not baggage or lug-
gage. Plaintiff also claims that even though defend-
ant may not have been informed of the presence of the
pendant in the trunk, it would nevertheless be liable
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Waters ?*. Beau Site Co. 69
Misc.] City Court of New York, December, 1920.
in an action for breach of the contract of bailment if
the pendant were stolen by one of the employees of
defendant, and that testimony in the case made it
reasonably plain, or at least permitted the inference,
that the pendant was stolen by one of defendant's
employees. For this reason it is asserted the case
should have been submitted to the jur>'. In support
of this contention the case of Heuman v. Powers Co.,
226 X. Y. 206, is cited. The decision in the Heuman
ease is based primarily on the fact that the defendant,
a cpnmion carrier, was obligated to safely carry plain-
tiff's goods, and that, notwithstanding the fact that
plaintiff signed a memorandum stipulating to a limi-
tation of defendant's liability to fifty dollars, such
memorandum referred only to defendant's responsi-
bility as a carrier and did not include the misfeasance
or non-feasance of the carrier or its employees. In
that case it was conceded that the jewelry was stolen
by defendant's employees. It was further stated,
though not necessary to a decision, that the failure of
plaintiff ta disclose to defendant the fact that there
was a safe in the cabinet of plaintiff containing valua-
ble articles did not relieve defendant from liability
for its own acts or those of its servants which
amounted to a misfeasance. It clearly appears, how-
ever, by reference to the opinion of the Appellate
Division in the Heuman case that '* one of the arti-
cles to be moved and which was apparently in full
sight of defendant's representative at the time the
contract was made or the order given was ^ small
safe." In the instant case, as above stated, there was
absolutely nothing to indicate to defendant the pres-
ence of valuable jewelry in the trunks of plaintiff.
Somewhat analogous to the present ease is Rohin v.
Colaizzi, 101 Misc. Rep. 298, where plaintiff visited
defendant's restaurant with an escort and handed her
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70 Waters v. Beau Site Co.
City Court of New York, December, 1920. [Vol. 114.
pocketbook, which had in it eleven dollars in bills and
a diamond ring, to her escort, and her escort put the
pocketbook in his pocket and checked his overcoat in
the coatroom. When he later asked for his coat the
coat was returned to him, but the pocketbook was
gone. The court said: ** The question involved in
this case is, under the circumstances here disclosed,
did the defendant's intestate become the bailee of the
lost pocketbook and its contents! None of the cases
upon the subject relied upon by the plaintiff hold the
defendant in such an action liable as bailee, unless he
knew the lost article was in his possession or unless the
article which he did receive was of such a character
that the presence of the lost article or articles of a
similar nature might be presumed." Similar cases
are Barnes v. Stern Bros., 89 Misc. Rep. 385; Warmser
V. Browning, K. £ Co., 187 N. Y. 87. The reasoning in
Nathan v. Woolverton, 69 Misc. Rep. 425; affd. on
opinion below, 147 App. Div. 908, seems to be appli-
cable here. The plaintiff in that case checked his
trunk without noticing that it contained anything but
ordinary personal boggage, whereas, in fact, it con-
tained jewelry of considerable value. The court there
held, following Magnin v. Dinsmore, 62 N. Y. 35, 44,
that there was no contract between the passenger and
the carrier so far as the jewelry was concerned, the
defendant having no knowledge it was in its pos-
session.
Motion denied.
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Matter of Fitzsimmons. 71
Misc.] Surrogate's Court, Bronx County, December, 1920.
Matter of the Estate of Annie Fitzsimmons, Deceased.
(Surrogate's Court, Bronx County, December, 1920.)
Wills — constmction of — power of sale — equitable conversion —
suspension of power of alienation — Real Property Law, § 42.
A will empowered and directed the executor to sell and con-
vey the real estate of his testatrix at such time as he might
deem proper, ''but not less than two years after my death,"
with direction to distribute the proceeds among designated
l^atees. Held, that the power of sale was mandatory and
worked an equitable conversion of the real estate.
While under section 42 of the Real Property Law the limi-
tation of the power of sale could not be given effect, the inten-
tion of the testatrix that her property should be sold and dis-
tribution made as provided by her will, could be carried out
by eliminating the attempted unlawful suspension of the power
of alienation, the limitation should be treated as directory
merely and not as of the essence of the power of sale.
Proceedings on construction of a will under Code
of Civil Procedure, section 2615.
William A. Keating, for petitioner.
ScHULz, S. This proceeding was brought under the
provisions of section 2615 of the Code of Civil Pro-
cedure to obtain a determination as to the validity,
construction and effect of an attempted disposition of
property contained in paragraph numbered '* 3 '* of
the last will and testament of the decedent, which is
as follows :
** 3. I hereby direct and empower my executor here-
inafter named to sell and convey, at such time as he
may deem proper, but not less than two years after
my death, and at such price as he may deem adequate,
the premises where I now reside, and known as 644
East 229th Street, Borough of the Bronx, City of New
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72 Mattbb op Fitzsimmonb.
Surrogate's Court, Bronx County, December, 1920. [Vol.114.
York, and to distribute the net proceeds thereof after
deducting all expenses of sale, in equal parts, share
and share alike, between Mary Carney, Catherine Car-
ney, and Louise Carney, all residing in the said
Borough of the Bronx, and Mary Flannigan, Annie
McNamara, and Catherine Ford, of the City of New
Kochelle, Westchester County, New York, and Mary
Connel, residing on Sixtieth Street, in the Borough of
Manhattan, City of New York, the said named being
my cousins.'*
It is contended that the phrase ** but not less than
two years after my death " means that the sale shall
not be made before the expiration of two years after
the death of decedent, and such contention appears to
me to be correct.
The paragraph in question contains a mandatory
power of sale, coupled with a direction to distribute
the proceeds among the parties named and works an
equitable conversion. Salisbury v. Slade, 160 N. Y.
278; Greenland v. Waddell, 116 id. 234, 240; Lent v.
Howard, 89 id. 169. If the attempted limitation were
given effect, the executor could not exercise the power
of sale and hence could not alienate the said real
estate for a period of two years after the death of
the decedent; in other words, the absolute power of
alienation would be suspended for a period of two
years which is against the statute providing that such
suspension cannot be for a longer period than two
lives in being. Real Prop. Law (Cons. Laws, chap.
50), § 42; Matter of Hitchcock, 222 N. Y. 57. The
limitation of the power of sale, therefore, cannot be
given effect.
The fact that this is so, however, does not neces-
sarily destroy the provisions of the will of which it is
a part. The courts lean in favor of the preservation
of such valid parts of a will as can be separated frotu
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Matteb of Beekman. 73
Misc.] Surrogate's Court, Nassau County, December, 1920.
those that are invalid without defeating the general
intent of the testator. Matter of Hitchcock, supra.
Where the parts of a will are so intermingled that the
valid cannot be separated from the invalid, the will
must fail, but when it is possible to eliminate the
invalid provisions and leave the valid ones intact and
to preserve the general plan of the testator, such a
construction wdll be adopted as will prevent partial
or total intestacy. Matter of Thaw, 182 App. Div.
3G8, 372.
The intention of the testatrix was that the property
should be sold and that the cousins should share in
the proceeds of the sale of the real estate in question
and this can be carried out after eliminating the
attempted unlawful suspension referred to. The lim-
itation of the powder of sale should be treated as
directory merely and not as of the essence of the
power it&elf. Mott v. Ackerman, 92 N. Y. 539; Wal-
dron V. Schlang, 47 Hun, 252. The power of sale
when freed from the provision w^hich violates the stat-
ute, may thus be executed at any time, and upon such
sale, distribution may be made as provided in the will.
Smith V. Chesebrough, 176 N. Y. 317.
Decreed accordingly.
Matter of the Taxation under the Acts in Eelation to
Taxable Transfers of the Property of Gerard
Beekman, Deceased.
(Surrogate's Court, Nassau County, December, 1920.)
Transfer tax — what subject to — association for beneflt of a
family not exempt — Tax Law, § 221.
The " Beekman Family Association " which was incorpor-
ated under the Membership Corporation Law by members of
the Beekman family, including the testator, does not come
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74 Mattes of Beekmak.
Surrogate's Court, Nassau County, December, 1920. [Vol, 114.
within the class of corporations entitled to an exemption
under section 221 of the Tax Law, and property passing to
said association, as residuary legatee, is subject to a transfer
tax.
Appeal from an order assessing the transfer tax.
Herbert L. Fordham, for executors, and also for
Beekman Family Association, appellants.
Jeremiah Wood, for state comptroller, respondent.
Smith, Act. S. This is an appeal taken by the
executors under the will of the aibove named decedent,
and by the Beekman Family Association, the residu-
ary legatee and devisee, from the appraisal and the
order entered thereon and dated January 9, 1920.
If the property passing under the residuary pro-
vision of said will is to be wholly exempt from taxa-
tion, the reason for such exemption must be that the
residuary legatee and devisee (the Beekman Family
Association), comes within one of the classes of cor-
porations specified in section 221 of the Tax Law,
to wit: religious, educational, charitable, missionary,
benevolent, hospital or infirmary corporations; and
if not wholly exempt, but partially exempt, then it
must come within the class of corporations entitled,
under the said section, to a restricted exemption,
namely, a corporation organized for moral or mental
improvement of men or women, or for scientific, liter-
ary, library, patriotic, cemetery or historical purposes-.
In order to determine the character of a corpora-
tion we must look to its charter, or in this case, to its
articles of incorporation. Matter of DePeyster, 210
N. Y. 216 ; People ex rel. Wall d H. St. R. Co. v. Miller,
181 id. 328. This being a well-settled rule of law, it
seems to me that what the testator did before his death
in the way of conferring benefaction upon the Beek-
man Family Association and what application or use
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Matteb of Beekmak. 75
Misc.] Surrogate's Court, Nassau County, December, 1920.
the »aid association made of siicih gifts, and also what
has been done since the testator's death by the direct-
ors of said association, should not be considered in
determining the question now under consideration.
The Beekman Family Association was incorporated
under the Membership Corporations Law about ten
years ago by seven members of the Beekman family,
including the testator. The said testator was a bach-
elor, and died on November 9, 1918.
By the third article of incorporation of said asso-
ciation, memberFhip was restricted and limited to
^*A11 lineal descendants of William Beekman, who
became in 1647 a resident of New Amsterdam, now
New York City, when approved by a concurring vote
of not less than five Directors.'' The phrase ** The
Beekman Fariuly " b}' said article was made to include
the wives and widows of said lineal descendants.
The objects of the corporation as declared by its
articles of incorporation, are (1) To pay the expense
of preparatory and professional education or other
suitable education for members of the Beekman
family as may be designated and approved by at least
five directors of the corporation; (2) To furnish pecu-
niary aid exclusive of loans, to such poor and needy
members of the Beekman family as may be designated
and approved by at least five directors of the corpora-
tion; (3) To receive and hold, collect and preserve
family portraits, heirlooms of the Beekman family,
and matter connected with the history of that family ;
documents and books relating to the family, with
power to add to and publish the same; and to desig-
nate and maintain a place of deposit for receiving,
holding, collecting, preserving and exhibiting these
portraits, heirlooms and matter connected with the
history of the family and documents and books as an
undivided collection; (4) To care for and maintain,
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76 Matter of Beekman.
Surrogate's Court, Nassau County, December, 1920. [^bl. 114.
improve and embellish such burial lots or places in
cemeteries, including the erection of fences, monu-
ments, structures and tombs thereon in which are
interred the members of the Beekman family, as shall
be designated and approved by at least five directors
of the corporation, provided that at least one such
burial lot or place shall always be cared for, main-
tained, improved and embellished by the corporation ;
(5) To support and maintain and educate a person or
persons other than a member or members of the Beek-
man family and contribute towards the maintenance
of educational institutions otherwise than for the edu-
cation of members of the Beekman family, and to
contribute to charitable and benevolent uses and to
religious purposes as from time to time the board of
directors shall deem proper and desirable; provided,
however, that no such action as specified in this sec-
tion (5) shall be taken unless expressly authorized by
the by-laws of the corporation and then only by the
concurring vote of all and at least seven directors.
It is contended that the first object above expressed
is educational; that the second is charitable, the third
historical, the fourth for cemetery purposes and that
the fifth is educational, charitable, benevolent, reli-
gious and includes as those who may be the subject of
beneficence, all persons who are not members of the
Beekman family.
The test of a charitable gift or use and a charitable
corporation are the same. Matter of Rockefeller, 177
App. Div. 786-791; Matter of AHman, 87 Misc. Rep.
255, 260.
'' Many definitions of a charitable trust have been
formulated, but all the definitions that have been
attempted carry the implication of public utility in
its purpose. * * * If the purpose to be attained is
personal, private or selfish, it is not a charitable trust.
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Matter of Beekman. 77
Misc.] Surrogate's Court, Nassau County, December, 1920.
When the purpose accomplished is that of public use-
fulness, unstained by personal, private or selfish
coni^iderations, itjs charitable character insures its
validity." Matter of MacDowell, 217 N. Y. 454, 460.
See, also. Matter of Rockefeller, supra.
It may well be that the testator intended his prop-
erty passing under the residuarj- clause of his will
should be used for charitable and educational pur-
poses; but the prominent fact seems to me is that the
subjects and objects of his beneficence were limited to
his own kin. It is contended by counsel that the
Beekman family is a clan and that it includes a class
of persons much larger than tliose usually included in
the word *' family;" however, it does not seem to me
that it makes any difference whether the words
** Beekman family " include a large or small number
of persons or whether those persons are remotely or
closely related to the decedent; the fact is that the
class referred to is limited to the decedent's kin. I
see no reason why the directors of the association, if
• they so wished, could not apply the property to the
education of the nearest relatives of the decedent to
the exclusion of the remotest ; likewise, I see no reason
why the directors could not furnish pecunian- aid to
the nearest relatives of the deceased provided they
came within the class of poor and needy, to the exclu-
sion of those remotely related to the^ decedent.
The third object, as above expressed, no doubt is
historical. It is also genealogical, but like the first
two objects is confined exclusively to the family of the
decedent and has no public aspect.
The fourth object, it is true, was intended for ceme-
tery purposes, but, like the foregoing provisions, is
private and relates solely to the Beekman family.
The fifth object includes a very broad class. The
fact is, however, that it is not necessary that one dollar
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78 Matteb of Beekman.
Surrogate's Court, Nassau County, December, 1920. [Vol. 114.
of the property passing under the residuary clause of
teste tor 'e will may e\or be applied pursuant to the
provisions of section 5 ; in fact, it would seem that the
incorporators intended to make it difficult to apply any
of the funds of the corporation for purposes which
did not relate to the Beekman family; furthermore,
the educational institutions there referred to might
include private schools.
Counsel for the appellant has cited as his chief
authority for his contention, Matter of Rockefeller,
223 N. Y. 563, which in my opinion is easily distin-
guishable from this case. In that case the character
of the corporation under consideration as shown by its
charter, was ** for the purpose of receiving and main-
taining a fund or funds and applying the income and
principal thereof to promote the welfare of mankind
throughout the world,'* and in no sense was the pur-
pose of the corporation limited to a family.
Considering all of the objects as set forth in the
articles of incorporation of the Bookman Family
Association, I am forced to the conclusion that the
Beekman Family Association does not come within
the class of corporations contemplated by the statute
as being entitled to exemption under the Tax Law.
I therefore conclude that the property passing
under the residuary clause of the decedent's will is
not entitled to exemption and that the order confirm-
ing the report of the appraiser fixing the transfer tax
should be aflSrmed, with costs.
Order affirmed, with costs.
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400 Manhattan Avenue Cobp. v. Danzigeb. 79
Misc.] Municipal Court of New York, December, 1920.
400 Manhattan Avenue Corporation, Landlord, v.
William Danziger, Tenant.
(Municipal Court of the City of New York, Borough of Man-
hattan, Seventh District, December, 1920.)
Pleading — when defense stricken ont — summary proceeding —
In a summary proceeding to dispossess a tenant for non-
payment of rent of a dwelling apartment in the city of New
York, he must, at the time of filing an answer pleading that
the rent is unreasonable, deposit one month's rent as reserved
in the lease, and for failure so to do, the defense, on motion
of the landlord, will be stricken out.
Summary proceedings.
Jacob I. Berman, for motion.
Oscar Englander, opi)osed.
Crane, J. This is a summary proceeding to recover
possession of an apartment used for dwelling pur-
poses in the city of New York after default in the pay-
ment of rent. The tenant sets up the defense that
the rent is unjust, unreasonable and oppressive, which
defense was created by chapter 136 of the Laws of
1920, as amended by chapter 944, Laws of 1920, and
expressly authorized in a summary proceeding based
upon a default in the payment of rent by chapter 945,
Laws of 1920. The landlord moves to strike out the
defense that the rent is unreasonable upon the ground
that the tenant did not deposit one month's rent at
the time the defense of unreasonable rent was inter-
posed. The tenant contends that as a deposit is not
expressly required by chapter 945 of the Laws of 1920
no deposit need be made in a summary proceeding,
although he concedes that such deposit must be made
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80 400 Manhattan Avenue Corp. v. Danziger.
Municipal Court of New York, December, 1920. [Vol. 114.
as a condition precedent to setting up the defense in
an action.
At the outset it is to be observed that chapter 945
does not create the defense. It was created by chap-
ter 136 of the Laws of 1920. Chapter 945 merely gives
express permission to a tenant to set up the defense
so created in a summary proceeding, and further pro-
vides that when the defense is so interposed a bill of
particulars must be filed by the landlord, something
not otherwise required in a summary proceeding; but
the incidents of the defense, as well as its character,
are prescribed by chapter 136, as amended and con-
tinued by chapter 944; and all matters of procedure
and all presumptions are applicable whether the pro-
ceeding be an action for rent or a summary proceeding
based on the non-payment of rent. This would be so
on well known general principles, for both statutes
were passed by the legislature in a common scheme to
remedy the same evil and must be read in pari inateria.
People ex rel. Onondaga County Savings Bank v. But-
ler, 147 N. Y. 164, 168, 169; People ex rel. Jackson v.
Potter, 42 How. Pr. 260, 261, 262, 270; affd., 47 N. T.
375; Smith v. People, Id. 330, 339.
But we are not compelled to rely on this principle of
construction of statutes for a decision of this motion.
Section 2244 of the Code of Civil Procedure, providing
for an answer in a summary proceeding, reads in
part: ^* Such defense or counterclaim may be set up
and established [in a summary proceeding] in like
manner as though the claim for rent in such proceed-
ing was the subject of an action.'' Here is an express
declaration that this defense of unreasonableness
'^ may be set up * *" * in like manner '* as in an
action for rent. Therefore au the deposit is required
in setting up the defense in an action for rent, by the
provisions of this section it is required in setting up
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Matteb of McGuire. 81
Misc.] Surrogate's Court, Bronx County, December, 1920.
the same defense in a summary proceeding. There
is nothing unreasonable in such a construction. The
Legislature has lengthened the time of the return of
a precept so that it shall be returnable in not less tliau
five nor more than ten days. Laws of 1920, chap. 952.
A sunMnons in the Municipal Court must be answered
in five days. A jury trial may be demanded in a sum-
mary proceeding just as in an action, and the delay inci-
dent to the congested conditions in this court is likely to
be as great in one case as in the other. Each proceed-
ing terminates in a warrant for the recovery of pos-
session from the occupant. It is entirely consonant
with justice to require the same security for the rent
in one case as in the other.
Th« motion to strike out the defense will, therefore,
be granted unless within five days after the service of
the order to be entered hereon the tenant deposits
with the clerk of this court the rent rcser\'ed in the
agreement under which he obtained possession of the
premises.
Ordered accordingly.
Matter of the Guardianship of Francis S. McGuibb,
an Infant.
(Surrogate's Court, Bronx County, December, 1920.)
Guardians — who may ht appointed — infants — wiUs — Code Oiv.
Pro. § 2649.
Upon an application for the appointment of a guardian of
the person and estate of an infant, the fundamental and para-
mount consideration must be the welfare and beet interests
of the infant.
Where it is made to appear that the welfare and interests of
the infant will be best served by the appointment of some one
other than the petitioner, though not a relative, all other con-
siderations must give way.
6
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82 Matter of AIcOuire.
Surrogate's Court, Bronx County, December, 1920. [Vol. 114.
Where it appears that the interests of an infant between
the ages of thirteen and fourteen years will be best serv'ed
by the appointment of either his maternal grandmother or a
paternal aunt, and the infant expresses a preference for his
grandmother, she will be appointed guardian of his person anl
onder section 2649 of the Code of Civil Procedure the execu-
tor and trustee under the will of the father of the infant may
be appointed guardian of the infant's estate.
Proceedings on appointment of guardian for infant.
George H. Taylor, Jr., for Maria L. 0 ^Sullivan,
petitioner.
Edward J. McGnire, for Irving National Bank.
Joseph L. Yonng, for Lillian M. Hynes.
ScHULz, S. Application is made by the maternal
grandmother of an infant for her appointment as the
general guardian of his person and estate. A pater-
nal aunt opposed the same and asked for her appoint-
ment. Upon the hearing the respondent, through her
counsel, stated that in view of the infant's preference
as hereinafter set forth, she would not insist upon her
own appointment but would present such evidence as
she had to the court to aid it in deciding what, under
all of the circumstances, is for the best interests of the
infant.
No question is raised as to the eminent respectabil-
ity of any of the parties, and I am satisfied that they
are all actuated by the best of motives, namely, love
for the infant, and a desire that the action taken shall
be for his good.
Upon applications of this character due considera-
tion should be given to the relationship of the appli-
cant to the infant {Ledwith v. Ledwith, 1 Dem. 154;
Smith V. Smith, 2 id. 43; Morehouse v. Cooke, 1 Hopk.
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Matteb of McGuibb. 83
Misc.] Surrogate's Court, Bronx County, December, 1920.
Cli. 226) ; to the wishes of the infant himself, if of
sufficient age and intelligence {Osterhoudt v. Oster-
hovdt, 48 App. Div. 74, 77 ; Israel v. Israel, 38 Misc.
Bep. 335, 338; Matter of Burdick, 41 id. 346) ; to the
religious belief of the infant and the applicant
{Matter of Crickard, 52 id. 63, 66 ; Matter of Mancini,
89 id. 83; Matter of Lamb, 139 N. Y. Supp. 685) ; to
the financial condition of the parties, and to the pos-
sible home surroundings of the infant in the event
of the appointment. Matter of Watson, 10 Abb. N. C.
215; People ex rel. Brush v. Brown, 20 Wkly. Dig. 516,
The fundamental and paramount consideration,
however, as all of the authorities agree, must be the
welfare and the best interests of the infant {Matter
of Gustow, 220 N. Y. 373; Matter of Lee, Id. 532; UlU
man v. Ullman, 151 App. Div. 419; People ex rel.
Pruyne v. Walts, 122 N. Y. 238) and where it appears
that the same will be best served by the appointment
of some one other than the petitioner or the respond-
ent, even if that person be unrelated to the infant, all
of the other considerations must give way. Matter
of Gustow, supra; Matter of Vandeivater, 115 N. Y.
669; Holley v. Chamberlain, 1 Redf. 333.
The petitioning grandmother is nearer in relation-
ship to the infant than is the aunt. The infant is over
thirteen years and five months old, so that he is
almost of the age when under the Code (§ 2645) he
could have petitioned for his own guardian and he is
a boy of exceptional intelligence for his years. It was
shown that upon an inquiry made by the family, to
which the petitioner and her daughter were invited
but at which they were not present, and in the pres-
ence of the respondent and other relatives who favored
the respondent's appointment, the infant stated that
liis preference for guardian was his grandmother, the
ctitioner herein, and upon his examination in open
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84 Matter of McGuikk.
Surrogate's Court, Bronx County, December, 1920. [Vol. 114.
court he made the same statement. There is no diflfer-
enee in religious belief, and while the financial condi-
tion of the petitioner does not appear to be as good
as that of the respondent, I deem that fact of no great
importance, taking into consideration the probable
amount available for the infant's support, mainte-
nance and education. It is true that the petitioner is
more advanced in years than the respondent, it being
stated that she is upAvards of seventj^-five years old,
but she is unusually well preserved both physically
and nxentally and her household consists of herself
and a daughter, the latter being an aunt of the infant,
who for many years was a school teacher.
As I believe that the interests of the infant would
be well served by the appointment of either the peti-
tioner or the respondent, I think that in view of the
relationship and there being no other objection that T
deem decisive, the wishes of the infant should, as far
as possible, be given effect. The application of the
grandmother will, therefore, be granted in so far as
it is for her appointment as guardian of the person
of the infant.
I have been favorably impressed by the demeanor
and actions of the parties to the proceeding as well
as by the commendable conduct of Dr. Higgins and
the other relatives throughout this controversy, and
I bespeak for the infant, who, through a most deplor-
able accident remains as the sole representative of his
immediate family, a continuance of the same love and
interest in his welfare which was so strikingly mani-
fest at the hearing.
The executor and trustee under the will of the father
of the infant states that it intervenes in this proceed-
ing and asks that it be appointed the guardian of the
infant's estate. The petitioner expressed her willing-
ness that some one other than herself be appointed in
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Matteb of McGuibb. 85
Misc.] Surrogate's Court, Bronx County, December, 1920.
that capacity, but questioned the advisability of
appointing the trustee, and without impugning in any
way the motives, good faith and responsibility of the
latter, suggested the advisability of appointing some-
one else, fearing that there might, at some time, be a
clash between its interests as such guardian and as
trustee.
Upon the argument of the motion, I did not have
the will of the testator before me. An examination of
the same shows that the trustee's duty will be, among
other things, to collect the income of the trust fund
and apply the same to the use of this infant, so that the
appointment of some corporation other than the trus-
tee would involve a payment by the trustee to the
guardian of the estate, which in turn would expend the
same for the infant's maintenance, support and edu-
cation. The infant's estate, other than that which he
receives through the medium of the trust in his father's
will, is stated to be about $3,500. To appoint some
other corporation would seem to me to needlessly com-
plicate matters and might perhaps lead to additional
and unnecessary expense which can and should be
avoided. I deem the possibility of a conflict of inter-
est in which the rights of the infant would not have the
full protection of the court, so remote as to be of little
weight in reaching a conclusion. The situation is a
good deal like that in Bennett v. Byrne, 2 Barb. Ch.
216, 219, where the court said: **Here the appellant
was already the trustee of the infant, to expend the
income of the mother's estate in his support and edu-
cation. And the appointment of any other person as
guardian might subject the infant to the expense of
separate accounts of the expenditures for his support ;
the one on the part of the executor and truste.e of the
mother, who was charged with the support and educa-
tion of the infant out of the income of the property
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86 Matter of Keith.
Surrogate's Court, New York County, Januarj% 1921. [Vol. 114.
bequeathed by her, and the other by the guardian of
the estate which came to the infant directly from hia
father. It would also be likely to lead to collisions
between the executor and the guardian, as to what
expenditures were necessary and proper for the
infant, and as to the manner in which he should be
brought up and educated. For each would have a dis-
cretion to exercise, upon the subject of necessary
expenditures for those purposes.''
As I have the authority to appoint someone other
than the person for whose appointment the petition
prays (Code Civ. Pro. § 2649; Ledwith v. Ledwith,
supra; Matter of Wyvkoff, 67 Misc. Rep. 1; Matter of
Vandewater, 27 Wkly. Dig. 314; appeal dismissed,
115 N. Y. 669) and the petitioner having in effect con-
sented to the appointment of someone else, and
believing that the best interests of the infant make
the appointment of the trustee as such guardian advis-
able, it will be appointed guardian of the infant's
estate.
Decreed accordingly.
Matter of the Estate of A. Paul Keith, Deceased,
(Surrogate's Court, New York County, January, 1921.)
Transfer tax — what subject to — non-residents — Tax Law*
§ 220(3).
Where a non-resident testator left a taxable estate in this
state, the proper basis under section 220(3) of the Tax Law
for prorating the various amounts taxable on the transfers
under the will^ is the total amount of the real and personal
property transferred, and where the transfer tax appraiser
did not include the real estate in his compntations, the mi»ttpr
will be remitted to him for correction.
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Matteb or Keith. 87
Misc] Surrogate's Court, New York County, January, 1921.
In a transfer tax proceeding the appraised value of the
entire estate should be submitted under oath and not in the
form of a letter by the attorney for the executors, setting forth
his estimate of such value.
Appeal from an order fixing the transfer tax.
Maurice Goodman, for executors.
Lafayette B. Gleason (Schuyler C. Carlton, of coun-
sel), for State Comptroller.
Foley, S. On this appeal the question arises as to'
the construction of section 220, subdivision 3, of the
Tax Law. The decedent, a non-resident, left a net tax-
able estate in New York, fixed by the appraiser in his
report at $363,271.60. In prorating the various
amounts taxable on the transfers, the appraiser
adopted the ratio between the property in New York
and the entire personal estate, wherever situated.
The executors claim that the proper basis for com-
puting this ratio is the total amount of real and per-
sonal property transferred. The subdivision provides
as follows: ** Whenever the property of a resident
decedent or the property of a non-resident decedent
within this state, transferred by will, is not specifically
bequeathed or devised, such property shall, for the
purposes of this article, be deemed to be transferred
proportionately to and divided pro rata among all the
general legatee® and devisees named in said dece-
dent's will, including all transfers under a residuary
clause of such will.'' This amendment was adopted
to prevent the abuse, which existed before its enact-
ment, by reason of executors arbitrarily choosing to
pay certain legacies exempt by our law out of the New
York assets. The purpose of the legislature was to
provide for an equitable marshalling of the assets and
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88 Matter of Keith.
Surrogate's Court, New York County, January, 1921. [Vol. 114.
to prevent the efforts of executors '* to defeat the tax
or reduce its amount by electing to devote particular
parts of the estate to satisfy particular legacies/'
Matter of Porter, 67 Misc. Rep. 19. The law intends
that the property shall be deemed transferred propor-
tionately to and divided pro rata among all the lega-
tees and devisees other than specific legatees and
devisees. This comprehends the cash value of both the
realty and personalty transferred. The comptroller's
contention that the personal property is primarily
liable for the payment of legacies has no application
to this estate, for all the property is disposed of by
the will. His construction would again create the dis-
crimination sought to be eured^ Such discrimination,
however, would be exercised by the state and not by
the representatives of the estate. The use of the word
** devisees '^ is significant as showing a clear legisla-
tive intent to include the passing of real estate. The
fallacy of the method of computation used by the
appraiser is apparsnt, because the amount of the
transfer passing to tlie residuary legatees is actually
much larger (by reason of the omission of real estate)
than the sums which he has adopted. All the other
legatees suffer by this error. It is immaterial that in
this estate the transfers to the legatees happen to
be exempt. If they had not been exempt the general
scheme of proportional division of the property sub-
ject to taxation in New York would be even more
apparent. Although this method of computation has
been used for some time, no objection to it seems to
have been taken previously.
The appraiser erred, therefore, in not including the
real estate in his computations. The matter is remit-
ted to him for the purpose of taking proof as to the
total value of all the general legacies and the residu-
ary legacies transferred under the will. Incidental to
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Matter of Lichtenbebg. 89
Misc.] Surrogate's Court, New York Coanty, January, 1921.
this question upon the rehearing the appraised value
of the entire estate should be submitted under oath and
not in the form of a letter supplied by the attorney
setting forth his estimate thereof.
Appeal sustained.
Matter of the Estate of Bekjamik Lightbnbbbo,
Deceased.
(Surrogate's Court, New York County, January, 1921.)
Acconntinc — teatamentaiy tnurtees — wills— real estate.
Upon the accounting of testamentary trnstees, about thir-
teen years after the death of their testator, as to unproductive
and unimproved real estate situated in a sister state, which
though they were in duty bound to sell they still held undivided,
the annual taxes and carrying charges are properly charge-
able to and should be paid with interest out of the principal.
Upon a future accounting after a sale of the real estate
within six months from the date specified in an order direct-
ing the trustees to sell, they may be reimbursed from the
proceeds of the sale.
Proceeding upon the judicial settlement of the
account of trustees.
Masten & Nichols, for petitioner.
Edwin C. Mulligan, for C. Ersa Mongini, objector.
Eliphalet W. Tyler, for Benjamin Lichtenberg.
Bobert J. Farrington, for J. Chester, A. A. Lich-
tenberg, and Hortense C. Lichtenberg.
Foley, S. On a former accounting it was held by
Surrogate Fowler (Matter of Lichtenberg, 171 N. Y.
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90 Matter of Licutenbero.
Surrogate's Court, New York County, January, 1921. [Vol. 114.
Supp. 570) that the deficit in the operation of the New
York really was properly chargeable to principal, as
that property was included in an entirely different
trust from the trust consisting of personalty set up
for the widow. The surrogate further held it was im-
proper to invade the income of one trust to pay the
carrying charges of property held in another trust.
This decree was not appealed from. The accounts
now before the surrogate include the unproductive and
unimproved real estate in Seattle. On this accounting
objection is made by the widow that the trustee has
deducted the annual taxes from income due her, and
she asks that all the carrying charges be charged to
principal. The real estate involved here is still held
undivided by the trustee. The devisees of the one-
half, which vested on the death of Moses, refused to
accept undivided interests, and the trustee has since
been unable to sell the property to advantage.
The will of the testator sets forth that all provisions
for the widow were made in lieu of dower and in com-
pliance with an ante-nuptial agreement. An income
sufficient for her support was therefore contemplated
by the testator. While, the trust fund of personalty
amounts to $66,716.41, the widow has received no
income since July, 1919. The retention of this real
estate, over which the trustee has a power of sale,
imperils the life interest of the widow, and the pay-
ment of taxes is at present depriving her of any
income. A continuation of this policy will benefit the
remaindermen alone. Although the property in
question was owned by the testator, his will provides,
** No part of my estate shall be invested in unim-
proved property.'' Evidently the testator did not
intend to have this unproductive real estate remain
permanently in the trust fund. His will further gave
his trustees '* full power and authority to sell, mort-
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Matter of Licutekbebq. 91
Misc.] Surrogate's Court, New York County, January, 1921.
gage, lease or otherwise dispose of any and all real
estate of which I may die seized, and they may deem
fit : also to change any and all investments without any
personal liability on the part of them or either of
them.'' That the trustees have a power of sale can-
not be seriously disputed, even though the trust as to
one-half has terminated. Furniss v. Cruikshank, 191
App. Div. 450, cited by counsel for remaindermen, is
not in point. In that case the trustees had divided
the property and set up separate trusts, and the
income from the productive property was sufficient to
support the widow. The plain intention of testator in
the will, therefore, justifies a departure from the gen-
eral rule requiring payment of taxes and carrying
charges out of income. Spencer v. Spencer, 219 N. Y.
459 ; Lawrence v. Littlefield, 215 id. 561. In view of the
decision of Surrogate Fowler, acquiesced in by all the
parties, and for the other reasons just stated, I am of
the opinion that the raxes and charges are properly
chargeable to and should be paid, with interest, out of
principal. Spencer v. Spencer, 183 N. Y. Supp. 870,
873. Reimbursement may be provided for in a future
accounting from the proceeds of the sale of the realty
when a sale is had. Almost thirteen years have
elapsed since the death of the testator without a com-
plete disposition of this property. The trustees were
bound to sell this realty, and this should be done at
the earliest opportunity. The decree to be submitted
should contain a direction to sell the real estate within
six months from October 29, 1920, as stipulated by all
the parties in open court.
Decreed accordingly.
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92 Jackson v. Grey.
Appellate Tenxi; First Department, January, 1921. [Vol. 114.
T. J. Fletcher Jackson and Gertrude H. M. Jackson,
Landlords, Respondents, v. Edna Grey, Tenant,
Appellant, and Alta Brennan et al., Under-tenants.
(Suprone Court, Appellate Term, First Department, November,
1920, Term — filed January, 1921.)
Smninary proceedings — when will not lie against tenant on the
gronnd of expiration of term — landlord and tenant — lease —
Code Civ. Pro. § 2231 (1-a) aided by Laws of 1920. chap. 942.
Under section 2231 of the Code of Civil Procedure, as
amended by chapter 942 of the Laws of 1920, by adding sub-
division 1-a to the effect that no summary proceeding *' shall
be maintainable to recover the possession of real property
• * • occupied for dwelling purposes," summary proceed-
ings on the ground of the expiration of the term will net lie
against the tenant of several floors of a private house which
have been sublet and are used exclusively for dwelling pur-
poses, and a final order in favor of the landlord will be
reversed and final order directed in favor of the tenant.
Appeal by tenant from a final order of the Munici-
pal Court of the city of New York, borough of Man-
hattan, fifth district, in favor of the landlords.
David G. Godwin, for appellant.
Randolph M. Newman (Leonard Klein, of counsel),
for respondents.
BijuR, J. This proceeding was brought to dispos-
sess the tenant on the ground of expiration of her
term. The determinative consideration in the case is
the application of chapter 942 of the Laws of 1920 (one
of the housing acts), which amended section 2231 of
the Code of Civil Procedure by adding subdivision la,
to the effect that no summary proceeding '* shall be
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Jackson v. Grey. 93
Misc.] AppeUate Term, First Department, January, 1921.
maintainable to recover the possession of real
property * • * occupied for dwelling purposes,'*
except in instances not relevant to the present case.
It appears that the premises here involved are the
second and third floors of a private house at No. 132
West Eighty-seventh street, which the tenant has sub-
let to a number of subtenants, and that the same are
used exclusively for dwelling purposes. It seems to
me to be perfectly clear that these premises fall within
the description of the statute quoted, and that, there-
fore, summary proceedings will not lie. The respond-
ent urges that as between the landlords and this
particular tenant the tenant '* made a business " of
subletting furnished apartments. The statute does
not, however, recognize the nice distinction thus
sought to be superimposed upon it. In my opinion
it was the intention of the legislature to forbid the
bringing of summary proceedings in respect of prem-
ises occupied for dwelling purposes, and no distinction
was made between lessees and any number of sub-
lessees. The manifest purpose of the statute would
be frustrated if the tenancy here in issue could be
disturbed with the consequent disturbance of the
occupation by the undertenants, while no useful pur-
pose w^ould be subserved by such a proceeding, except,
possibly, to enable the landlords to succeed without
compensation to ** the business *' of the tenant in
subletting the apartments.
Judgment reversed, with thirty dollars costs and
final order directed in favor of the tenant.
MuLLAN, J., concurring in result.
Judgment reversed, with thirty dollars costs.
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94 Btjlova v. Babnett, Inc.
Appellate Term, First Department, January, 1921. [Vol. 114.
Adoij^h Bulova, Appellant, v. E. L. Babnett, Inc.,
Respondent.
(Supreme Court, Appellate Term, First Department, December,
1920, Term — filed January, 1921.)
Pleading — when demnrrer snstained — services — corporations ^
assignments — Stock Oorporation Law, § 66.
Unless it appears in an action to recover upon an assigned
claim for services rendered and material furnished by plain-
tiff's assignor, a corporation, that plaintiff was an officer,
director, stockholder or a creditor of the corporation, the
assignment is not null and void under section 66 of the Stock
Corporation Law and said statute is not a defense to the
alleged cause of action.
A separate defense, pleading that the assignment set forth
in the complaint, was executed by one H. while he was assum-
ing to act as the vice-president of the corporation, and was
received by plaintiff with full knowledge and notice of inten-
tion to give him a preference " as an alleged creditor " over
other creditors of the corporation, and for that reason the
assignment is null and void, is provable under the general
denial in the answer, and an order overruling a demurrer to
the separate defense will be reversed and the demurrer sus-
tained with leave to serve an amended answer.
Appeal by plaintiff from that part of an order of
the City Court of the city of New York overruling
plaintiff's demuner to the fourth defense.
Sanford H. Cohen (George Cohen, of counsel), for
appellant.
Frederick W. Sparks, for respondent.
Guy, J. The action is to recover for services ren-
dered and materials furnished to defendant by the
plaintiff's assignor S. S. Corporation. As a fourth
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BuLovA V. Barnett, Ixo. 95
Misc.] Appellate Term, First Department, January, 1921.
defense defendant set up in its amended answer that
the alleged assignment mentioned in the complaint
was executed by one Henschel purporting to act es
vice-president of the assignor corporation to the plain-
tiff, ** who then claimed to be a creditor '' of the cor-
poration; that the corporation was insolvent and had
refused to pay its notes and other obligations, and
that the alleged assignment set forth in the com-
plaint was executed by the said Henschel while he was
assuming to act as the vice-president of the S. S.
Corporation, and was received by the plaintiff with
full knowledge and full notice, and with the intent of
giving him a preference '* as an alleged creditor ^*
over other creditors of the corporation; and that by
reason thereof the alleged assignment was and is null
and void.
The case has been before this court and before the
Appellate Division on motions to strike out portions
of the original answer and for similar relief. Ill
Misc. Rep. 150; 193 App. Div. 161. On these prior
appeals the defense now before the court was the fifth
defense in the original answer; and it was held by
both this court and the Appellate Division that as the
defense was a plea of confession and avoidance under
section 66 of the Stock Corporation Law the denials
which were made a part of the defense in the original
answer should be stricken out. The court below,
however, without expressly deciding that the plea
constitutes a defense, has held that the defense is
provable under defendant's general denial and over-
ruled the demurrer.
It remains to be considered whether an assign-
ment made by the corporation under the circum-
stances *' is null and void." The acts prohibited by
section 66 of the Stock Corporation Law, in so far as
relevant to a consideration of this appeal, are cor-
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96 BuLOVA V. Barxett, Inc.
Appellate Term, First Department, January, 1921. [Vol. 114
porate transfers to officers, directors or stockholders
for the payment of any debt or upon any other con-
sideration than the full value of the property paid in
cash, and transfers by insolvent corporations with the
intent of giving a preference to a creditor over other
creditors of the corporation; and unless it appears
that the plaintiff was an officer, director or stock-
holder or a creditor of the corporation the case would
not come within the statute, and the statute would not
be a defense to the alleged cause of action. While the
theory of the pleader is that the plaintiff was a credi-
tor of the corporation it is not alleged in the defense
that the plaintiff was a creditor, the only refereilVe
to the plaintiff in that regard being that he ** claimed
to be a creditor " and that the assignment was made
to him with the intent of giving him a preference **a8
an alleged creditor." The complaint alleges the mak-
ing of the assignment to plaintiff for a valuable con-
sideration. Assuming, however, that the defense sets
up a transfer within the statute, while the precise
point does not seem to have been squarely decided,
the trend of judicial construction of the act indicates
that as to a corporate debtor, such as the defendant
in this action, such a prohibited transfer would not be
void in the sense that the assignee could not main-
tain suit for the recovery of the assigned claim. A
contrary construction would impose a perilous burden
upon corporate debtors ignorant of the details of the
internal management of a corporation assignor and
subject them to the hardship of a double payment.
To hold the preferential assignee accountable to the
creditors (as the statute expressly does in this case)
and to permit a debtor to pay an indebtedness upon an
assignment valid on its face seems more in accord with
the spirit of the statute.
Our attention has been called to a decision of the
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BuLovA V. Barnett, Inc. 97
Misc.] Appellate Term, First Department, January, 1921.
Appellate Division rendered in this case since the
argument, which determines that the S. S. Corpora-
tion, the plaintiff's assignor, must be permitted to
intervene in this action in order to litigate its claim
that the assignment to the plaintiff was made in fraud
of its own creditors and is therefore void as against
it. Nothing contained in that opinion seems to us to
support the defendant's contention herein. On the
contrary, if this defendant is in a position to raise the
same defense which the S. S. Corporation seeks to
raise, there would be no reason to permit the S. S.
Corporation to intervene for the Appellate Division
expressly states in its opinion that as a matter of fact
the S. S. Corporation has already succeeded by reason
of circumstances not disclosed in our present record,
to all the interest of the defendant in this action and
would therefore be in a position to take over the.
defense of this action and to derive the benefits of
any judgment in the defendant's favor.
Order in so far as appealed from reversed, with
ten dollars costs and disbursements, and demurrer to
the fourth defense sustained, with ten dollars costs,
with leave to defendant to serve an amended answer
within six days after service of a copy of the order
entered hereon
Order reversed, with ten dollars costs and disburse-
ments.
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98 163 East 36th Street Cobp. v. Stockbbidoe.
Appellate Term, First Department, January, 1921. [Vol. 114.
163 East 36th Street Corporation, Bespondent, v.
Frank Parker Stockbridge, Appellant.
(Supreme Court, Appellate Term, First Department, December,
1920, Term — filed January, 1921.)
Oonnterdaim — landlord and tenant — failure to give posseasion —
damagea— evidence.
Where in an aetion to recover rent of an apartment under
a written lease the evidence justifies a finding that because
of the acts of the landlord, its contractors and servants, the
tenant was not given possession of the apartment on time,
he is entitled to counterclaim his damages for the time he
was kept out of possession.
Where the court refused to submit the counterclaim to the
jury and directed a verdict in favor of the landlord for the
amount of rent claimed, the judgment entered on the verdict
will be reversed and a new trial ordered.
Appeal by defendant from judgment of the City
Court of the city of New York on verdict directed
for plaintiff and from order denying motion for new
trial.
Edwards, Murphy & Minton (Joseph F. Curren and
John McKim Minton, Jr., of counsel), for appellant.
G. Arnold Moses, for respondent.
Gut, J. In this action by landlord for rent of an
apartment the tenant sought under his counterclaim
to prove his damages for the landlord's failure to give
him possession of the apartment for the period begin-
ning October 1, 1919, the first day of the term, and
December twelfth, following. The lease, which is
dated August 18, 1919, is of '^the apartment known
as the first floor of the building 163 East 3Gth Street,
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163 East 36th Street Corp. v. Stogkbkidqe. 99
Misc.] Appellate Temiy First Department, January, 1921.
New York City," for the term of three years, to be
used and occupied by the tenant upon the condition
mentioned in the lease.
The tenant testified that on October first he asked
plaintiffs' treasurer McGrath when the tenant was
going to be able to get into the premises and McGrath
replied '* within a week or ten days;" that on October
first, there were no windows and no doors in the apart-
ment; floors not laid; tile floors in the bathroom and
kitchen not laid; hearths not laid; much of the plumb-
ing not installed, and the plastering only partly done ;
that the tenant observed in the apartment various
accumulations of lumber, door frames, window frames,
doors, windows, mantles, flooring, tools and equipment
for work of all kinds not pertaining to the apartment;
that on September twenty-sixth he had put in some
of his furniture, and that either on October first or
subsequent thereto there was furniture belonging to
other tenants of the building in the apartment; that
the use of the apartment for the storage of building
materials and other people's furniture was a continual
process for many weeks. The tenant further testified
that he was at the premises almost every day for some
weeks after the first of October ; that he saw McGrath
there frequently during October and November; that
on each occasion he asked McGrath when he was going
to let the tenant into the apartment and that plain-
tiffs' treasurer replied either '* in a few days " or
** think one week or two weeks;" that once or twice
McGrath said ** you can positively get in here within
a week or ten days;" and that McGrath would enter
into explanation as to why he was unable to deliver
the apartment, stating that it was because of delays
encountered in the construction work; that the
plastering was not completed until well toward the
end of November, and the painting not done until
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100 163 East 36th Street Corp. v. Stogkbridge.
Appellate Term, First Department, January, 1921. [Vol. 114.
December twelfth, and the carpenter work not finished
until two days afterwards ; that paints were mixed in
one of the rooms; that he obtained the keys of the
apartment December eleventh ; that he frequently saw
McGrath in the apartment after October first, also
workmen doing plastering work and plumbing and
other work.
The court refused to submit the counterclaim to the
jury and directed a verdict for the landlord for $1,050,
the amount of the rent claimed.
The tenant made out a prima facie case on his
counterclaim. An apartment in a tenement house Js
let and hired for human habitation, and in the light
of the law applicable to the construction and occupa-
tion of such houses and the proof given by the defend-
ant is was undoubtedly the intention of the parties to
the lease that the premises demised were a completed
apartment, and not merely a space on the first floor
without windows, doors or floors, bounded by unplas-
tered walls and lacking the necessary plumbing.
. Further, the jury would have been authorized in find-
ing that the tenant was prevented from taking posses-
sion because of the acts of the landlord, its contractors
and servants. In either aspect the tenant waiving
rescission would be entitled to his damages. Meyers
V. Liebeskind, 46 Misc. Rep. 272; Kopelman v. Orit-
man, 76 id. 188; Frank v. Morewood Realty Holding
Co., 89 id. 425.
Lehman and Wagner, JJ., concur.
Judgment and order reversed and new trial ordered,
with 00^ to appellant to abide event.
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PoTTBB V. American Union Line, Inc. 101
Misc.] Appellate Term, First Department, January, 1921.
Leta D. Pottbb, Appellant, v. American Union Line,
Inc., Eespondent.
(Supreme Court, Appellate Term, First Department, December,
1920, Term — filed January, 1921.)
Ships and shipping — contracts for towage — principal and agent.
The captain of a schooner has implied power to bind his
own principal by a contract for the towage of the ship.
Where the captain of a schooner made a contract with plain-
tiff to tow the ship, the person for whoee benefit the ship is
operated on the particular voyage in which the expense for
towage was incurred, not the actual owner of the ship, is
the principal of the captain and is liable upon the contract
for towage
Where payment for the services rendered was refused on
the ground that defendant was not the owner of the schooner
and that the captain was not defendant's agent but the agent
of the actual owner, a judgment dismissing the complaint will
be reversed and judgment directed in favor of plaintiff.
Appeal, by the plaintiff from a judgment of the
Municipal Court of the city of New York, borough of
Manhattan, first district, dismissing the plaintiff *b
complaint with costs to the defendant.
Foley & Martin (William H. Darrow, William J.
Martin, of counsel), for appellant.
Engel Brothers (Isidore Schneider, of counsel), for
respondent.
Lehman, J. The plaintiff was employed by the
captain of the schooner James W. Elwell to tow the
schooner from some place in the harbor of New York
to the Fairway buoy outside of Sandy Hook, for the
sum of $150. The captain indorsed upon the plain-
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102 Potter v. American Union Line, Inc.
Appellate Term, First Department, January, 1921. [Vol. 114.
tiflf's bill for this service the words '*Ain. Union Line,
11 Broadway, to sea from Red Hook, as agreed, $150.
A. C. Clark, Master." There is no claim that the
plaintiff did not render the services for which he was
to be paid the sum of $150, and there is no claim that
the captain did not have implied and apparent author-
ity to contract with the plaintiff for these services, but
the defendant refuses to pay the plaintiff's claim on
the ground that it was not the owner of the schooner,
and the captain of the schooner was not its agent,
but the agent of the actual owner, the Northland Navi-
gation Company, and that consequently no contract
made by the captain, even though such contract pur-
ported to be made by him as agent for the defendant,
is binding upon it. There can be no doubt that the
captain of a schooner has the implied power to make
contracts necessary and proper in the navigation of
the ship which will be binding upon the ship's owner.
The term ** owner " when used in this connection does
not mean necessarily the person in whom the legal
title to the ship is vested, but rather the person for
whose benefit the ship is operated on the particular
voyage in which the expense is incurred, and who dur-
ing that time has the direction and control of the ship,
its oflScers and crew. The legal presumption is in
favor of the continuance of ownership and control by
the general owners of the ship, but where the evidence
shows that there has been a parting with the posses-
sion of the ship so that during the voyage the absolute
owner has surrendered his control over her, the
oflBcers of the ship become the agents of the special
owner for the voyage, and have implied power to bind
him and not the general owner. Hagar v. Clark, 78
N. Y. 45. The question, therefore, which is to be deter-
mined in this case involves simply the ordinary rules
of agency. The captain of the ship had implied power
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PoTTBB V. American Union Line, Inc. 103
Misc.] Appellate Term, First Department, January, 19-1.
to bind Ms own principal, and the court was simply
called upon to determine whether the defendant or
the Northland Navigation Company was the captain's
principal.
The burden of proof naturally rested upon the
plaintiff, and in order to meet this burden he showed
by undisputed and documentary evidence that this
defendant had contracted in its own name with the
French high commission for the transportation of
freight during the war; that all arrangements in
regard to this freight were made by defendant's
servants; that it received in its own name payment
of all freight charges, and that it paid all expenses
including the wages of the captain. The plaintiff
further showed that the defendant corresponded in
its own name with the United States shipping board
and made application to them to place the schooner
Elwell on berth for Grecian ports with general cargo,
and guaranteed that after the vessel's outward voy-
age, it would return by such route as directed by the
chartering committee of the United States shipping
board. It is true that the letters to the United States
shipping board show that the defendant did not claim
to be acting as the general owner of the ship, but they
did show that the defendant claimed the right to con-
trol the course of the ship. The trial justice held, and
in my opinion held correctly, that this testimony was
sufficient to show prima facie that the defendant was
in control of the schooner, and, therefore, in a legal
sense the principal of the captain during this voyage.
Thereupon the defendant produced its secretary and
treasurer to rebut the plaintiff's testimony and the
inference that might be drawn therefrom. He testified
that the Northland Navigation Company was the
owner of the schooner, that the defendant acted only
as agents for the owners and signed the bills of lading
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104 PoTTBB V. American Union Line, Inc.
■■ — ■ ■ ^
Appellate Term, First Department, January, 1921. [Vol. 114.
for freight on this ship, with the word ** agents '-
after their name, that the captain was in charge of the
vessel for the owners, the Northland Navigation Com-
pany, though the defendant paid his salary, and in
fact received all the moneys and paid all the expenses.
He also testified that after the defendant received all
the moneys and paid out all the expenses, the defend-
ant ** rendered a statement to the Northland Naviga-
tion Company showing the expenditures and the
income.'* It is to be noted that his testimony that the
Northland Navigation Company, and not the defend-
ant, was the owner of the ship, that the defendant
acted only as agent for the Northland Navigation
Company, and that the captain of the ship was in
charge thereof for the Northland Navigation Com-
pany, involved merely conclusions of law and not evi-
dence. The only facts to which this witness testified
and which would constitute evidence to be considered
by the trial judge in determining the question before
him was that the defendant signed the bills of lading
with the description of agents after their name, and
that the defendant rendered a statement to the North-
land Navigation Company showing the expenditures
and the income. If in fact the defendant had complete
control and right to possession of the schooner, the
fact that they chose to describe themselves as agents
on the bill of lading would have no magic effect in
exempting them from liability on contracts made by
their duly authorized agents. On the other hand, if
the defendant was merely acting for the benefit of the
Northland Navigation Company and required to
account to its principal for its receipts and expendi-
tures and to pay over all the profits to its principal,
then it is not liable upon the contracts made by agents
whom it employed, not as its own servants, but as
servants of its principal. Apparently the trial justice
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Potter v. American Union Line, Inc. 105
Misc.] Appellate Term, First Department, January, 1921.
has held that the defendant's testimony that it ren-
dered a statement to the Northland Navigation Com-
pany of expenditures and income was suflScient to
show that the defendant was only the agent of the
general owner and to rebut any inference which might
otherwise have been drawn from the plaintiff's testi-
mony. Possibly if the defendant's testimony that it
rendered a statement of the income and expenditures
to the Northland Navigation Company was not
explained or shaken upon cross-examination it might
lead to the reasonable inference that the defendant
was bound to render such an account and to pay over
the surplus in whole to the Northland Navigation
Company, or in other words, that the Northland Navi-
gation Company was at all times the owner of the
j?hip and the receipts received therefrom and the
defendant merely its agent; though it would seem that
if that were the fact, the defendant, which must be in
possession of all the evidence necessary to show the
true relations between the parties, could have pro-
duced testimony to show exactly what the defendant
was required to do and actually did in connection with
the management and control of this ship. We need
not, however, now decide this question, because on
cross-examination this same witness, the defendant's
secretary and treasurer — and it may be said inci-
dentally that he is also an officer of the Northland
Navigation Company, which maintains its oflSces in
the same building as the defendant — testified : **The
Northland Navigation Company had no bank account.
They were only the holding company." It seems to
me that this final testimony of the defendant com-
pletely establishes the plaintiff's cause of action. The
Northland Navigation Company was only the holding
company. The defendant contracted for the freight in
its own name, received payment for that freight in
Digitized by
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106 May v. Dermont.
Appellate Term, First Department, January, 1921. [Vol. 114.
its own name, paid all the expenses of the ship, and
held itself out to the United States government as
authorized to guarantee the route of the ship on the
return voyage, and I cannot s-ee how it can be claimed
that the evidence is suflScient to show that in all these
transactions it was merely acting as the agent of a
company which it admits was only a holding compam^
and had not even a bank account. The very failure of
the defendant to produce evidence to show the actual
relations it bore to this holding company justifies the
inference that such evidence, if produced, would not
have been favorable to it. Under the circumstances
I feel that the judgment is contrary to the evidence
and the law, and should be reversed, with $30 costs
to appellant, and judgment directed in favor of the
plaintiff in the sum of $150, with interest and costs.
Guy and Wagner, JJ., concur.
Judgment reversed, with thirty dollars costs to
appellant.
William B. May and Another, etc.. Appellants, v.
Gertrude Dermont, Respondent.
(Supreme Court, Appellate Term, First Department, December,
1920, Term — filed January, 1921.)
Statutes — constmction of — meaning of words " occnpied for
dwelling purposes" — summary proceedings — landlord and
tenant — Laws of 1920, chap. 942.
Although the legislative intent in the use of the words " oc-
eupied for dwelling purposes" in the statute (Laws of 1920,
chap. 942) by which a landlord's remedy by summary proceed-
ings is suspended, etc., means an occupation by the tenant for
such purposes, and the statute should not be so construed as to
include premises which are occupied by the tenant for the pur-
Digiti
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May v. Debmont. 107
Misc.] Appellate Term, First Department, January, 1921.
pose of providing dwelling or shelter to others for the tenant's
profit, the legislature did not intend, however, to exclude from
the operation of the statute premises occupied as a dwelling,
not only by the tenant, but also by self-supporting members
of the family or paying guests not related and perhaps strangers
to the tenant, so long as such renting of the premises is merely
incidental to the tenant's occupation.
Appeal by the landlords from an order of the
Municipal Court of the city of New York, borough of
Manhattan, third district, dismissing the petition in
a summary proceeding.
Everett, Clarke & Benedict (A. Leo Everett, of
counsel), for appellants.
Campbell & Boland (Charles J. Campbell, of
counsel), for respondent.
Lehman, J. The landlord has brought a summary
proceeding to recover possession of a house leased to
the defendant after the expiration of the defendant's
term. At the trial the petition was dismissed on the
ground that the landlord's remedy by sumniarj- pro-
ceeding was suspended by chapter 942 of the Laws of
1920. That statute provides that in view of the exist-
ing public emergency no summary proceeding ** shall
be maintainable to recover the possession of real
property • • • occupied for dwelling purposes ''
except in certain contingencies ; and the only question
in this case is whether the house leased by the tenant
is ** occupied for dwelling purposes " within the
meaning of the statute.
No evidence was presented at the trial, but the
tenant conceded, and the landlord has accepted the
concession, that the premises which the landlord seeks
to recover are ** a house in the City of New York
occupied for dwelling purposes and for the purposes
of this record, there are sixteen rooms in the house
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108 May v. Dermont,
Appellate Term, First Department, January, 1921. [Vol. 114.
and that she (the tenant) does not occupy more than
one or two rooms at any time." It was further con-
ceded that the tenant is a widow and that ** she has
no other business except the letting of rooms in this
house and that the letting of rooms in this house is
her sole or principal means of livelihood."
It is quite evident that the words '* dwelling pur-
poses " are not capable of a fixed definition which
will be always applicable regardless of the context in
which they are used, and an examination of the cases
in which these words have been construed shows that
the courts have placed one construction on them when
used in a statute defining burglary, and another con-
struction when used in a statute intended to restri^jt
the granting of liquor licenses in residential districts ;
and they have placed one construction on them when
used in a restrictive covenant in a deed and another
construction on them when used in a warranty or
condition in an insurance policy. This case itself
furnishes a most striking example of the impossibility
of finding a definition of the words that will satisfy
all cases, for though the landlord asks us to reverse
a finding that the house is ** occupied for dwelling
purposes '^ within the meaning of the statute, he has
accepted a concession in which it is expressly stated
that '* the house is occupied for dwelling purposes."
It is plain that if we give the words a broad signif-
ication or even the ordinary signification in which
they were used by the parties at the trial, then we
must hold that the trial judge correctly held that the
landlord's petition must be dismissed under the
express provisions of the statute; and we can give
these words a narrower signification only if a narrower
construction will carry out the legislative intent. The
statute under consideration is a remedial and not a
penal statute, but it was enacted to meet an extraor-
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May v. Dermont. 109
Misc.] Appellate Term, First Department, January, 1921.
dinary emergency by remedies of an extraordinary
nature, and in construing the statute we are justified
in assuming that the legislature never intended that
its provisions should apply to cases where they could
not constitute a remedy for the conditions which the
legislature sought to relieve. The legislature has
sought to protect the homes of inhabitants of great
cities and to prevent landlords from compelling
tenants to pay unreasonable rents for their homes.
The legislature has not sought to protect the tenants
of business premises from demands for unreasonable
rent, and the landlord argues that in the present case
the tenant is under the conceded facts using the
premises for the business of a rooming house, and
the legislature never intended that her business should
receive extraordinary protection.
It is plain that the legislature did not intend its
extraordinary remedies to apply to premises hired
by the tenant for purposes of profit, even though that
profit be made by the tenant in operating a hotel, a
rooming house or a boarding house. The extraor-
dinary laws do not prevent the lessee of such
premises from securing from his guests all the com-
pensation which he can induce or compel them to pay
for housing, and it may well be argued that when the
legislature used the words *' occupied for dwelling
purposes ** it intended an occupation by the tenant
for such purposes, and that the statute should not
be construed as including premises which are occupied
by the tenant for the purpose of providing dwelling
or shelter to others for the tenant's profit.
For the purposes of this appeal, I have assumed
that this is the correct construction of the statute,
but even if so construed, it seems to me that its provi-
sions are broad enough to protect the tenant in this
case. Obviously the legislature did not intend to
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no May V, Dermont.
Surrogate's Court, New York County, December, 1920. [Vol. 114.
exclude from the operation of the statute premises
occupied as a dwelling not only by the tenant, but
also by self-supporting members of the family who
pay rent or board to the head of the household, and
it can hardly be contended that the legislature intended
to exclude from its operation similar cases where the
paying guests are not related and perhaps strangers
to the tenant so long as the renting of the rooms to
strangers is merely incidental to the occupation of
the premises by the tenant as his dwelling. The
landlord's counsel urges, however, that even if this
construction be correct, in the present case it cannot
reasonably be said that where fourteen or fifteen rooms
in a house of sixteen rooms are leased for profit,
the premises are still occupied by the tenant as her
dwelling, and that in effect the house is occupied for
business rather than dwelling purposes. While I
recognize that the question is not free from doubt, I
cannot agree with the landlord's contention. The
tenant lives in the house and it constitutes her dwell-
ing. So far as the record shows, she manages the
household affairs, and the other persons who occupy
most of the rooms in the house are in a sense mem-
bers of the household and even of the family. There
is no essential difference in the relations of the head
of a household which includes one lodger who pays for
his lodging and one which includes a number of
lodgers. Even the term ** family " is sometimes given
a meaning sufficiently broad to include boarders or
lodgers (see Words and Phrases Judicially Defined),
and it seems to me that the legislative intent to pro-
tect tenants of premises '* occupied for dwelling pur-
poses " cannot be given its proper force and effect,
unless we include within the protection of the statute
all tenants who occupy the premises for the purposes
of dwelling therein with their households, including
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Staracb & Co., Inc., v. Raporel S. S. Line, Inc. Ill
Mise.] Appellate Term, First Department^ January, 1921.
lodgers who form parts of the household even though
the household is supported in whole by the payments
made by the lodgers.
Order should therefore be affirmed, with twenty-five
dollars costs.
QuY and Wagneb, JJ., concur.
Order affirmed, with twenty-five dollars costs.
AcHiLLB Starace & Co., Inc, Respondent, v. Raporel
S. S. Line, Inc., and Edward M. Raphel & Co., Inc.,
Appellants.
(Supreme Courts Appellate Term, First Department, December,
1920, Term — filed January, 1921.)
Ships and sliipping — contracts — terms of — eridence — rates —
trial.
The only issue litigated in an action for the non-delivery
of three cases of goods delivered by plaintiffs to defendant
at the city of New York for shipment to a foreign port, was
whether defendant's liability was limited to $100 for each case
lost, and thoui^h the evidence showed that defendant had two
rates, one of which was ad vctloremy the trial justice, in spite
of a clause in the bill of lading issued at the time the goods
were delivered to defendant, which provided that " unless a
higher value be stated herein, the value of the goods does not
exceed $100 per package, nor $8 per cubic foot, and the
freight thereon has been adjusted upon such valuation, and
no oral declaration or agreement shall be evidence of a differ-
ent valuation," gave judgment in favor of plaintiff in the
sum of $688, the actual value of the goods which had been lost.
Held, that said clause was of itself a statement that the rates
were based upon a valuation of $100 and constituted a notice
that if the shipper desired to place a higher valuation on the
goods shipped, he must pay a higher rate.
The contract in terms showing the existence of an ad valorem
rate, the plaintiff, which had been in the export business for
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112 Stabacb & Co., Inc., v. Raporel S. S. Line, Inc.
Appellate Term, First Department, January, 1921. [Vol. 114.
several years, would have had notice of essential choice of rates
had it read the contract or acquainted itself with its terms, and
the judgment in its favor will be reduced to $288 and, as so
modified, affirmed.
Appeal by the defendants from a judgment of the
Municipal Court of the city of New York, borough of
Manhattan, first district, rendered in favor of the
plaintiff, for the sum of $783.
James A. Hatch, for appellants.
David Bernstein, for respondent.
Lehman, J. The plaintiff delivered to the defend-
ants three cases of goods for shipment from this city
to Port-au-Prince, in the republic of Haiti. The goods
were never delivered to the consignee, and the defend-
ants admit liability for their loss. At the trial it was
stipulated that the only issue to be litigated is
*' whether or not defendants' liability in this action
is to be limited to the sum of $100 for each package
or case lost.''
When the goods were delivered to the defendants
they issued a bill of lading, and amongst the condi-
tions printed upon the bill of lading is the following :
** 21. Unless a higher value be stated herein, the
value of the goods does not exceed $100 per package,
nor $8 per cubic foot, and the freight thereon has been
adjusted upon such valuation, and no oral declara-
tion or agreement shall be evidence of a different
valuation. ' ' In spite of this clause in the bill of lading,
the trial justice has given judgment in favor of the
plaintiff in the sum of $688, which represents the
actual value of the goods which had been lost.
In the case of Mariani Bros., Inc., v. Wilson, Sons
d Co., Ltd., 188 App. Div. 617, the court reiterated
the well-settled rule ** that a carrier may limit its
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Stabace & Co., Inc., r. Rapokel S. S. Like, Inc. 113
Misc.] Appellate Term, First Department, January, 1921.
lia^bility for damages occasioned by its own negli-
gence by a contract fairly made with the shipper agree-
ing on a valuation of the property carried, with the
rate of freight based on the condition that the carrier
assumes liability only to the extent of the agreed
valuation. '* In that case, however, the court pointed
out that such contracts limiting the liability of the
carrier are valid only where ' * the rate of freight is
based on the condition that the carrier assumes the
liability only to the extent of the agreed valuation/'
and that, therefore, ** the * essential choice of rates'
must be made to appear before a carrier can success-
fully claim the benefit of such a limitation and relief
from full liability,'' and the trial justice has appar-
ently held that this '' essential choice of rates " was
not shown in the present case.
The evidence does show that the defendants did
have two rates, and that one of the rates was an
ad valorem rate, but there is no evidence that defend-
ants filed any tariff showing such rate with the inter-
state commerce commission, or that it was expressly
offered to the plaintiff's agent who had charge of this
shipment, and this agent denies that he knew of the
existence of this rate or of the clause in the contract
limiting the carrier's liability. The shipment by the
plaintiff was not an interstate shipment, and the
defendants were, therefore, not required to file any
tariff with the interstate commerce commission. The
clause limiting the liability itself constitutes a state-
ment thfi^tthe rates were based upon a valuation of $100
and constitutes a notice that if the shipper desired to
place a higher valuation on the goods shipped, he must
pay a higher rate. In the case of Mariani Bros.,
Inc., V. WUson, Sons d Co., Ltd., supra, the court
stated in regard to a similar clause : '* The burden was
upon the plaintiff to show that there was no alternative
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114 Stabace & Co., Inc., v. Bapobel S. S. Line, Inc.
Appellate Term, First Department, January, 1921. [Vol. 114.
in existence or that he was refused an alternative rate
by the carrier. He was informed that there was such
a rate by the terms of the bill of lading and it was
clearly stated that unless he shipped under such rate
the liability would be limited. In the absence of evi-
dence to the contrary the presumption is in favor of
the statement made in the hill of lading. ' ' The plain ti ff
admits that this statement of the law is binding upon
this court, but claims that it has overcome this pre-
sumption by its affirmative proof that it did not know
of the existence of' this clause in the contract or of
the existence of any ad valorem rate. If the plaintiff
had notice of the existence of an ad valorem rate the
benefit of which he could secure upon request, then
plainly the defendants were not required expressly
to oflfer such rate to the plaintiff. Since the terms
of the contract itself show the existence of such a rate,
the plaintiff would have had notice of *' essential
choice of rates '' if it had read the contract. The
plaintiff had been in the export business for several
years. It undoubtedly knew that the bill of lading
delivered by the defendants contained various cove-
nants and conditions which were intended to constitute
the terms upon which the shipment was delivered and
received, and the defendants cannot be deprived of the .
benefit of any such terms merely because the plaintiff
did not choose to read their contract or acquaint itself
with its terms.
The judgment in plaintiff's favor should, therefore,
be reduced to the sum of $288, with appropriate costs
in tihe court below, and as modified affirmed, with
twenty-five dollars costs to the appellants.
Guy and Wagnbb, JJ., concur.
Judgment modified and as modified affirmed, with
twenty-five dollars costs to appellants.
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Taplingeb & Co. V. Ward & Co. 115
MJ£C.] Appellate Term, First Department, January, 1921.
John Taflikger & Co., Eespondent, v. Montgomery
Ward & Co., Appellant.
(Supreme Court, Appellate Term, First Department, December,
1920, Term — filed January, 1921.)
Oorporatioiu — service of process on foreign — General Corpora-
tion Law, § 16 — when ai&davit of service of summons and
complaint insnfficient — vacating judgment taken by default
on such an aifildavit.
The statute (General Corporation Law, § 16) requires a
foreign corporation doing business in this state to make and
file in the office of the secretary of state a designation of the
person upon whom service of process against the corpora-
tion may be made in this state.
Where with due diligence the plaintiff in an action against
such a corporation, which has complied with section 16 of the
General Corporation Law, could have ascertained the name
of the person designated for the purpose required by the
statute, and the affidavit upon which a default judgment was
granted, states that service of the summons and complaint was
made on the managing agent of the defendant within this
state, an order denying a motion to vacate and set aside the
judgment, on the ground thai the papers were not properly
served, will be reversed, with costs, and the motion granted,
with costs.
Appeal by the defendant from an order of the
Municipal Court of the city of Now York, borough of
Manhattan, first district, denying a motion to vacate
the service of the summons and the judgment entered
by default on such service.
Arthur L. FuUman, for appellant.
Ludwig M. Wilson, for respondent.
Lbhmak, J. The plaintiff has obtained a judgment
by default against the defendant. After the judgment
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1 1 6 Taplingeb & Co. V. Ward & Co.
Appellate Term, First Department, January, 1921. [Vol. 114.
was entered the defendant appeared specially and
moved to vacate and set aside the judgment on the
ground that the summons and complaint were never
properly served upon the defendant. The original
affidavit of service upon which the judgment was
granted stated that service was made on the managing
agent of the corporation within this state. Obviously
this affidavit is insufficient, because service upon a
foreign corporation can be made on its managing
agent within this state only where no designation has
been made, as provided in section 16 of the General
Corporation Law, or if neither the person designated
nor an officer specified in subdivision 1 of section 432
of the Code of Civil Procedure can be found with due
diligence. After this motion was made the plaintiff
filed an additional affidavit, but this affidavit, even if
properly received after entry of judgment, is insuffi-
cient to cure the defect. It appears undisputed that
a designation was made by the defendant, as provided
in section 16 of the General Corporation Law, and the
plaintiff, therefore, could not serve the summons and
complaint upon the defendant's managing agent unless
the person so designated could not with due diligence
be found within this state. The plaintiff made no
attempt to find out whether such designation had been
filed, and did not know the name or address of the
person designated, and of course made no effort to
find this person. The process server merely took the
summons and complaint to the defendant's office in
this state, inquired there for the proper person upon
whom to serve the papers in the action, and was in-
formed by defendant's manager that he was the proper
person. Neither the managing agent nor any other
person in defendant's employ had any apparent
authority to state that he was the person to accept
service of processes, or to give any directions as to
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Potter v. Kurlander Bros. & H. C. & S. Co. 117
Misc.] Appellate Term, First Department, January, 1921.
the proper person upon whom process was to be served.
The defendant was required under the law to file in
the office of the secretary of state a designation of the
person upon whom process could be served, and no
other person could assume to act in place of the person
so designated. With due diligence the plaintiff could
have found out the name of that person, and there is
not a scintilla of evidence to sustain a finding that
the plaintiff could not have found him at his office in
the defendant's place of business, or that he would
have evaded service.
Order, therefore, reversed, with ten dollars costs,
and motion to vacate the service of the summons and
the judgment entered thereon i« granted, with ten
doUars costs.
Guy and Wagner, JJ., concur.
Order reversed, with ten dollars costs, and motion
granted, with ten dollars costs.
Charles Potter and Another, Appellants, v. Kurlan-
der Bros. & Harfibld Cloak and Suit Company,
Respondent.
(Supreme Court, Appellate Term, First Department, December,
1920, Term — filed January, 1921.)
Accord and satisfaction — what not — written order for goods -—
parol evidence of unwritten acceptance.
Upon the trial of an action to recover the unpaid balance
of the agreed price of goods to be manufactured, sold and
delivered, evidence was g^ven in support of the allegations of
the complaint. During the cross-examination of defendant
there was received in evidence an agreement to compromise
the dispute between the parties which had been pleaded in
the answer as a defense and bar. The plaintiffs then rested
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118 POTTEE V. KURLANDER BrOS. & H. C. & S. Co,
Appellate Term, First Department, January, 192L [Yo]. 114.
their case and a motion by defendant to dismiss the complaint
on the sole ground that said agreement established an accord
and satisfaction and was therefore a bar to the action, was
granted. Reld, that plaintiff, having made out a prima facie
ease, it was error to dismiss the complaint as manifestly the
agreement was merely an accord and not an accord and
satisfaction. (P. 120.)
The agent .of plaintiffs testified that as the result of con-
versations defendant's treasurer gave him written orders which
stated fully the style of goods, the price and a time within
which delivery was to be made and also the tei^ms of pay-
ment When the witness was asked whether, at the time he
received the order, anything was said by him to defendant's
treasurer with reference to the time of delivery, the court
excluded the testimony on sustaining the objection of defend-
ant's counsel that oral evidence was being offered to vary a
written instrument. Reldy that in the absence of evidence in
writing of plaintiff's acceptance of the order, the exclusion
of the testimony was error.
Appeal by plaintiflfs from a judgment of the City
Court of the city of New York, di«mis«ing the com-
plaint at the olose of the plaintiflfs' case, after a trial
by the court and a jury.
Joseph Qans (C. Arthur Jensen, of counsel), for
appellants.
Louis Sachs, for respondent.
Wagner, J. This action was brought by plaintiflfs
to recover the agreed price of certain merchandise
which they claim was delivered to the defendant at
its request and not paid for. The defendant in its
answer denies the sale and delivery, and as a separate
defense alleges that an agreement w^as made between
the parties which provided as follows ^ the defendant
was to recall certain merchandise which it had refused
to accept from plaintiflfs, and which was at the time
of the making of the agreement in the possession of
an express company, and w^as to pay all bills it then
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POTTEE V. KURLANDER BrOS. & 11. (\ & S. Co. 119
Misc.] Appellate Term, First Department, January, 1921.
owed plaintiff, they agreeing to allow defendant a
reduction of fifty dollars on the moneys due. That
after the execution of this agreement '' the defendant
recalled the two packages specified in the agreement,
but that only one package containing ten suits was
received by the defendant from the express company.'*
That defendant then communicated thife fact to plain-
tiffs demanding that they deliver the remaining pack-
age containing seventeen suits, which the defendant
was to have returned to it under the agreement. That
the plaintiffs failed to make any further delivery,
and that thereafter the defendant tendered a sum it
claimed was due for the ten suits delivered, less an
overpayment it claimed it had previously made, and
that plaintiffs refused to accept the same. Then
follows an allegation that the defendant has always
been ready, willing and able to carry out the terms
of the agreement, ** but that the plaintiffs have failed
and refused, and still fail and refuse, to carry out any
and all parts of said agreement," and demands judg-
ment that the complaint be dismissed.
Upon the trial the plaintiffs presented evidence to
prove the allegation of their complaint, namely, that
certain goods were ordered in writing of them by
defendant, that deliveries were made pursuant to such
orders, that there was due to plaintiffs a balance of
$315.
During his cross-examination, the defendant's
counsel put in evidence as an exhibit in its behalf the
agnreenient to compromise the dispute which the
defendant had alleged in its answer as a defense and
a bar. The plaintiffs then rested their case, where-
upon defendant moved to dismiss the complaint upon
the sole ground that the agreement alleged in the
answer and in ovideneo established an accord and satis-
faction between the parties, and, therefore, was a bar
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120 Potter v. Kurlander Bros. & ii. C. & S. Co.
Appellate Term, First Department, January, 1921. [Vol. 114.
to plaintiff's action. The court granted the motion,
and plaintiffs now appeal from the judgment entered
upon the dismissal of their complaint.
It was error to dismiss the complaint. The plain-
tiffs had established a prima facie case for money due
for the merchandise delivered under an agreement
between the parties. It is apparent, as disclosed by
the agreement attempted to be set up as an accord
and satisfaction and from the cross-examination of
plaintiffs' witness, that there was a controversy on
the question of timely deliveries. The defendant
undoubtedly attempted to return some of the mer-
chandise in question, because it claimed deliveries were
not made within the time specified in the orders given
by it. Whether there were untimely deliveries and
whether those untimely deliveries constituted a mate-
rial breach of the contract of sale, were questions of
fact. However, failure to prove full performance by
plaintiffs was not the ground of the dismissal of their
complaint. The agreement set up in defendant's
answer as a defense to plaintiffs ' cause of action, is not,
as the answer itself makes manifest, an accord and sat-
isfaction, and therefore is not a bar to plaintiffs' cause
of action. It is merely an accord. ** An accord," says
Sir William Blackstone, * * is a satisfaction agreed upon
between the party injuring and the party injured,
which, when performed is a bar to all actions." 3
Black. Comm. 15. ^*An accord executory without per-
formance accepted is no bar; and tender of perform-
ance is insufficient." Kromer v. Heinij 75 N. Y. 574.
In the case at bar the accord was never satisfied, and
thus it is no bar to the plaintiffs' cause of action.
During the trial the court erroneously excluded
evidence offered by plaintiffs. Plaintiffs' agent testi-
fied that as a result of certain previous conversations,
the defendant's treasurer gave him written orders for
Digiti
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Klingenbeck v. Young. 121
Misc.] Appellate Term, First Department, January, 1921.
the merchandise in question. The orders stated fully
the style of goods to be manufactured, the price and
a time within which deliveries were to be made, and
also the terms of payment. There was no written
acceptance of the orders by plaintiffs. The witness
was asked by plaintiffs ' counsel whether anything was
said by him to the defendant's officer who had handed
him the order, with reference to the time of delivery
provided for in the said order. The question was
objected to by defendant's counsel as were other ques-
tions along the same line, upon the ground that oral
evidence was being offered to vary a written instru-
ment, and the court sustained the objection and
excluded the testimony. Since there was no written
evidence of acceptance by the plaintiffs of the order,
oral proof was permissible to show upon what changed
terms, if any, the plaintiffs accepted. We allude to
this error since there must be a new trial of the action.
Guy and Lehman, J J., concur.
Judgment reversed and new trial granted, with
costs to appellant to abide event.
Elbonore K. Klingenbeck and Another, Landlords,
Appellants, v. Edward Warren Young, Tenant,
Respondent.
(Snpreme Court, Appellate Term, First Department, Deeember,
1920, Term — filed January, 1921.)
Lanoiora And tenant — anmmary proceedings — objectionable ten-
ant — when diatniwial of petition is error — no appeal nnless
a final order is entered.
Upon the trial of a summary proceeding instituted October
6, 1920, against a holdover tenant of an apa ment, alleged to
be objectionable, the landlord produced as witnesses several
Digiti
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122 KlilNGENBBCK V. YoUNG.
Appellate Term, First Department, January, 1921. [Vol. 114.
oecupantB of apartments in the same and adjoining house, who
testified to conduct on the part of defendant sufficient to sus-
tain the specifications in the petition of the alleged objection
able nature of his occupancy, but none of them could testify,
as alleged in the petition, that any refuse was thrown from
the windows of the tenant's apartment or that any piano
therein was unreasonably used after June, 1920. Held, that
the dismissal of the petition upon the ground that under the
statute (Laws of 1920, chap. 942) the proceeding could be
maintained only if the tenant was doing objectionable things
at the time the proceeding was instituted, was error, for the
reason that the trial judge had no right to take the case from
the jury because of the absence of evidence that the objection-
able acts had continued over the summer.
Where no final order has been entered in a summary pro-
ceeding, an appeal from a dismissal of the landlord's petition
must be dismissed.
Appeal from a judgment of the Municipal Court of
the city of New York, borough of Manhattan, seventh
district, dismissing the petition of the landlords to
recover possession of a certain apartment.
Brussel & Beebe (E. Walter Beebe, of counsel), for
appellant.
Edwards, O'Loughlin & George (David G. George,
of counsel), for respondent.
Per Curiam. On the 6th day of October, 1920, the
landlords brought a summary proceeding against the
tenant, alleging that the tenant holds over and occupies
premises after the expiration of his term, and that the
tenant so holding over is objectionable, that he has
caused and permitted to be thrown from the window
of his apartment during his occupancy dirt and refuse
taken from the said apartment, and that in addition
the tenant has caused or permitted the use of a
piano in such a way ** by long hours of continuous
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Klixgexbeck v. Young. 123
Misc.] Appellate Term, First Department, January, 1921.
drumming and playing to annoy and become a nuisance
to the other tenants occupying other parts of the build-
ing in which the demised premises are located." At
the trial the landlords produced as witnesses several
occupants of apartments in the same and the adjoin-
ing house who testified to conduct on the part of the
defendant sufficient to sustain the specifications in the
petition of the alleged objectionable nature of the
tenant's occupancy, but none of the witnesses could
testify that any refuse was thrown from the windows
of tenant's apartment or that any piano in that apart-
ment was unreasonably used after the month of June,
1920. The trial judge thereupon dismissed the land-
lords'petition, stating that under chapter 942 of the
Laws of 1920 the landlord can maintain sununary pro-
ceedings against a tenant who is holding over only
" if this tenant is doing things that are objectionable
at the time of the commencement of the proceedings."
We have no doubt that the interpretation of the
statute of the trial justice is too narrow. The statute
requires the landlord to establish *^ that the person
holding over is objectionable," but that fact may
naturally be established by evidence of conduct at
some previous time. Subsequent discontinuance of
the objectionable acts and remoteness of the time
when they were performed are undoubtedly factors
to be considered by the jury in regard to the weight
to be given to the testimony, but the trial judge had
no right to withdraw the case from the jury merely
because there was no evidence that the objectionable
acts had continued over the summer.
The record shows that the trial judge granted the
tenant's motion to dismiss the petition, but no appeal
lies from a dismissal of the petition until a final order
has been entered thereon. The record in this case does
not show that any final order was ever entered. The
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124 People ex bel. Buffalo Consistory v. Betz.
Supreme Court, January, 1921. [Vo\ 114.
paper in the record denominated ** judgment or
verdict ^' has none of the characteristics of a final
order or judgment, and must be regarded as a mere
nullity. The appeal must, therefore, be dismissed
without costs to either party.
Present : Guy, Lehman and Wagner, J J,
Appeal dismissed, without costs to either party.
People ex rel. Buffalo Consistory, etc., Relator, v.
John C. Betz et al.. Assessors, etc.. Respondents.
(Supreme Court, Erie Special Term, January, 1921.)
Tax Law, § 4(7) — real estate of fraternal corporation, if leased,
not exempt from taxation. .
Power to lease given by the by-laws of a fraternal corpora-
tion is not equivalent to a declared purpose to lease set forth
in its incorporation papers, and where such a corporation,
having leased its real estate to other fraternal bodies at an
annual rental, fails to establish that it was created for that
purpose, the real estate is not exempt from taxation under
section 4(7) of the Tax Law.
Motion to confirm report of referee in certiorari
proceedings to obtain exemption from taxation of
relator's real estate.
George J. Feldman, for motion.
George L. Pomeroy, opposed.
Brown, J. The relator seeks exemption from taxa-
tion of the southerly parcel of its real estate, upon
the ground that it is a fraternal corporation created
to maintain its cathedral building for its meetings
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People ex rel. Buffalo Consistory v. Betz. 125
Misc.] Supreme Court, January, 1921.
and for the accommodation of other fraternal bodies
or associations, the entire net income of whicli is
exclusively applied or to be used to maintain the
Masonic Home at Utica, under the provisions of sec-
tion 4, subdivision 7, of the Tax Law. The cathedral
building is used by the relator for two purposes : For
its meetings and- for the meetings of other associa-
tions. For the occupation of this building by the other
associations an annual rental is charged. The pur-
pose of the use of this real estate by the relator for
its meetings seems to be established and declared in
the certificate of the incorporation of the relator in
1902. In 1905 the relator surrendered its charter of
1902 and elected to become incorporated under the
provisions of the Benevolent Orders Law. NotTiing
seems to have been done to carry such election into
execution, save to file such election with the secretary
of state. It is very doubtful whether there can be
found in the record submitted a stated purpose set
forth in the relator ^s incorporation papers that the
cathedral is maintained for its meetings. Assuming,
however, that such purpose existed, it is believed that
it can not be established from the record that the use
of relator's property by other associations is based
upon an existing, stated purpose set forth in its incor-
poration charter. It seems to be the law that if the
relator's real estate be rented to other associations,
the purpose of such leasing must be set forth in the
relator's charter, or exemption will be denied it.
People ex rel. Mizpah Lodge v. Burke, 228 N. Y. 245.
In July, 1915, the relator's by-laws were adopted
providing that its real estate *' shall not be rented or
let to any person, corporation, association or body,
except to other fraternal corporations, associations
or bodies." This by-law is permissive only. Under
it the relator's trustees have undoubted power to lease
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126 People ex rbl. Buffalo Consistoby v. Betz.
Supreme Court, January, 1921. [Vol. 114.
relator ^8 real estate to other fraternal bodies. They
have that power under the Benevolent Orders Law.
Power to lease is not equivalent to a declared purpose
to lease, made evident at relator's creation. People
ex rel. Mizpah Lodge v. Burke, supra. The quoted by-
law is not a statement that the relator's real estate is
maintained for the accommodation of other fraternal
bodies. The plain reading of the by-law is to the
effect that if the real estate be rented it shall be
rented only to other fraternal bodies. Does the grant-
ing of the restricted power to lease only to other fra-
ternal bodies comply with the statutory requirement
that the relator must have been created to maintain
its building for the accommodation of other fraternal
bodies, if it leases to others! In view of the strict <
interpretation by the Court of Appeals in People ex
rel. Mizpah Lodge v. Burke, supra, of the statute under
consideration, the holding must be that the relator has
not established that it was created for the purpose of
leasing its real estate. In that case it was held that
the creation of the fraternal association for the pur-
pose of affording accommodation to other fraternal
bodies could not be inferred from the existence of
power to lease its real estate for the accommodation
of other fraternal bodies. The relator, having leased
its real estate and not having established that it was
created for that purpose, is not entitled to the benefit
of the statute. Motion to confirm will be granted.
Motion granted.
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National Pabk Bank v. Old Colony Trust Co. 127
Miae.] Supreme Court, January, 1921.
National Park Bank of New York, Plaintiff, v. Old
Colony Trust Company, Defendant.
(Supreme Court, New York Special Term, January, 1921.)
Banks and banking — negotiable instnunents — when temporary
injunction granted by court of sister state has no extra-terri-
torial eifect.
Defendant, a Massachusetts corporation, by a letter of credit
issued by it agreed with the drawers and indorsers and bona
fide holders of drafts drawn thereunder and in compliance
therewith that such drafts would be duly honored upon due
presentment if accompanied by the documents mentioned in the
letter of credit. In an action upon a draft drawn under the
letter of credit and delivered to plaintiff, a resident of the
State of New York, for a valuable consideration, it was uncon-
troverted that no part of plaintiff's duties in reapect of any
contractual relation arising from an assignment of the credit,
assented to by defendant in writing, and negotiations of the
draft, remained unperformed. Held, that an injunction pen-
dente lite purporting to have been granted by the Superior
Court of Massachusetts, restraining defendant from making
payment under the credit had no extra-territorial force or
effect in the courts of the* State of New York, and was no
defense to the action, it appearing affirmatively from the
answer of defendant, that the plaintiff herein was not a party
to that action, and plaintiff'?; motion for judgment on the
pleadings, will be granted.
The defense sought to be established gave no ground under
the true rule of judicial comity warranting recognition in our
courts, since the result would be to utterly defeat the acknowl-
edged rights of the plaintiff and deny it its day in court, and
be entirely contrary to the judicial decisions in this state, that
a letter of credit is a complete and independent contract.
Motion for judgment on the pleadings.
Louis F. Doyle, for plaintiff.
Breed, Abbott & Morgan (Eugene W. Leake, of
counsel)^ for defendant.
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128 National Pakk Bank v. Old Colony Trust Co.
Supreme Court, January, 1921. [Vol. 114.
McAvoY, J. The plaintiflF is a domestic banking
corporation organized under the laws of the United
States, and has its principal place of business in New
York county, state of New York, and the defendant is
a Massachusetts corporation having its principal place
of business in Boston, commonwealth of Massachusetts.
In May the defendant issued a letter of credit to one
Eugen Boissevain & Co., Inc., of New York, whereby
it authorized Boissevain & Co. to draw a sight draft
not exceeding the aggregate amount of $221,200 on
the National Bank of Commerce, New York, covering
shipments of sugar. The defendant agreed in the
letter of credit ** with the drawers and indorsers and
bona fide holders of draft drawn under and in compli-
ance with this letter of credit that the same shall be
duly honored upon presentation at the ofl&ce of
National Bank of Commerce, in New York City, if
accompanied by the documents that were therein men-
tioned.^^ Subsequently, the defendant assented in
writing to the assignment of this credit to the plain-
tiff, the National Park Bank. In October, 1920, a
draft was drawn by Boissevain & Co. under this credit
of $220,442.19 on the National Bank of Commerce, New
York, payable to the plaintiff, and this draft was
delivered to the plaintiff for a valuable consideration,
plaintiff having all of the essentials of a ho^ta fide
holder of a draft as a negotiable instrument. The
draft conformed fully with the letter of credit, had
attached all of the documents required by the letter
of credit, and the documents fully conformed with the
provisions of the credit. The plaintiff, in parting with
the considerations which it had paid for the draft,
acted in reliance on defendant's promise contained in
the letter of credit. When the draft and documents
were presented to the National Bank of Commerce,
all due forms being observed, on October 27, 1920, and
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National Pabk Bank v. Old Colony Tbust Co. 129
Misc.] Supreme Court, January, 1921.
later when presented to the defendant itself, the Old
Colony Trust Company, of Boston, on October twenty-
ninth last, the draft was not paid. It is uncontroverted
that no part of the plaintiff's duties in respect of any
of the contractual relations, which arise from the
assignment of the credit and negotiations of the draft,
remain unperformed. The alleged complete defense
to the action is an injunction purporting to have been
issued by the Superior Court of Massachusetts
restraining the defendant from making payment under
the credit. The precise language of the injunction of
the Massachusetts court is that this defendant (Old
Colony Trust Company) is enjoined and restrained
** from accepting or otherwise recognizing the validity
of any draft drawn under or pursuant to said letter of
credit dated May 15, 1920, by Eugen Boissevain & Co.,
Inc., or by any other person, firm or corporation what-
soever, as assignee or holder thereof." This state of
the pleadings gives plaintiff the right to judgment for
the amount of the defaulted draft, unless the plea of
the continuance in force of this injunction is a com-
plete defense to plaintiff's action. There is no doubt
that the injunction, of itself, as a mandate of a for-
eign court has no force or effect extraterritorially in
the courts of this state under the full faith and credit
clause of the Federal Constitution. It appear® aflSrma-
tively from the answer that this plaintiff was not a
party to the action in Massachusetts, and that the sole
parties were one E. B. Sherburne & Company, plain-
tiff, the Old Colony Trust Company and Eugen Bois-
sevain & Co., Inc., defendants. Even where effect is
given to judgments and decrees of the courts of sister
states, it is a basic principle that the court which gave
the judgment or decree must have jurisdiction of the
parties upon whose rights it is adjudicating or pre-
tending to adjudge. The Massachusetts court never
9
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130 National Pabk Bank v. Old Colony Trust Co.
Supreme Courts January, 1921. [Vol. 114.
obtained or had jurisdiction of either the plaintiff's
person or its property, and had no power to adjudicate
in respect to its rights under the draft and assign-
ment of credit herein so as to bind the plaintiff by its
adjudication. Pennoyer v. Neff, 95 U. S. 714; Had-
dock V. Haddock, 201 id. 562. The F«d«ral Constitu-
tion's provision that full faith and credit shall be
given in each state to judicial proceedings of other
states is not a ground upon which the courts in which
the judgment of the sister state may be presented may
be precluded from inquiring into the jurisdiction of
the court which renders the judgment over the sub-
ject matter of the suit or the parties affected by it, or
into the facts necessary to give the original court ju-
risdiction. Pennoyer v. Neff, supra. Defendant recog-
nizes that lack of jurisdiction of the Massachusetts
court over the plaintiff here must inhibit a claim that
the Massachusetts injunction should be recognized in
New York on account of the full faith and credit clause
of the National Constitution, and in addition is aware
that since the injunction is a temporary one and may
not be made final until after the trial in Massachusetts
it is not such a judgment as would, in any event, be
recognized by the courts of this state, because it is not
a definitive judgment on the merits. The rule is of
common knowledge tliat the definitive judgment of a
court of another state between the same parties on
the same cause of action on the merits of the case is
conclusive, but it must be a definitive judgment on the
merits only. Where the judgment is merely interlocu-
tory the determination of the question by the court
which rendered it did not settle and adjudge finally
the rights of the parties. It is based upon a special
application pending the suit which by our practice
might, on leave had, be renewed on new state of facts
presented. Walsh v. Durkin, 12 Johns. 99. It seems
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National Pabk Bakk v. Oli» Colony Tbust Co. 131
Misc. J Supreme Court, tTanuary, 1921.
to be anomalous to give a decision upon an interlocu-
tory motion or application in another state as full a
degree of faith and credit, or to regard the same as
possessing equal dignity of conclusiveness, as would
be given to a final adjudication between the parties
over all of whom the court had full jurisdiction in a
decision of the main controversy between them in this
state. The principle that the courts of one state or
jurisdiction will give effect to the laws and judicial
decisions of another, not as a matter of obligation, but
out of deference and respect, conunonly called judicial
comity, is not transgressed by ruling adversely to the
claim liere made. The rule of comity is based on the
theory that a court which first asserted jurisdiction
will not be interfered with in the continuance of its
assertion by another court of foreign jurisdiction until
it is convenient and desirable that the one give way
to the other. Mast, Foos d Co. v. Stover, 177 U. S. 485.
Comity is not a rule of law, but one of practice, con-
venience and expediency. It is something more than
mere courtesy, and implies only deference to the opin-
ions of others, since it is of substantial value in secur-
ing uniformity of decision and discouraging repeated
litigation of the same question. Its obligation, how-
ever, is not imperative. If this were so, the indiscreet
action of one court might become a precedent made
more weighty by each successive adjudication, until the
whole country was tied down to an unsound principle.
Comity persuades, but it does not command. It
demands that no one should abdicate his individual
judgment, but only that deference shall be paid to the
judgment of other coordinate tribunals (words taken
from the text case, supra). The defense here sought
to be established, as appears from the pica respecting
the action of the Massachusetts court, gives no ground
under the true rule of comity warranting recognition
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132 National Park Bank v. Old Colony Tbust Co.
Supreme Court, January, 1921. [Vol. 114.
in our courts, since the result will be to utterly defeat
the acknowledged rights of the plaintiff, a resident of
this state, and deny the plaintiff its day in court, and
be entirely contrary to rulings in this state holding
that a letter of credit is a complete and independent
contract. Frey <& Son, Inc., v. Sherburne Co., 193 App.
Div, 849. Nothing is shown which would indicate any
privity of contract between the plaintiff here and the
Sherburne Company, which is plaintiff in the Massa-
chusetts action, and no indication is given of any valid
ground upon which the defendant may be restrained at
the instance of the Sherburne Company from paying
its obligation to the plaintiff. Whatever rights^ Sher-
burne & Company may have in the premises must be
founded upon the contract made for the sugar, or
under some other contract, for there was nowhere in
the letter of credit any indication that they are con-
cerned with that document. No prejudice accrues to
them if the defendant pays under the letter of credit.
They have a complete and adequate remedy at law to
recover damages sustained by any breach of the con-
tract of sale, and against the bank which issued the
letter of credit for violation of any requirement of
the credit. Frey <& Son, Inc., v. Sherburne Co., supra.
Motion for judgment on the pleadings is granted.
Motion granted.
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People v. Bbtant Co. 133
Misc.] Supreme Court, January, 1921.
The People of the State of New York, Plaintiff, v.
Alexander Bryant Co., Milton Schnaier, Milton
ScHNAiER. Contracting Corporation, Morris Jargho,
Jacob Jarcho and Jabcho Brothers, Inc., Defend-
ants.
(Supreme Court, Extraordinary Trial Term, January, 1921.)
General Business Law, §§ 341, 846 — witnesses testifying before
legislative committee not entitled to immimity from prosecn-
tion under said statute.
The '^Lockwood committee" is not a "court, magistrate or
referee" within the meaning of section 345 of the General
Business Law.
Where because of testimony given by them as witnesses
before the joint committee of the senate and assembly (Lock-
wood committee), as to their dealings with each other and
with others, defendants were charged by indictment with a
violation of section 341 of the General Business Law, they
are not entitled to the immunity from prosecution granted by
section 345 of said statute.
Motion to dismiss indictment.
Charles L. Newton, Attorney-General (Deputy
Attorney-General Kenneth M. Spence, of counsel), for
People.
Milton Mayer, for defendants.
McAvoY, J. The defendants are charged with the
violation of section 341 of the Business Law of the
state of New York, which is known as the Donnelly
Law. Defendants Schnaier and Jarcho were sub-
poenaed as witnesses in October last to testify in a
proceeding and investigation held by the joint com-
mittee of the senate and assembly, known as the Lock-
wood committee. They gave certain testimony as to
their dealings with each other and with others and
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134 People v. Bryant Co.
Supreme Court, January, 1921. [Vol. 114.
claim that because of the testimony so given they are
entitled to immunity from prosecution under the said
Donnelly Act. The provision of section 345 of the
Business Law, which constitutes the so-called immu-
nity provision, is: *' Section 345. No person excused
from answering. No person shall be excused from
attending and testifying, or from producing any books,
papers or other documents before any court, magis-
trate or referee, upon any investigation, proceeding
or trial, pursuant to or for the violation of any of the
provisions of this article, upon the ground or for the
reason that the testimony or evidence, documentary
or otherwise, required of him may tend to convict him
of a crime or subject him to a penalty or forfeiture;
but no person shall be prosecuted or subjected to any
penalty or forfeiture, for or on account of any trans-
action, matter or thing, concerning which he may so
testify, or produce evidence, documentary or other-
w^isc. And no testimony so given or produced shall be
received against him upon any criminal investigation,
proceeding or trial.'' It does not seem to me that any
sound argument can be made for a ruling that the so-
called Lockwood committee is included in the language
of section 345 of the Penal Law referring to '*any
court, magistrate or referee. ' ' The authority on which
reliance of defendants is based is People v. Sharp,
107 N. Y. 427. The defendant in that criminal action
had appeared before a legislative committee in obedi-
ence to a subpoena and had testified as a witness in the
investigation or proceeding conducted by said legis-
lative committee to investigate the alleged crime of
bribery. The section then covering testimony with
respect to bribery was the present section 38 of the
Penal Law, then known as section 79 of the Penal Code.
It provided that a person offending against any pro-
vision of the Code relating to bribery is a competent
witness against another person so offending and may
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People v. Bryant Co. 135
Misc.] Supreme Court, January, 1921.
be compelled to attend and testify upon any trial,
hearing, proceeding or investigation in the same man-
ner as any other person, and that a person so testify-
ing should not thereafter be liable to indictment, prose-
cution or punishment for said bribery. Sharp con-
tended that the meaning and spirit of this statute was
that the disclosures made by him before the senate corn-
mitten were privileged and could not be used against
him on his trial, the People claiming that section 79 of
the Penal Code did not embrace an investigation by a
senate committee, but was limited to such testimony
only as might be given upon a trial, hearing, proceed-
ing or investigation in the course of a criminal action ;
that it had no application to such testimony as might
be given in the course of legislative proceedings or
investigations. This claim of the People was over-
ruled by the court, and it was held that the use of the
words ** upon any investigation'' referred to an
inquiry which the legislature had the right to make,
and which, in view of the recitals in the resolution
creating it, it was its duty to make, in order that the
abuses which were disclosed might be cured by further
action by the legislature or by the People. The court
pointed out that full effect was to be given to the force
and validity of every word, so that no part of the
section would be annulled or rendered nugatory, and
with that mode of construction it cannot be doubted
that Sharp's case was brought literally within the
language of the section 79 of the then Penal Code.
Sharp was a person offending against one of the
specific provisions of the Code in relation to bribery.
He was accused and had been convicted of giving a
bribe. He was qualified under the section as a com-
petent witness. He was testifying against another
person so offending against one of the provisions of
the Code relating to bribery. He was a witness before
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136 Pbopj^ v. Bbyant Co.
Supreme Court, January, 1921. [Vol. 114,
the committee in relation to bribery. He was a wit-
ness against another person or body specifically
acct»ed in the reeolution of the senate. He was com-
pelled to attend and testify against another person or
other party to the transaction. The testimony was
given upon an investigation duly authorized, and
applying the natural meaning of the words to the cir-
cumstances of that case there was no incongruity nor
inconsistency in adapting them to the facts then
appearing. The General Business Law, section 345
(Donnelly Act), does not include any term, idea, word
or concept or permit an inference from any of such
comparable to the words used in the bribery section
(former Penal Code, § 79) ** any investigation.''
This latter is a comprehensive and all-including
phrase and doubtless bounds all investigations in the
conduct of which persons might be called by authority
as witnesses to testify under oath concerning any mat-
ter. And it would include, if taken literally, the action
of a legislative conmiittee, according to the direction
given it, and acting with authority to subpoena wit-
nesses and enforce their attendance and examine them
under oath. It did not exclude every sort of hearing
or investigation excepting only a judicial investiga-
tion by a regularly constituted court, and although the
investigation may be only for the collection of
information required for the proper performance by
the legislature of its own functions, it would, never-
theless, be a proceeding requiring witnesses and power
to compel their attendance. A comparison of the stat-
ute under which Sharp was held iomiune and section
345, supra (Donnelly Act), reveals the intent of the
legislature not to include in its provisions any
immunity of persons testifying as witnesses for testi-
mony compelled or voluntarily given before a legis-
lative committee conducting ** any investigation."
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Model Building & Loan Assn. v. Reeves. 137
Misc.] Supreme Court, January, 1921.
The tribunals before which immunity may be secured
for testimony given under that act are ' * any court,
magistrate or referee upon any investigation, pro-
ceeding or trial pursuant to or for a violation of any
of the provisions of this article * * *." Where the
words are without ambiguity and the meaning une-
quivocal construction is not part of the business of a
court. The disparate features of this case and the
Sharp case are outstanding and inescapable. The
attendance of the defendants, who claim immunity
here, before the Lockwood committee as witnesses,
and who now ask a dismissal of the indictment found
against them by motion because of this provision of
law (§ 345) and because of the giving of testimony
involving transactions, matters or things concerning
which they did so testify, did not entitle them to the
immunity granted under the Donnelly Act, and their
motion to annul the action of the grand jury and
dismiss the indictments against them and discharge
them because of such alleged immunity is denied.
Motion denied.
The Model Building and Loan Association of Mott
Haven, by George I. Skinner, as Superintendent
of Banks of the State of New York, Plaintiff, v.
Alfred G. Reeves, Ambrose G. Todd, Harold
Swain, Alexander Rowland and Herbert Reeves,
Defendants.
(Snpreme Court, New York Special Term, January, 192L)
PartnersMp — liability of flrm for fraud of one partner — statnte
of limitetions — Code Giv. Pro. § 382(5).
A firm is liable for the fraud of one partner in the coarse
of the transactions and business of the partnership, even when
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138 Model Building & Loan Assn. v. Reeves.
Supreme Court, January, 1921. [Vol. 114.
the other partners had not the slightest connection with, knowl-
edge of or participation in the fraud.
Where in an action against a firm with which plaintiff had
an account, for the misapplication of plaintiff's money by one
of the partners without the knowledge of the other partners,
no claim is made that the defendants other than the guilty
partner had knowledge of or participated in the fraud, the
statute of limitations prescribed by section 382(5) of the Code
of Civil Procedure does not apply except in so far as it relates
to the claim against the guilty partner; the liability of the
other partners ends with the running of the statute from the
time of the actual wrong.
Action for fraud.
Phillips, Mahoney & Liebel (Jeremiah T. Mahoney
and J. Archer Hodge, of counsel), for plaintiff.
O'Brien, Boardman, Parker & Fox (Herbert C.
Smyth and Edwin W. Cady, of counsel), and Harold
Swain, for defendants.
McAvoY, J. There has been a complete judicial set-
tlement of the doctrine that the partners of a firm are
liable for the frauds committed by either or any of
them in the transaction and prosecution of the partner-
fi^hip enterprise; that the firm is bound for the fraud
committed by one partner in the course of the transac-
tions and business of the partnership, even when the
other partners have not the slightest connection with,
knowledge of or participation in the fraud. Story
Part. 108; Griswold v. Haven, 25 N. Y. 595. The firm
being liable for frauds committed by one of its mem-
bers while acting for the firm and in transacting its
business, the innocent partners cannot divest them-
selves of their responsibility on the ground that they
never authorized the commission of the fraud or par-
ticipated in its fruits. Lindley Part. 150. All the
defendants here were partners and all, with the excep-
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Model Building & Loan Assn. v. Reeves. 139
Misc.] Supreme Courts January, 192L
tion of one, are conceded to have been entirely guilt-
less of any participation in the fraud perpetrated by
the one. But it is impossible for them to escape from
the consequences that legally flow from the relation
they assumed, not even where, as in this instance,
none but the guilty member had any connection with,
knowledge of or participation in the fraud or its
fruits. The defendants are liable because they were
partners at the time of the transactions set forth in
the complaint with the concededly guilty partner,
whereby the plaintiff suffered loss through his fraud.
The real question is, has the plaintiff lost its right
to recover against the defendants for this liability
through a sufficient lapse of time to cover all the trans-
actions within any provision of law preventing the
maintenance of an action through limitation! Sec-
tion 410 of the Code of Civil Procedure prescribes
that: ** Where a right exists, but a demand is neces-
sary to entitle a person to maintain an action, the time,
within which the action must be commenced, must be
computed from the time, when the right to make the
demand is complete; except in one of the following
cases: 1. Where the right grows out of the receipt or
detention of money or property, by an agent, trustee,
attorney, or other person acting in a fiduciary capacity,
the time must be computed from the time, when the
person, having the right to make the demand, has
actual knowledge of the facts, upon which that right
depends.^* There is no question but that this pro-
vision of the Statute of Limitations runs in favor of
agents, trustees and attorneys whenever the obliga-
tion upon them is constructive but not expressed, and
when both the constructive trustees or agents as well
as the other party to the suit were ignorant of the
facts upon which the obligation is sought to be based.
The statute does not run in favor of one who himself
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140 Model Building & Loan Assn. v. Beeves.
Supreme Court, January, 1921. [Vol. 114.
is guilty of fraud and thereby has obtained property
as a constructive trustee. Here there was a misappli-
cation of the plaintiff's money; it was made by a part-
ner of the defendants' firm without their knowledge
or participation either in the fraud or the proceeds.
Their liability as trustees or attorneys results not
from any act of theirs or of the plaintiff's, but from
the application of the doctrine of equity which regards
them as standing in that relation in order to give the
plaintiff a remedy. From that doctrine and principle
of equity, and not from any fraud or knowledge of
fraud or misapplication, a contract liability to make
restoration is implied. The statute runs from the date
of the wrong which raised the implication where a
trustee becomes so by implication or construction. It
is actual fraud against which the statute does not run
until it is discovered. The statute commences to
run against constructive fraud as soon as the act or
omission constituting it occurs. Price v. Mulford,
107 N. Y. 303; Finnegm v. McGuffog, 139 App. Div.
899; affd., 203 N. Y. 342. Under subdivision 5, section
382, of the Code of Civil Procedure '*an action to
procure a judgment, other than for a sum of money
on the ground of fraud in a case which on the 31st
day of December, 1846, was cognizable in the Court
of Chancery, must be commenced within six years, but
the cause of action in such a case is not deemed to
have accrued until the discovery by the plaintiff or
the person under whom he claims of the facts consti-
tuting the fraud." The plaintiff here did not have
any knowledge, actual notice or information as to the
various defalcations and misapplications of funds
belonging to it by the guilty partner defendant prior
to February 1, 1917. If the conceded fraud of the
defendant guilty of the actual misapplications is
imputable as a matter of law to each of the defendants,
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Model Building & Loan Assn. v. Beeves. 141
Misc.] Supreme Court, January, 1921.
this subdivision of section 382 would prevent the run-
ning of the Statute of Limitations until February 1,
1917, and bring all the transactions complained of
within a proper time for the commencement of suit
pursuant to law; but there is no claim that the defend-
ants other than the guilty partner were actively or
expressly instruments in the practice of any fraud in
reference to the peculations and misappropriations
committed against the plaintiff, and it would seem,
therefore, that the provisions of section 382, subdivi-
sion 5, supra, which provide that the cause of action is
not deemed to have accrued until the discovery of the
facts constituting the fraud has no application to the
claim made by the plaintiffs in this case, except in so
far as it relates to their claim against the guilty part-
ner. The partnership entity comprising all the part-
ners who are owners of the partnership property hold-
ing per my et per tout, would if participating in the
fraud, even to the extent of receiving an aliquot share
of the misappropriated funds without knowledge of
their fraudulent source, remain subject to the suspen-
sion of the statute until discovery by the person
defrauded of the facts constituting the fraud to the
full extent of the defalcation. But their liability as
partners in the case of their innocence of actual
wrongdoing when they are charged with knowledge
which they can have only constructively and not
actually and where the firm fund is not enriched at all
by the peculations ends with the running of the stat-
ute from the time of the actual wrong. The action is
concededly one in equity to procure a judgment on
the ground of fraud. Such an action is included
within this section because, although the words
** other than for the sum of money " are contained in
subdivision 5, it includes all cases in which equitable
relief is required, although as part of the ultimate
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Google
142 Owen v. Bodinb.
Supreme Court, January, 1921. [Vol. 114.
relief a money judgment is also demanded. Each item
of the account of which misappropriation is charged
must be considered as of its own date, and in no view
of either of these limiting statutes is any item shown
to have been sued upon within six years of the time
that it accrued against the innocent defendants.
Judgment for defendants.
Carl M. Owen, as Successor Trustee under the Last
Will and Testament of Susan Dyckman, Deceased,
Plaintiff, v. John H. Bodine, Fannie E. Hicks,
Warren E. French, Jr., and Ethel G. H. French,
His Wife, and Stephen E. Ditchett, as Executor of
George W, Ditchett, Deceased, Defendants.
(Supreme Court, New York Special Term, January, 1921.)
Foreclosure — mortgages — default — when deficiency jndgment
may not be entered for taxes and assessments.
Though the defendant in an action to foreclose a mortgage
who made the bond allows a default to be taken against him,
no judgment for deficiency may be entered against him for
taxes and assessments paid by plaintiff after the action was
commenced.
Mutual Life Ins, Co, v. NeweU, 78 Hun, 293, distinguished.
Action of foreclosure.
Frauloff & Robinson (George J. Johnstone, of
counsel), for motion.
Edward S. Clinch, for defendant Fannie E. Hicks
(not opposing).
TiERNEY, J. This is an action of foreclosure. The
plaintiff claims that after the commencement of the
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Owen v. Bodinb. 143
Misc.] Supreme Court, January, 1921.
action he paid taxes and assessments, and he asks to
have the amount added to the amount of the mortgage
debt as set forth in the complaint. One of the defend-
ants made the bond, and a deficiency judgment is
demanded against him. He has been served with a
smnmons and complaint and has allowed a default to
be taken as against him. His default enables the
plaintiff to take judgment against him upon the claim
set forth in the complaint. If that claim is to be
extended by adding other items to it, no default or
admission as to these items is to be assumed from the
default as to the original claim. And yet the plaintiff
insists that a deficiency judgment might be taken
against this defendant for these items for which he
never heard of a claim, on an ex parte affidavit of the
plaintiff and bases his claim upon the case of Mutu(d
Life Ins. Co. v. Newell, 78 Hun, 293. In that case the
judgment was modified to accord with a situation that
arose after the entry of judgment; the parties were
all before the court, and the application was not
granted on an ex parte affidavit, but proof was taken
by the court. At least that appears from the report
of the case. Certainly the courts that decided that
case would not have sanctioned or approved the prac-
tice asked for by the plaintiff. The motion for a
reargument is therefore granted, and ui)on such
reargument the application is again denied.
Ordered accordingly.
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144 DODD V. BOENIG.
Supreme Court, January, 1921. [Vol. 114.
Anne S. Dodd, Plaintiff, v. Robekt W. Bobnig,
Defendant.
(Supreme Court, Nassau Special Term, January, 1921.)
Title ~ action to quiet — tax deed — real property — Tax Law,
§§ 132, 134.
In an action to quiet title brought by the owner in possession
of certain real property against the purchaser at a tax sale
who never was in possession, to set aside and cancel the tax
deed given to defendant by the county treasurer, it appeared
that through a clerical error in the tax office a double assess-
ment was levied against the property, one running against the
owner, which was paid, and one against an unidentified person.
Held, that the recording of the tax deed without proof of serv-
ice of the notice required by section 134 of the Tax Law, which
the purchaser at the tax sale did not give, was void, and that
plaintiff was not barred by section 132 of the Tax Law from
asserting her right to have the tax deed canceled.
Action to quiet title.
Philip Huntington, for plaintiff.
Edwin D. Kenyon, for defendant.
Squiebs, J. This is an action brought by the owner
in possession of certain property situated in the
village of Sea Cliff, town of Oyster Bay, county of
Nassau, against the purchaser at a tax sale to set
aside and cancel a tax deed given by the treasurer of
Nassau county to the defendant.
On the 9th day of October, 1906, the property in
question was conveyed to the plaintiff by the Salva-
tion Army. The property covered by said deed, con-
sisting of lots 407, 408, 409, 448, 449, 1687, house and
lots 450 and 451, was assessed for the year 1907
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DODD V. BOENIG. 145
Misc.] Supreme Courts January, 1921.
against M. M. Dodd (who was presumably the hus-
band of the plaintiff), and the tax levied upon such
assessment was paid on July 24, 1908. It appears
from the tax records offered in evidence on the trial
that lot 451 for the year 1907 was also assessed against
one Miss Stanley.
The property covered by the aforesaid deed to the
plaintiff was also assessed for the year 1910 and the
tax based on said assessment was paid. For that year
also an assessment was levied against lot 451 in the
name of Miss Stanley and such tax does not appear
from the records to have been paid. For the year
1911 an assessment was levied against the property
covered by the deed running against M. M. Dodd,
which tax was paid on March 9, 1912. A similar tax
was levied against M. M. Dodd for the year 1912
affecting said property, which was paid on March 4,
1913. Again lot 451 was assessed for the year 1913
running against Miss Stanley. Subsequently, as
shown by the sales blotter of the town of Oyster Bay,
offered in evidence on the trial, lot 451 was sold for
unpaid taxes assessed against Miss Stanley, the
amount of the tax being one dollar and eighty-five
cents, and was purchased by the defendant for the
sum of three dollars and forty cents. Subsequently
there was delivered to the defendant, the purchaser on
said tax sale, a tax deed dated December 20, 1910, and
executed by the treasurer of Nassau county, purport-
ing to convey lot 451, being one of the lots covered
by the deed to the plaintiff heretofore referred to. At
a later date lot 451 was sold for the taxes for the years
1910, 1911, 1912 and was purchased at the sale by the
defendant herein on the 24th day of December, 1915,
for the sum of ten dollars and eighty-eight cents. The
defendant recorded his first tax deed, and it is appar-
ent that this is the deed upon which he relies to defeat
10
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146 DODD V. BOBNIG.
Supreme Court, January, 1921. [Vol. 114.
the plaintiff's action. After the purchase of the prop-
erty by the plaintiff in 1906, she caused to be erected
upon lots 450 and 451 during the winter 1906 and 1907,
a dwelling house, which ever since has been and stiU
is on the lots in question. In the month of December,
1910, the house and lots in question were rented by
the plaintiff to one Franklin B. Myrick, who entered
into occupancy on the 29th day of April, 1910, and
remained in occupancy as tenant continuously for a
period of six years. It is clear from the evidence that
through a clerical error in the tax office of Nassau
county a duplicate double assessment was levied
against lot 451, one running against the owner and
one running against Miss Stanley, who is not identi-
fied by the evidence adduced at the trial.
In spite of the able, exhaustive brief presented by
the attorney for the defendant, it is unthinkable that
an owner of property should be ousted from his
ownership through an error made by a clerk in the
tax office. The assessment attempted to be levied
against the property in the name of Miss Stanley was
absolutely void, and, therefore, the lax sale and all
proceedings prior thereto and subsequently, were void
ab initio. The tax which was properly levied against
the owner was paid. The case of Wallace v. Inter-
national Paper Co., 53 App. Div. 41, holds that
section 132 of the Tax Law refers to authorized sales
and touching deeds given in pursuance thereof (at
p. 43) : ** Such authorized deeds are made conclusive
evidence of title after the lapse of a given time; but
no unauthorized deed based upon an unauthorized
sale, a sale where there were no unpaid taxes to war-
rant it, was intended to be covered by this section of
the Tax Law. ♦ • • Section 132 reads, ^ every such
conveyance,' etc. That is, conveyance on a sale for
unpaid taxes.*'
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Doi»D V. BOENIG. 147
Misc.] Supreme Court, January, 1921.
**A sale for two taxes when one has, in fact, been
paid invalidates the sale/* Loomis v. Semper, 38
Misc. Eep. 570.
In Wallace v. McEchron, 176 N. Y. 424, the Conrt
of Appeals construed and interpreted section 132 of
the Tax Law. This was an action in partition affect-
ing certain unimproved lands in Hamilton county.
One of the defendants claimed an interest in the prop-
erty in question by virtue of a tax deed from the
comptroller of the state of New York bearing date
December 29, 1886, and subsequently recorded. The
trial court found among other facts that in November,
1886, the owner applied to the comptroller of the state
for a statement of the unpaid taxes upon the property,
and the comptroller rendered such statement to the
owner who paid the taxes. Such statement did not
contain a statement of a road tax for which tax the
property was subsequently sold by the comptroller.
The holder of the tax title, as here, contended that the
failure of the plaintiffs to bring any action within the
period of time limited by section 132 of the Tax Law
barred and divested all the plaintiffs* rights. At page
427 the court said:
** It has been decided by this court that where the
default of the taxpayer is caused by the failure of the
public officer or his clerks to render a proper state-
ment of the unpaid taxes, a sale made for unpaid taxes
omitted from the statement cannot divest the owner
of his title. * * *
**The sale of the lands to Curtis and Baker was,
therefore, void as against the plaintiffs, and we are
thus brought to a consideration of the effect of the
record of the comptroller's deed under section 132 of
the Tax Law. • • •
** Such statutes have been viewed by this court both
as curative acts and as statutes of limitations. It is
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148 DODD V. BOENIG.
Supreme Court, January, 1921. [Vol. 114.
to be observed, however, that none of them has been
enacted in the ordinary form either of a curative act
or of a statute of limitations. In terms they provide
that after a certain lapse of time and in certain con-
tingencies a comptroller's deed shall be conclusive evi-
dence of certain facts. It, therefore, becomes neces-
sary when any case involving the construction and
effect of one of these statutes is presented to closely
scrutinize and carefully analyze the statute to see
whether as to such case the statute applies, and if
applicable, wliether its operation is that of a curative
act or of a statute of limitations.'*
At page 429: ** Where the proceedings are so fatally
defective that no title passes, it cannot by a curative
act transfer the title of one person to another."
A fair interpretation of the law as laid down in this
case would apply equally if the act is applied as a
statute of limitation. The instant case is distinguish-
able from the case of Doud v. Huntington Hebrew
Congregation, 178 App. Div. 748. In that case the
purchaser at the tax sale was in possession. In the
instant case the purchaser at the tax sale was never
in possession. Mr. Justice Blackmar, writing the
opinion, said at page 749 :
** No legislative fiat can validate the sale of the
land of Emma Baker to satisfy the debt of Eunice
Baker. {People ex rel. Boenig v. Hegeman, 220 N. Y.
118.)
'*But although no act of the Legislature can val-
idate the sale, it is competent for the Legislature to
pass a statute limiting the time within which plaintiff
may maintain an action attacking such sale. * Such
a statute will bar any right, however high the source
from which it may be deduced, provided that a reason-
able time is given a party to enforce his right.*
{Meigs v. Roberts, 162 N. Y. 371, 378. See, also.
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DODD V. BOBNIG, 149
Misc.] Supreme Court, January, 1921.
Peterson v. Martina, 210 id. 412; Bryan v. McGurk,
200 id. 332; People v. Ladew, 189 id. 355.) ''
A tax sale contemplates a valid and not a void assess-
ment on which the tax in question is based. The case
cited was a case of a duplication of the assessment
and tax.
Bryan v. McOurk, 200 N. Y. 332, is distinguishable
from the instant case as that was a case of unoccupied,
wild land, whereas the case under consideration is
occupied land. Quoting from the opinion of Justice
Blackmar, supra, that: ** Such a statute will bar any
right * * * provide.d that a reasonable time is
given a party to enforce his right," — this is exactly
what was not done in the case now under considera-
tion. Section 134 of the Tax Law provides for a notice
to occupants and prescribes definitely the manner of
service of the notice, and the concluding sentence
thereof provides, ** No conveyance made in com-
pliance of this section shall be recorded until the
expiration of the time mentioned in such notice, and
the evidence of the service of such notice shall be
recorded with such conveyance.'*
It is clear from the reading of this section with sec-
tion 132 that the mere recording of the deed where the
property is occupied is not notice either actual or
constructive to the occupant. The court finds as a
matter of fact in the instant case that the property in
question was occupied continuously within the mean-
ing of that term, and that no notice such as is required
by section 134 was served upon the occupant. There-
fore, section 132 of the Tax Law, which the defendant
relies upon as a statute of limitations in this action,
does not operate as a statute of limitations in view of
the fact that the occupant never had the notice pro-
vided for in section 134, and, therefore, the plaintiff
is not barred from asserting her right in this action
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150 DODD V. BOENIG.
Supreme Court, January, 1921. [Vol. 114.
to cancel the tax deed. The recording of the tax deed
without the proof of the service of the notice pro-
vided for in section 134 of the Tax Law is void. See
Matter of Hunter, 189 App. Div. 805, in which Mr.
Justice Jaycox says: ** Owners of occupied lands
cannot be deprived of their title except by strict com-
pliance with this section. Evidence of compliance
therefore is expressly required to be recorded with
the conveyance and without it the record is absolutely
void.'' Ostrander v. Reis, 206 N. Y, 448, 454, 455.
In Clason v. Baldwin, 152 N. Y. 210, the defendant
asserted a title based upon a. lease by the comptroller
of the city of New York upon a sale for unpaid taxes.
The court at page 210 said: ** The proceedings were
purely statutory, and the title of the owner could not
be divested without a strict compliance with all the
provisions of the statute. In such cases every requi-
site of the statute, having the semblance of benefit
to the owner, must be substantially, if not strictly,
complied with."
In the instant case the purchaser did not strictly
comply with the provisions of the statute, in that he
failed to serve the notice required by section 134 of
the Tax Law, and therefore the title which he asserts
must fail.
Under the General Recording Act it has been held
that the recording of a deed is not notice to the owner
in possession who does not claim title through any
party to the deed. See Seely v. Seely, 164 App. Div.
652: **A recorded deed under the Recording Act is
constructive notice to subsequent purchasers and
incumbrancers. It is no notice to the owner in pos-
session who does not claim through any party to the
deed."
** The recording acts, however, do not declare what
effect shall be given to the recording of conveyances,
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Matter of McOwbn. 151
Misc.] Surrogate's Court, Bronx County, January^ 1921.
upon the point of notice. They declare that unless
recorded, they shall be void as against subsequent pur-
chasers in good faith, and for value, whose convey-
ances shall be first recorded. But the courts, by con-
struction, make the record of a conveyance, notice to
the subsequent purchasers ; but this doctrine is subject
to the limitation, that it is notice only, to those claim-
ing under the same grantor, or through one who Is
the common source of title. '^ Tarhell v. West, 86
N. Y. 288.
The defendant cannot, therefore, rely upon the Gen-
eral Recording Act in asserting his title under the tax
deed.
For the reasons stated, judgment is granted plain-
tiff, with costs.
Judgment accordingly.
Matter of the Administration on the Estate of Elijjn
McOwBN, Deceased.
(Surrogate's Court, Bronx County, January, 1921.) *
Executors and administrators — when application for letters of
administration granted — statutes — preference — Oode Oiv.
Pro. §§ 2564, 2565, 2588(2).
A surrogate has no discretion to exclude a person declared
by statute to be entitled to priority of appointment as admin-
istrator, except in cases where his disqualification is declared
by the statute itself.
After the death of a wife intestate, her surviving husband
died leaving a will by which he gave one-third of his estate to
a son, one-third to a daughter, who favored the appointment
of the son as administrator of the mother's estate, one-sixth
to a daughter who favored the appointment of another daugh-
ter who was given one-sixth of the estate for life, with
remainder to the son. The father's will is being contested
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152 Matter of McOwen.
Surrogate's Court, Bronx County, January, 1921. [Vo]. 114.
by the daughter who petitions for letters of administration, and
the daughter who favors such appointment. Held, that facts
alleged against the son, who opposed the appointment of his
sister as administratrix, not being such as are set forth in either
section 2564 or 2665 of the Code of Civil Procedure as consti-
tuting disqualification to receive letters of administration or as
conditions warranting a refusal to grant them to him, his
application therefor will be granted and the application of the
daughter denied, as, though both had an equal right of admin-
istration, under section 2588(2) men must be preferred to
women.
Pboceedings for appointment of an administrator.
Francis X. Kelly, for petitioner.
Edward J. Flynn, Egan & O^Reilly, for respond-
ents.
ScHULZ, S. On an application for letters of admin-
istration upon the estate of the decedent made by one
of her daughters, a son opposes the appointment of
the petitioner and asks that if administration is
granted, letters issue to him. There are two other
daughters of the deceased, one of whom favors the
appointment of the son, and the other that of the peti-
tioner or a trust company. Since the matter was sub-
mitted the son also has applied for his appointment
as administrator and as the same facts are involved
on both applications, I shall consider them together.
The right to the appointment of the administrator
and the order of priority among the next of kin, is
regulated by statute. Code Civ. Pro. § 2588 ; Matter
of D^Agostino, 88 Misc. Rep. 371, 375. There being no
surviving husband, the children of the decedent are
next in order. Code Civ. Pro. § 2588, subd. 2. The
section cited, however, also provides that: *' If several
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Matter of McOwen. 153
Misc.] Surrogate's Court, Bronx County, January, 1921.
■
persons have an equal right to administration, '^ men
must be preferred to women so that it would follow
that the son is entitled to letters in preference to the
petitioning daughter {Matter of Curser, 89 N. Y.
401; Matter of Moron, 5 Misc. Bep. 176), unless the
court upon the facts alleged by the petitioner has
power to deprive him thereof and direct their issuance
to another.
It appears that the husband of the decedent died
after his wife and left a will by which he gave one-
third of his estate to a son, one-third of his estate to
the daughter who favors the son's appointment, one-
sixth to the daughter who favors the petitioner's
appointment, and one-sixth to the petitioner for life
with remainder to the son. It is claimed by the son
that it was understood by the family that the decedent
had no personal or real property, and for that reason
no application was made for administration upon her
estate.
The petitioner urges that it is purposed to bring an
action to set aside an assignment of mortgage for
$7,000, presumed to have been made by the decedent
to her husband on the ground of fraud; that there is
an unrecorded mortgage or assignment of mortgage
for the sum of $6,500 in the name of the decedent
which the son if appointed would not claim as the
property of the estate; that the petitioner has brought
a suit for the partition of real estate claimed to be
owned by the decedent to which all of the children are
parties and in which the son and the daughter who
favors his appointment have appeared and interposed
answers denying all of the material allegations of the
complaint; that it is to the personal interest of the
son and of the daughter referred to, to increase the
estate of their father and to diminish that of the
mother and that such interest of the son would clash
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154 Matter of McOwen.
Surrogate's Court, Bronx County, January, 1921. [Vol. 114.
with his interests as administrator which would be to
increase the estate of the mother. It is apparent that
the son would be personally benefited by an increase
in the father's estate, assuming that the paper pro-
pounded as the father's will is admitted to probate.
The son, on the other hand, contends that if the
daughter is appointed, she will, by a multiplicity of
suits and entirely unnecessary litigation, cause great
expense and injury to the estate.
The father's will is now being contested by the
petitioner and the daughter who favors her appoint-
ment, and will be tried in February next. If it is not
admitted to probate, many of the questions which are
of importance now will no longer be necessary of
solution. I cannot, however, take the responsibility
of refusing letters of administration until that time,
because matters may arise which would make imme-
diate action by an administrator advisable.
Under the circumstances, I would deem it for the
best interests of all concerned that neither the peti-
tioner nor the son be appointed, and that letters issue
to a trust company not connected in any way with
either of them and which would have no interest in
the controversy between them, except to see that the
estate of the decedent was properly administered.
Efforts to obtain the consent of the parties to such
a disposition of the matter having been unsuccessful,
it remains to be considered whether upon the facts
stated, I have jurisdiction to decree it.
Section 2588 of the Code provides that: ''Adminis-
tration in case of intestacy must be granted to the
persons entitled to take or share in the personal prop-
erty, who are competent and will accept the same,"
etc. In section 2564 of the Code are enumerated the
persons incompetent to receive letters of adminis-
tration, etc., and in section 2565 are set forth the con-
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Mattbb of Shui^nbubg. 155
Misc.] Surrogate's Court, Montgomery County, January, 1921.
ditions under which the surrogate may refuse letters.
The facts alleged against the son are not such as are
set forth in either of these sections as constituting
disqualification to receive letters, or as conditions war-
ranting their refusal. If, therefore, I refuse to issue
letters to him, it must be upon the assumption that i
have some discretion in the matter.
It has been consistently held, however, that a surro-
gate has no discretion to exclude a person declared
by the statute to be entitled to a priority, except in
cases where his disqualification is declared by the
statute itself {Coope v. Lowerre, 1 Barb. Ch, 45;
O'Brien v. Neuhert, 3 Dem. 156; Matter of Wilson, 92
Hun, 318; Matter of Campbell, 123 App. Div. 212;
affd., 192 N. Y. 312), and hence I am constrained to
grant the application of the son and deny the appli-
cation of the daughter. Settle decision and decree
on notice at which time I will hear counsel upon the
question of the amount of the bond wnich should be
required.
Decreed accordingly.
Matter of the Estate of John C. Shulenburo,
Deceased.
(Surrogate's Court, Montgomery County, January, 1921.)
Ezemptions — when widow not estopped from claiming her statu-
tory right — husband and wife — dower — Oode Oiv. Pro.
§ 2670.
Where in 1889, about a year after their marriage, the wife
of decedent, who died in 1920, executed a release of her dower
and other rights which she had or might have in and to his
property, and it appears that no children were bom of the
marriage; that since the execution of the contract the parties
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156 Matter of Shulenburg.
Surrogate's Court, Montgomery County, January, 1921. [Vol. 114.
had lived separate and apart, and that the wife had never
demanded or received any support or maintenance from him,
it must be held, under section 2670 of the Code of Civil Pro-
cedure, that he died having a family, and that the wife was
not estopped firom claiming her statutory right to have certain
property set apart to her as widow.
Proceeding under section 2671, Code of Civil Pro-
cedure, to compel executor to set apart property for
the petitioner.
Irving Moyer (Charles D. Thomas, of counsel), for
petitioner.
George C. Butler, for George Shulenburg, executor
of the last will and testament of John C. Shulenburg,
deceased.
SponabliE, S. This is a proceeding instituted by the
petitioner under section 2671 of the Code of Civil
Procedure to compel the executor to set apart prop-
erty for the petitioner as provided by section 2670 of
the Code of Civil Procedure.
The petitioner was the wife and is the surviving
widow of John C. Shulenburg to whom she was mar-
ried at the city of Buffalo, N. Y., on the 21st day of
October, 1888. John C. Shulenburg died at the town
of St. Johnsville, Montgomery county, N. Y., on the
17th day of August, 1920, being at the time of his
death a resident of said Montgomery county and leav-
ing a last will and testament in which George
Shulenburg was named as sole executor, which will
was admitted to probate by this court on the 20th day
of September, 1920, and letters testamentary thereon
were issued to said George Shulenburg who qualified
as such executor and entered upon the discharge of
the duties of his ofl5ce. An appraisal of the property
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Matter of Shulbnburg. 157
Misc.] Surrogate's .Court, Montgomery County, January, 1921.
of said deceased was made by appraisers appointed
by this court and an inventory was thereafter filed,
which inventory shows that deceased left personal
property of the kind and character specified in section
2670 of the Code of Civil Procedure and further shows
that said executor and the said appraisers failed to
set apart in said inventory any property for the peti-
tioner herein.
After the marriage and on November 25, 1889, the
petitioner executed the following instrument:
'* Fulton County, ss.:
'' Know all men by these presents that I, Anna
ShuUenburg wife of John C. ShuUenburg both of the
Town of Stratford, County aforesaid, for and in con-
sideration of the sum $29.50 to me paid by my hus-
band John C. ShuUenburg have granted remised and
released and forever quit-claim and by these presents
do grant, remise and release and forever quit-claim
unto the said John C. ShuUenburg his hers & assigns
forever all the dower and thirds right and title of
dower and thirds and all the other rights, title inter-
est property claim and demand whatsoever in law
and in equity of me the said Anna ShuUenburg of in
and to all the real and personal estate and property
now in possession of the said John C. ShuUenburg
end that which he may hereafter acquire so that
neither I the said Anna ShuUenburg my heirs, execu-
tors administrators nor any other person or persons
for me them or any of them shall have claim chal-
lenge or demand or pretend to have claim challenge
or demand any dower or thirds or any other right
title claim or demand or in or to the said premises
and property but thereof and therefrom shall be
utterly debarred and excluded forever, by these
presents.
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158 Matter of Shulenburo.
Surrogate's Court, Montgomery County, January, 1921. [Vol. 114.
'* In witness whereof the said Anna Shnllenburg
shall hereunder set her hand and seal this 25th day of
November, 1889.
^* Signed, sealed and delivered in presence of
Charles J. Austin. John C. Shullenburg,
**Anna Shulinburg [l. s.]
** State of New York,!
** County of Fulton, J *
** John C. Shulenburg being duly sworn deposes
and says that he is one of the subscribing witnesses
to the deed or conveyance hereto annexed. Tlmt
deponent was present at the time of the execution of
the same and saw Anna Shulenburg sign her name
*^^^®*^- *' John C. Shulenburg.
** Subscribed and sworn to before me this 14 day of
Jan. 1897.
'' Frank E. Gould, Notary Public.
** Eecorded, January 14th, 1897, at 4 h p. m.
C. H. Butler, Clerk.''
((
It appears that there were no children bom of the
marriage of petitioner and testator and that peti-
tioner and testator have not lived or cohabited as
husband and wife but have lived separate and apart
and that petitioner has never demanded or received
from said testator any support or maintenance since
November 25, 1889, the date of the execution of the
said instrument.
. It is contended on the part of the executor that the
petitioner is not entitled to have set apart for her
as the widow of testator any of the property of which
testator died possessed, as provided by section 2670
of the Code of Civil Procedure for the reason that by
petitioner's signing and delivering said instrument,
leaving decedent's bed and board and liviner separate
Digiti
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Matter of Shulenburg. 159
Misc.] Surrogate's Court, Montgomery County, January, 1921.
and apart from him for thirty-one years and making
no claim whatever against him for her support and
maintenance, testator did not die leaving a family
within the meaning of section 2670 of the Code and
that petitioner is estopped from recovering any por-
tion of testator's personal property and have the same
set apart to her under the provisions of said section.
In accordance with the decisions in this state in con-
struing the meaning of section 2670 of the Code based
upon similar facts as those which confront me in this
case, John C. Shulenburg died having a family. Mat-
ter of Shedd, 60 Hun, 367 ; Oberndorf v. Farmers Loan
<Sk Trust Co., 71 Misc. Rep, 64.
The instrument executed by the petitioner Novem-
ber 25, 1889, to her husband, the testator, was an
attempt on her part to release unto the testator, his
heirs and assigns, all her dower and other rights
which she had or might have in and to testator's prop-
erty, in other words, it was a contract between hus-
band and wife. Is it a good and valid contract and
one which might be enforced by either party to itt
At common law no contract made between husband
and wife was enforceable. Hendricks v. Isaacs, 117
N. T. 411.
Only so far as the inability of husband and wife
to contract at common law has been abrogated by
statute can they contract in thia state, therefore, the
legal effect of this instrument must be determined
under and by the provisions of chapter 381 of the
Laws of 1884, which provide :
*' Section 1. A married woman may contract to the
same extent, with like effect and in the same form as
if unmarried, and she and her separate estate shall
be liable thereon, whether such contract relates to her
separate business or estate or otherwise, and in no
case shall a charge upon her separate estate be
necessary.
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160 Matter of Shulenburg.
Surrogate's Court, Montgomery County, January, 1921. [Vol. 114.
** § 2. This act shall not aflfect nor apply to any
contract that shall be made between husband and
wife/^
The purpose of this statute was to secure to mar-
ried women, free from control of her husband, the
earnings and profits of her own business and her own
labor and services carried on and performed on her
own and separate account which at common law would
have belonged to her husband. Suau v. Caffe, 122
N. Y. 30&-320.
This act of the legislature gave to contracts
between husband and wife no force or effect other
than they had at common law and as the contract is
void and of no effect under the law as it existed at
the time the petitioner could not and did not release
to her husband, the testator, or to his heirs or assigns,
any of the claims or rights to his property that she
has under section 2670 of the Code and to the exempt
articles which she seeks by this proceeding to have
set aside to her. Wightman v. SMiefer, 18 N. Y.
Supp. 551 ; Dworsky v. Amdtstein, 29 App. Div. 274 ;
Saratoga County Bank v. Pruyn, 90 N. Y. 250; White
V. Wager, 25 id, 328; Graham v. Van Wyck, 14 Barb.
531 ; Cram v. Cavana, 36 id. 410 ; Townsend v. Town-
send, 2 Sandf. 711; Lawrence v. Lawrence, 32 Misc.
Rep. 503.
The facts in this case are rather unusual, both
parties, no doubt, having entered into this contract
in good faith and believing at the time that the same
was valid and although petitioner and testator have
lived separate and apart for a period of approxi-
mately thirty-one years yet I must conclude and
decide that the petitioner is not estopped from claim-
ing her rights under the statute as widow of the
deceased.
Decreed accordingly.
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Matter of (Jaxda. 161
Misc.] Surrogate's Court, New York County, January, 1921.
Matter of the Estate of Louisa S. Canda, Deceased.
(Surrogate's Court, New York County, January^ 1921.)
Transfer tax — what subject to — domicile — wills — statutes —
• power of appointment over personal property without state —
Tax Law, §§ 220(6), 221(b), 230, 241.
There is no sound reason why estates transmitted by means
of powers of appointment created by will should not be gov-
erned by the same rules which control the devolution of estates
by other methods. (P. 166.)
The right to take property by devise or descent is ;not a
natural right and the sovereign power of the legislature which
confers this privil^e may impose conditions thereon. (P. 163.)
The state of the domicile of a decedent fixes the situs of his
personal property for the purposes of taxation, although such
property is actually without that state. (P. 164.)
A transfer of trust property effected by the exercise by
decedent, who died a resident of this state, of powers of
appointment created by the will of her father and grandf ather,
who were residents of a sister state in which the trust property
is located, and where her will was probated, is subject to a
transfer tax under section 220(6) of the Tax Law. (Pp. 162,
163.)
Where^ however, it appears that decedent by her will exer-
cised the powers of appointment in favor of her trustees, with
life estates to her children, and that the transfer to them is
part of what they would have received under the wills of their
ancestors if the powers had not been exercised, and said chil-
dren elect to take under said wills, their life estates are not
subject to a transfer tax. (P. 164.)
The will of decedent herein provided that in default of the
exercise of new powers of appointment given thereby the
remainder should vest in the issue of her children or in default
of issue in their next of kin under the law of the state in which
the trust property was located. Her executors appealed from
an order assessing the tax, which included as taxable the
transfers effected by the exercise of the powers of appointment,
on the ground that if such transfers were taxable, the
remainders should be suspended from taxation until the deter-
11
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162 Matter of Canda.
Surrogate's Court, New York County, January, 1921. [Vol. 114.
mination of the question whether the donees of the new powen
shnll exercise them. Held, that section 230 of the Tax Law, as
amended in 1911, and section 241 of said statute, require that
the tax upon the remainders shall be presently imposed; if the
new powers are exercised by the children of decedent, no tax
will be due from her estate, and a refund by the state may be
compelled; if, however, the appointment is not made by their
wills, the state will be protected. (Pp. 165, 166.)
Appeal of the executors against a tax under section 221(b)
of the Tax Law, on securities in the trust fund in the sister
state, sustained, but their appeal on the refusal to deduct the
federal inheritance tax denied. (P. 167.)
Appeal from an order assessing the transfer tax.
Cadwalader, Wickersham & Taft (Francis Smyth
and Edgar W. Freeman, of counsel), for executors.
Lafayette B. Gleason (Schuyler C. Carlton, of coun-
sel), for state comptroller.
Foley, S. The executors appeal on several grounds
from the order assessing the transfer tax. The first
ground is that the appraiser has included as taxable
property the transfers effected by the exercise of
powers of appointment of parts of two trust estates.
These powers were created by the wills of the father
and grandfather of decedent, who were residents of
Massachusetts. The decedent, who died April IS,
1919, was a resident of New York. The trust prop-
erty is located in Massachusetts. The trustees are
residents of that state, and the will of decedent was
proved in Massachusetts. It is claimed by the execu-
tors that the statute is unconstitutional in its appli-
cation to these transfers and that this court has no
jurisdiction to assess a tax upon them. The appeal
on this ground is overruled. Section 220, subdivision
6, of the Tax Law^ provides that as a condition of exer-
cising a power of appointment it shall be ** deemed
a transfer taxable under the provisions of this chapter
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Matter of Canda. 163
Misc.] Surrogate's Court, New York County, January, 1921.
in the same manner as though the property to which
such appointment relates belonged absolutely to the
donee of such power and had been bequeathed or
devised by such donee by will." The validity of this
subdivision has been upheld in Matter of Vanderbilt,
50 App. Div. 246; aflfd., 163 N. Y. 597; Matter of
Doics, 167 id. 227; aflfd., mh nom. Orr v. Gilbnan, 183
U. S. 278; Matter of Delauo, 176 N. Y. 486; affd., sub
nom. Chanter v. Kelsey, 2C7) U. S. 466. My distin-
guished predecessor, Surrogate Fowler, in Matter of
Frazier, N. Y. L. J., March 28, 1912, held that where
the original donor was a resident of Pennsylvania and
the power was exercised by the donee, a resident of
the state of New York, the appointment was a trans-
fer taxable under this subdivision. Surrogate
Ketcham of Kings county in Matter of Seaman, N. Y.
L. J., Dec. 5, 1913, held to the same effect. In that
ease the fund over which the power was exercised was
situated in Pennsylvania and was created by the will
of a resident of that state. The power was exercised
by a resident of New York by a will executed in this
state. In Matter of Hull, 111 App. Div. 322; affd., 186
N. Y. 586, the Appellate Division, second department,
held in the case of a non-resident donee that liability
for an inheritance tax did not depend upon the loca-
tion of the property, but where the beneficiary came
into possession through the exercise of a privilege
conferred by the state it was within the jurisdiction
and dominion of the legislature to determine the ques-
tion of taxation. The right to take property by devise
or descent is a creature of the law and not a natural
right; the sovereign power of the legislature which
confers this privilege may impose conditions upon it.
Chanter v. Kelsey, supra. It is immaterial that the
will here was probated in Massachusetts. It was exe-
cuted in New York by a New York resident, and prop-
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164 Mattbb of Canda.
Surrogate's Courts New York County, January, 1921. [Vol. 114.
erty in this state is being administered by executors
named in the will. The situs of personal property is
in the state of the domicile, although such property
is actually without this state. State of Colorado v.
Harbeck, 189 App. Div. 865, 872; Bullen v. Wisconsin,
240 U. S. 625; Blackstone v. Miller, 188 id. 189, 204;
Matter of James, 144 N. Y. 6, 10; Matter of Lydig, 113
Misc. Rep. 263. The executors^ contention cannot be
sustained that the law of Massachusetts, where the
trust estates are located, is applicable in this matter.
Walker v. Mansfield, 221 Mass. 600, is cited by them.
That case held that the exercise of the power of testa-
mentary disposition by a resident donee appointing
property located in Maryland, under a statute similar
to ours, was not subject to a succession tax. The law
of New York alone applies in this estate. '* The
power of every government over property within its
jurisdiction and territorial limits extends to reason-
able taxation for government support.'' Matter of
Majot, 199 N. Y. 29; Bullen v. State of Wisconsin, 240
U. S. 625. Mrs. Canda was a resident of this state
and her personal property wherever situated was
within our jurisdiction for tax purposes. The legis-
lature has declared the appointments made by her to
be transfers of her property and they are taxable.
It appears, however, that her will exercised the
powers in favor of her trustees with life estate to her
children, and that the transfer to them is part of what
they would have received under the wills of their
ancestors if the powers had not been exercised. It
is claimed that an election to take under the latter 's
wills had been made by the children. The appraiser
therefore erred in including the value of their life
estates as taxable (Matter of Lansing, 182 N. Y. 238;
Matter of Slosson, 216 id. 79), and the report is
remitted for the purpose of eliminating the values of
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Matteb of Canda. 165
Misc.] Surrogate's Court, New York County, January, 1921.
the life estates under the Sewall and Hubbard
trusts.
Second. The executors' second ground of appeal
is that if these transfers are taxable, the remain-
ders should be suspended from taxation imtil it is
determined whether the donees of the new powers
given in Mrs. Cauda 's will shall exercise them. Her
will provides that in default of the exercise of the
powers, the remainders shall vest in the issue of her
children, or in default of issue in their next of kin
under the laws of Massachusetts. The appeal on this
ground is denied. The donees of the new powers
reside abroad, the son of Mrs. Cauda in France, and
the daughter in England. There is an ample fund in
the state of New York now from which to pay the
transfer tax. If this property be removed from the
state in the course of administration, or on final dis-
tribution, there will be no funds available for the
payment of the tax in case the remainders vest under
the will of this decedent. It seems to me that the pro-
visions of section 230 and of section 241 of the Tax
Law contemplated the very situation existing here,
and the impounding of sufficient assets to meet tliis
contingency as a protection to the state treasury.
Under her will the estates subject to contingencies are
easily ascertainable, by computation, and come within
rule 1 laid down in Matter of Terry, 218 N. T. 218, 223.
The contingencies in this estate are not mere possibili-
ties of reverter, as in Matter of Terry. The probability
of the vesting of the remainders in default of the
exercise of the powers is not remote. Crackanthorpe •
V. Sickles, 156 App. Div. 753 ; Real Property Law, § 41.
Since Matter of Howe, 86 App. Div. 286; affd., 176 N.
Y. 570, the decisions of the Court of Appeals have pro-
gressively aided the state comptroller in securing the
immediate payment of the tax upon transfers limited
Digiti
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166 Matter of Canda.
Surrogate's Court, New York County, January, 1921. [Vol. 114.
on conditions and contingencies, and have given full
vigor to the legislative plan of requiring the payment
of taxes at the highest rate at which they might be
taxed. Matter of Zborowski, 213 N. Y. 109 ; Matter of
Parker, 226 id. 260. In the latter case Judge Cardozo
clearly sets forth this policy as follows: ** The pur-
pose is to put at once into the treasury of the state
the largest sum which in any contingency the remain-
dermen may have to pay. The remaindermen do not
suffer, for when the estate takes effect in i)ossession,
there will be a refund of any excess (Tax Law,
§ 230). The life tenant does not suffer, or, at all
events, not seriously, for interest is paid by the comp-
troller upon the difference betw^een the tax at the
highest rate and the tax that would be due if the con-
tingencies or conditions had happened at the date of
the appraisal (Tax Law, § 241). If the trustees pre-
fer, they may deposit securities of approved value, and
receive the accruing income (§ 241). To guard
against shrinkage of values, the statute bids them pay
the balance, if the deposit turns out to be too small.
Everywhere the scheme disclosed is absolute safety
for the state with a minimum of hardship for the life
tenant. * • * Collection is imperilled when the
state must keep track of the estate through all the
changes and chances of an indefinite future. The path
of safety is followed when collection is made at once.' '
The amendments of 1911 to section 230 and the addi-
tional provisions for interest or income in favor of
the beneficiaries in section 241 require that the tax
shall be presently imposed and not suspended. There
is nothing peculiarly sacred about estates which are
transmitted by means of powers, and there is no
sound reason why they should not be governed by the
same rules which control the devolution of estates by
other methods. Farmers Loan d Trust Co, v. Kip,
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Google
ElTTENBERG V, BarrETT. 167
Misc.] City Court of New York, January, 1921.
192 N. Y. 266, 278. If the powers are exercised by the
children of Mrs. Canda, no tax will be due in this
estate, and a refund by the state may be compelled
under the law. If, however, the appointment is not
made by their wills, the state will be protected. Mat-
ter of Blun, 176 App. Div. 189.
Third. The appeal of the executors on the inclusion
of a tax tmder section 221-b of the Tax Law on the
securities in the trust fund in Massachusetts is
sustained. Matter of Bowers, 183 N. Y. Supp. 137.
Fourth. The appeal of the executors on the refusal
of the appraiser to deduct the federal inheritance tax
is denied. Matter of Sherman, 222 N. Y. 340; Matter
of Bierstadt, 178 App. Div. 836.
Decreed accordingly.
Louis RiTTENBERG, ISAAC RlTTENBERG, JoSEPH RlTTEN-
BBRG and Newman Rittenberg, Composing the
Firm of and Transacting Business under the
Firm Name and Style of Rittenberg Brothers,
Plaintiffs, v. William M. Barrett, as President of
the Adams Express Company, Defendant.
(City Court of the City of New York, Special Term, January, 1921.)
Deporitions — when motion to vacate order for examination before
trial denied— express companies — joint stock associations
— parties — Code Oiv. Pro. §§ 870, 872.
Where the defendant in an action brought against him as
president of an express company, which, by not denying in
his verified answer he admits is a joint stock association of
which he is the president, and the moving affidavit upon which
an order for his examination before trial as president of the
express company "or any other officer" of the company,
clearly sets forth such facts and circumstances as show the
materiality and necessity of the testimony sought, a motion to
vacate the order will be denied but the order will be modified
to the extent of striking out the words '' or any other officer."
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168 RiTTBNBERG V. BarrETT.
City Court of New York, January, 1921. [Vol. 114.
The defendant, as president, and not the express company,
was the ''party to the action" within the meaning of sec*
tions 970 and 872 of the Code of Civil Procedure.
Motion to vacate an order for examination before
trial
Stockton & Stockton, for motion.
Olcott, Bonynge, McManus & Ernst, in opposition.
Callahan, J. This action is brought by plaintiflF
against ** William B. Barrett, as president of the
Adams Express Company." The defendant, by not
denying, admits that the Adams Express Company
is a joint stock corporation of which the defendant
is the president. Plaintiff has secured an order for
the examination before trial of '* William M. Barrett,
as president of the Adams Express Company, the
defendant herein,'' or any other officer of said Adams
Express Company, respecting certain matters alleged
to be necessary and material for plaintiff to prove
upon trial. Defendant moves to vacate this order
upon several grounds, to wit: (1) That the affidavit
upon which the order is based is insufficient; (2) that
the order for the examination of *' William M. Bar-
rett, as president of the Adams Express Company,*'
is unauthorized by the Code, and (3) that the direction
for the examination of *' any other officer '' is
improper. The first objection is, in my opinion, with-
out merit, as the affidavit clearly sets forth such facts
and circumstances as show the materiality and neces-
sity of the testimony sought to be elicited. As to the
second ground urged the defendant contends that
** William M. Barrett, as president of Adams Express
Company,'' is not an adverse party within the mean-
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RiTTBNBEBG V. BahBETT. 169
Misc.] City Court of New York, January, 1921.
ing of sections 870 and 872 of the Code of Civil Pro-
cedure, and, therefore, as the order is directed to
him as such president and does not direct the exami-
nation of the joint stock corporation by one of its
officers, the same is without authority of law and must
be vacated. It is true that in cases where a corpo-
ration is party defendant the order should direct the
examination of the corporation as the adverse party
and then provide that the information sought be
elicited by the examination of its officers {Ediicational
Films Corp. v. Lincoln d P. Co., Inc., 192 App. Div.
621, and cases cited), and the defendant claims that by
analogy the same rule is applicable in the case of a
joint stock corporation upon the theory that the asso-
ciation and not the officer against whom the suit is
brought is the party to the action within the meaning
of the Code sections above cited. In view of this con-
tention it is incumbent upon the court to determine
what is meant by the words ** party to an action '^ as
contained in section 870 of the Code, and whether in
the instant case the association or the officer sued rep-
resenting it is such party. In Woods v. De Figaniere,
1 Robt. 607, 610, the defendant, as in this case, was
sued in his representative capacity as president of
a joint stock corporation. There, also, as here, the
answer was verified by him as such defendant. The
court in holding that the president of the company
was the party defendant, and as such might be re-
quired to submit to examination before trial, said:
** What does the Code here mean by the words, * a
party to an action ' f Clearly it means any and every
person, who, throughout its provisions, is described as
a party to an action. A party to an action is one who
is named as plaintiff or defendant, and appears on the
record as such, and no other is meant. The title * par-
ties to civil actions ' prescribes who may sue as plain-
Digiti
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170 RiTTENBERG V, BarrETT.
City Court of New York, January, 1921. [Vol. 114.
tiflfs and who may be sued as defendants. By section
134, the summons is to be served on the defendant per-
sonally, except when served on a corporation, or a
minor under the age of fourteen years, or the person
named in subdivision three of that section. Plead-
ings, when verified, must be verified by the party,
except in the case of a corporation, or where they
are verified by an agent on a sufficient excuse being
shown therefor. • • * AH the provisions of the
Code, as a general rule, when treating of parties
to the action, mean only the parties to the record,
whether nominal parties, or the actual parties in
interest. And when a plaintiff or defendant is but
a mere nominal party, and has no interest in the
event, and his property cannot be touched by the
judgment, he alone is included in the description
of a party to the action; and the person for whose
immediate benefit the suit is prosecuted or defended
is not included in the description. * * * De Figa-
niere is the only party defendant in this action. He
is the nominal party and is so named in the statute by
force of vrhich he is sued. He is as much a party as
an executor, or any other party named in section 375
of the Code. They have no actual interest in the
result, and their property cannot be touched on a
judgment against them, not even for the costs of the
action, unless charged with them personally for mis-
management or bad faith. * * * The joint stock
company is not a party to the action : it is not a legal
entity, and as such cannot sue or be sued. The indi-
vidual associates, as such, are not the parties. Th&
action is defended for the immediate benefit of the
joint stock company, but that is not a party, and can-
not be made one. It has no capacity to sue or be sued,
as such, and therefore cannot appear on the record
as a party. De Figaniere is the nominal party def end-
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RiTTENBERG V, BaRRETT. 171
Misc.] City Court of New York, January, 1921.
ant, and the only person named as a party defendant ;
and to claim immunity from the statute compelling
a party to submit to be examined, he must show that
some parties, when nominal parties only, are exempt,
and that he comes within the class of exempt parties.
This has not been shown. On the contrary, the Code
includes all parties to the action, whether nominal or
the actual parties in interest; and he is, therefore, lia-
ble to be examined the same as any other party/' The
reasoning in the above case is approved by the Court
of Appeals in People v. Mutual Gas Light Co., 74
N. Y. 434, 436, where it is said : *' Upon the construc-
tion of a similar provision of the former Code the
New York Superior Court, after an elaborate and
careful examination of the question in Woods v. De
Figaniere, 1 Robt. 610, arrived at the same conclu-
sion upon reasoning which meets our approval/' In
McGuffin V. Dinsmore, 4 Abb. N. C. 241, the court,
upholding the right of plaintiff to an order for the
examination of William B. Dinsmore as president of
the Adams Express Company, a joint stock corpora-
tion, before trial, said: ** William B. Dinsmore is the
only ' party ' defendant in this action, notwithstand-
ing that he is sued in his representative capacity as
president of an association consisting of numerous
individuals {Wood v. De Figaniere, 1 Robt. 607).
* * * I am of opinion that neither the Adams
Express Company by its officers, nor its individual
members, other than such one or more of them as are
or may be made parties to the record, can be examined
as parties before trial, under section 870. The plain-
tiff was not obliged to avail himself of the privilege
accorded to him by the statute of 1849, of suing the
association in the name of its president. He might
have proceeded at his option, in tlie first instance,
egamst th^ persons constituting such association, by
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172 RiTTENBERG V, BARrKTT.
City Court of New York, January, 1921. [Vol. 114.
making them parties to the record, in which case each
and all of them would have been liable to examination.
• * * The association is not a corporation and- can-
not be examined in this suit as a party by its officers,
or otherwise than through the particular individual
who, by virtue of the statute and for the purposes of
action represents it, as the party of record. Its officers,
other than such individual, can only be examined as
witnesses in the same manner as if they sustained no
official relation to it.*' In Brooks v. Dinsmore, 15
Daly, 428, the court, on appeal, held that, pursuant
to the provisions of the Consolidation Act requiring
actions in the District Court to be brought in the dis-
trict in which either the plaintiff or defendant resides,
an action brought against a joint stock association in
the name of its president must be brought in the dis-
trict in which either the plaintiff or such president
resides, the court holding that such president is the
only party defendant. So also, in an action brought
in this state by the president of a joint stock associa-
tion in his own name as such president (he being a
citizen of this state), it has been held that, so far as
determining whether the action should be removed to
the United States Circuit Court by reason of diversity
of residence of the respective parties to the suit, the
citizenship of plaintiff is governed by the citizenship
of the person suing. Fargo v. McVicker, 55 Barb.
437. In a similar case (Bacon v. Dinsmore, 42 How.
Pr. 368) the court, in granting defendant's applica-
tion for a change of venue, said: *' The defendant
has a legal right to have the place of trial changed to
New York, if the persons named as plaintiff and
defendant are the parties to the action. • • • We
think they are parties. The associations which they
represent, clearly are not nor could they be made
parties, inasmuch as they have no legal capacity to
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RiTTENBEBG V. BarrETT. 173
Misc.] City Court of New York, January, 1921.
sue, or to be sued.'' I have been able to find but one
case opposed to the views above expressed. Duncan v.
Jones, 32 Hun, 12. This was an action against George
Jones as treasurer of the association publishing the
New York Times, a joint stock association. The action
was for libel and the answer denied the material alle-
gations of the complaint, admitting only that there is
** an association publishing the New York Times/'
The facts as to which defendant was to be examined
under the order were as follows : (1) The existence of
the joint stock association; (2) that it consisted of
more than seven members, and (3) that the defendant
is its treasurer. The court below vacated the order
upon the ground that, it being an action in libel, the
defendant could not be required to testify to any facts
essential to sustain an indictment against him and his
associates, and that the composition of such association
was such a fact. Upon appeal the court questioned
whether an action for libel could be brought against
the treasurer under section 1919 of the Code, but left
this matter for determination at Trial Term, and held
that notwithstanding the fact that the action was
brought pursuant to the provisions of such section,
such officer is not necessarily a member of the associa-
tion or partnership; that no judgment goes against
him personally; that he cannot be arrested and no
execution can be issued against his property or per-
son, but that the same goes against the personal prop-
erty of the association only, and for this reason such
officer was not the party to the action in the technical
sense required by section 870. Notwithstanding the
holding in the case last above cited, I believe the pre-
vailing rule of construction in this jurisdiction is that
the officer and not the association is the party within
the meaning of sections 870 and 872 of the Code, and
as this construction, in my opinion, is best supported
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1 74 RiccoBONo V. Cleary.
City Court of New York, January, 1921. [Vol. 114.
by reasoning, analogy and convenience, I am inclined
to follow same. It is conceded that the words '* or
any other oflBcer '' have no place in the order, and
hence the same will be modified to the extent of strik-
ing them out. Motion to vacate denied, with $10 costs,
but order modified as indicated.
Ordered accordingly.
John Riccobono, Plaintiff, v. Patrick J. Cleary,
Defendant.
(City Court of the City of New York, Special Term, January, 1921.)
Pleading — when motion to strike out defense denied — use and
occupation ^- statutes — tender — deposit — tenant out of
possession — Laws of 1920, chap. 944, § 6.
In an action for use and occupation the complaint alleged
that prior to the commencement of the action defendants
vacated the premises, and the answer, after denials of the alle-
gations of the reasonable value of the use and occupation,
pleaded as a separate defense that the occupation of the prem-
ises was under a special agreement fixing at a sum stated the
rent to be paid, conceded that a certain sum was due under
said agreement, and pleaded a tender thereof to plaintiff. A
motion to strike out said defense was made on the ground that
under the statute (Laws of 1920, chap. 944, § 6) it was improp-
erly pleaded unless at the time of answering defendants
deposited with the clerk of the court a sum equal to the amount
paid as rent during the preceding month or saeh sum as was
reserved as rent under the agreement under which possession
was obtained. Held, that the defense raised no issue under
the statute as to the reasonableness of the amount demanded
in the complaint, and the motion will be denied though it was
conceded that the deposit called for by the statute was not made.
It was not the legislative intent that the requirement for a
deposit should be applicable except in cases where the tenant
is in possession of the premises involved, at the time of the
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RiccoBONo V. Cleary. 175
Misc.] City Court of New York, January, 1921.
institution of the snit, and a motion to strike out the denials,
on the same. ground that the motion to strike out the separate
defense was made, will be denied.
Motion to strike out certain denials and a separate
defense set up in defendant's answer.
G. Arnold Moses, for motion.
Joseph V. McEee (Charles Eno, of counsel),
opposed.
Callahan, J. This is a motion made by plaintiff to
strike out certain denials and a separate defense set
up in the defendant's answer. Plaintiff sues for the
alleged reasonable value of the use and occupation by
defendant of a certain house in the city of New York.
It appears from the complaint that prior to the insti-
tution of this action defendant herein vacated said
premises. The answer of the defendant contains
denials of the allegations of the reasonable value of
the use and occupation of the premises and sets up as
a separate defense that the premises were occupied
under a special agreement fixing at a sum stated the
rent to be paid therefor. It concedes that under said
agreement a certain sum is due and pleads that the
defendant has tendered such sum to the plaintiff.
The present motion to strike out the denials of reason-
able value and the whole of the separate defense plead-
ing the special agreement and tender is based upon the
contention that under the provisions of section 6 of
chapter 944 of the Laws of 1920 such denials and such
defense are improperly pleaded unless at the time of
answering the defendant deposit with the clerk of the
court a sum equal to the amount paid as rent during
the preceding month or such sum as was reserved as
rent under the agreement under which possession was
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176 RiccoBONo V. Clbary.
City Court of New York, January, 1921. [Vol. 114.
obtained. It is conceded that no such deposit was
made here. The contention of the plaintiff clearly has
no force with respect to the separate defense. The
statute refers to denials or defenses which raise the
issue of the reasonableness of the amount demanded
in the complaint. The separate defense referred to
raises no such issue. It sets forth that the occupation
of the defendant was under a special agreement, and
such agreement is properly pleaded as a bar to the
action in assumpsit for rental value. The motion with
respect to the denials raises a more diflBcult question.
Upon a casual reading the statute may appear to
require a deposit in every action in which a defendant
raises the issue of the reasonableness of a sum claimed
as rental value. A careful examination of the whole
statute, however, compels me to hold that it was not
intended by the legislature that the requirement for
a deposit should be applicable except in cases where
the defendant (tenant) is in possession of the premises
involved at the time of the institution of the suit A
reading of the last sentence of section 6 of the act in
question shows the intent contended for. That sen-
tence says if judgment in the action is rendered for
plaintiff and it cannot be fully satisfied from the sum
deposited the plaintiff shall be entitled to a warrant
dispossessing all persons from the premises in ques-
tion. Consideration of the circumstances under which
this legislation was adopted, the report of the commit-
tee that recommended it and a reading of the statute
itself show that the intent of the legislature was to
have the requirement for deposit apply only in those
cases in which the tenant's continued possession of
the premises without paying the landlord some rent
would be unfair to the landlord. It was clearly not
mtended to be a statute limiting the right of a former
tenant to litigate the question of the reasonableness
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MOLLOY V. COLBTTI. 177
Misc.] Supreme Court, January, 1921.
of the rent demanded when the litigation of such ques-
tion in no way affected the emergency which the legis-
lature was seeking to cope with in passing the statute
involved. The motion is denied.
Motion denied.
Joseph E. Molloy, Plaintiff, v. Joseph Coletti.
Defendant.
(Supreme Court, New Yorii: Special Term, January, 1921.)
Pleading — when demurrer to complaint overruled — restaurant
keepers — injury to guest — when motion for judgment on
the pleadings denied.
Where in an action by one who while a guest in defendant's
restaurant was seriously injured by being struck on the head
by a heavy glass water tumbler thrown by a patron of the
restaurant, the complaint alleges that defendant had notice,
through the continued offensive, boisterous and unlawful con-
duct of the patron who threw the tumbler, a demurrer to the
complaint upon the ground that it does not state facts sufficient
to constitute a cause of action will be overruled, and defendant's
motion for judgment on the pleadings denied with leave to
serve an answer.
. Motion for judgment on the pleadings.
R. Waldo MacKewan, for plaintiff.
Jnlius Halheimer, for defendant.
Nbwburgeb, J. The plaintiff alleges that while a
guest in the restaurant operated and owned by the
defendant he was violently struck on the head by a
heavy glass water tumbler thrown by a patron of said
restaurant and was seriously injured. He further
alleges that it was the duty of the defendant to afford
protection to him from unlawful acts of other patrons,
12
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178 Childs Co., Inc., v. Reardon, Inc.
Supreme Court, January, 1921. [Vol. 114.
and that notwithstanding this duty the defendant,
although duly warned by the boisterous, offensive and
unlawful conduct of the patron who threw the glass,
made no effort to protect plaintiff. The defendant
demurs to the complaint upon the ground that the
same does not state facts sufficient to constitute a
cause of action. In Rommel v. Schambacher, 120
Penn. St. 579, 582, it was held: *' Where one enters a
saloon or tavern, opened for the entertainment of the
public, the proprietor is bound to see that he is prop-
erly protected from the assaults or insults, as well of
those who are in his employ, as of the drunken and
vicious men whom he may choose to harbor. ' ' As the
complaint alleges that the defendant had notice
through the continued off ensive, boisterous and unlaw-
ful conduct of the patron who injured plaintiff, the
motion for judgment on the pleadings must be denied,
with costs, with leave to the defendant to answer.
Motion denied, with costs.
E. E. Childs Company, Inc., Plaintiff, v. P. Reardon,
Inc., Defendant.
(Supreme Court, New York Special Term, January, 1921.)
Oontracts — what constitutes — warehousemen — receipts — nego-
tiable instruments — pleading — General Business Law, § 91.
A provision in a warehouse receipt that the goods were to be
stored in a particular warehouse constitutes a contract that
they shall remain there and no change can be made except by
consent of the holder of the receipt.
After a negotiable warehouse receipt, conforming to section 91
of the General Business Law, had been given by defendant for
goods stored in one of its warehouses, it was indorsed and
delivered to one to whom the goods were sold, and the buyer,
upon the sale of the same to plaintiff, indorsed and delivered
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Childs Co., Inc., v. Reardon, Inc. 179
Misc.] Supreme Court, January, 1921.
to the purchaser the warehouse receipt. Without the consent
of plaintiff or any of the holders of the war^ouse receipt the
goods were removed to another warehouse and there destroyed
by fire. In an action to recover on the warehouse receipt
defendant by its answer admitted its receipt of the goods and
the issuance of the warehouse receipt. Held, that a separate
defense that defendant notified the one who stored the goods
that it desired to remove them from the place described in the
receipt, and that if defendant did not receive any word of
objection to such course, the transfer would be made, was
subject to a demurrer.
Demubrer to defense.
Hoadly, Lauterbach & Johnson (Henry Siegrist, of
counsel), for plaintiff.
Max Sheinart, for defendant.
Newburger, J. The complaint alleges that the
defendant, a domestic corporation, operating a ware-
house, received from one Chemical Importing and
Manufacturing Company sixty cases of chocolate for
storage in its warehouse at Nos. 298-301 South
street, and delivered to said chemical company a nego-
tiable warehouse receipt. That thereafter said chem-
ical company sold the said merchandise in storage to
one McOoldrick and indorsed and delivered to him the
said warehouse receipt. That thereafter McGoldrick
sold the same merchandise to plaintiff and indorsed
and delivered the said warehouse receipt to it. That
thereafter the defendant notified plaintiff that the
said cases of chocolate had been removed to another
warehouse at No. 237 South street and there destroyed
by fire. That neither the plaintiff nor any of the hold-
ers of said warehouse receipt had consented to the
removal of the goods. That plaintiff presented said
warehouse receipt to the defendant and demanded
delivery of said merchandise and offering to pay to
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180 Childs Co., Inc., v. Reardon, Inc.
Supreme Court, January, 1921. [Vol. 114.
the defendant all its charges and expenses. The
answer admits the receipt of the goods, the issuance
of the warehouse receipt, and sets up as a separate and
distinct defense that the defendant notified the chem-
ical company that it desired to remove the mer-
chandise from the warehouse Nos. 298-301 South
street, the place described in the receipt, and that if
it did not receive any word from the chemical com-
pany objecting to the said transfer that said mer-
chandise would be transferred. That receiving no
objection, defendant made the transfer. That after
the transfer the goods were destroyed by fire through
no fault of the defendant. The plaintiff demurs to this
defense. The receipt states that it is negotiable and
can be transferred by indorsement and the goods are
**in store Nos. 298-301 South street.'' The contract
is clear. Section 91 of the General Business Law pro-
vides the form of the warehouse receipt, and among
other provisions it requires a statement of *' location
of the warehouse where the goods are stored.'' Sec-
tion 125 provides: **A person to whom a negotiable
receipt has been duly negotiated acquires thereby:
(a) Such title to the goods as the person negotiating
the receipt to him had or had ability to convey to a
purchaser in good faith for value, and also sucli title
to the goods as the depositor or person to whose order
the goods were to be delivered by the terms of the re-
ceipt had or had ability to convey to a purchaser in
good faith for value, and (b) The direct obligation of
the warehouseman to hold possession of the goods for
him according to the terms of the receipt as fully as if
the warehouseman had contracted directly with him.'^
The plaintiff was therefore entitled to have the con-
tract carried out as provided in the receipt It is clear
that the provision in the receipt that the goods were to
be stored in Nos. 298-301 South street constituted a
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GUIDA V. PONTRELLI. 181
Misc.] Supreme Court, January, 1921.
contract that the goods were to remain there and no
change could be made except by consent of the holder
of the receipt. The answer fails to show any notice
to or consent by the plaintiff to the transfer of the
property to another warehouse. The demurrer to the
separate defense must be sustained, with costs.
Demurrer sustained, with costs.
Savbrio GuroA, Plaintiff, v. Angelina D 'Amice Pon-
TRBLLi, Sued as Angelina D 'Amice, Defendant.
(Supreme Court, Kings Special Term, January, 1921.)
Contracts — when action cannot be maintained against third per-
son for damages for breach of contract to marry — pleading
— fraud — when motion for judgment on the pleadings
granted.
A party to a contract to marry cannot maintain an action
for general damages against a parent or other x>er8on who
even maliciously induces the other party to break the contract,
unless fraud or other tortious means be employed.
A demurrer to a complaint which alleged inter alia that
plaintiff incurred great expense in anticipation of his marriage
to defendant's daughter and had suffered damages in the sum of
$10,000 by reason of the deprivation of the companionship,
society, love and affection of his fiancee, sustained with leave
to serve an amended complaint and defendant's motion for
judgment on the pleadings granted.
Motion by defendant for judgment on the pleadings.
Ira G. Darrin, for defendant, in support of motion.
Edward J. Reilly, for plaintiff, in opposition.
Benedict, J. This is a motion by defendant for
judgment on the pleadings, consisting of complaint
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182 GUIDA V. PONTRELU.
Supreme Court, January, 1921. [Vol. 114.
and demurrer. The complaint alleges in substance
that plaintiff and defendant's daughter, with defend-
ant's consent, entered into a contract to marry; that
they obtained a marriage license, defendant at the
time giving her consent in writing; that afterward
defendant maliciously caused her daughter to break
the contract and sent her away to Italy prior to the
date to which the wedding had been postponed, and
that plaintiff had incurred ** great expense " in antici-
pation of the marriage, and was deprived of the
companionship, society, love and affection of his
fiancee, all to his damage in the sum of $10,000, for
which sum judgment is demanded. The case thus
brings up the question whether an action will lie by
one party to a contract to marry against a third
person who induces the other party to break the
engagement. Notwithstanding that this is a very
unusual question, counsel on both sides have seen fit
to impose on the court the labor of searching for
authorities.
Before discussing the few authorities which have
been found, it may be worth while to state the law
applicable generally to cases of interference by a third
person with the execution of a contract, through
inducing one of the parties to break it. The doctrine
to which our courts in New York have adhered for
many years is that no action will lie in such a case,
unless the breach of the contract is brought about by
fraud or other tortious act. Ashley v. Dixon, 48 N. Y.
430; Daly v. Cornwell, 34 App. Div. 27; DeJong v.
Behrman Co., 148 id. 37; Turner v. Fulcher, 165 N. Y.
Supp. 282. This doctrine differs from that recognized
in some other jurisdictions, where it is held that an
action may be maintained for maliciously inducing a
party to a contract to break it, without regard to the
means employed. Automobile Ins. Co. v. Giuiranty
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GUIDA V. PONTRELLI. 183
Misc.] Supreme Court, January, 1921.
Securities Corporation, 240 Fed. Repr. 222, 225;
American Malting Co. v. Keitel, 209 id. 351, 358;
Wheeler-Stenzel Co. v. American Window Glass Co.,
202 Mass. 471 ; Booth v. Burgess, 72 N. J. Eq. 181, 188;
Temperton v. Russell, (1893) 1 Q. B. 715.
Coming now to cases involving the contract to
marry, very few have been found. The only one in
point is Leonard v. Whitson, 34 Ind. App. 383, in
which it was held that an action could not be main-
tained against the parents of a young man, who
induced him to break his engagement with plaintiff
after he had seduced her, and she was with child by
him, features which would seem to make the case
much stronger for the plaintiff than the present action.
It was also held that even if the parents had made
false statements about plaintiff to induce the son to
break the engagement, the action would be for slander,
and the breach of the contract only an element of
damage. Cooley is to the same effect. 1 Cooley Torts
(3d ed.), 494, '277, •278. Harriott v. Plimptofi, 166
Mass. 585, is inconclusive. Wolf v. Wolf, 194 App.
Div. 33, is cited by defendant, but is of little assistance.
There the parties had been married, both being under
the age of legal consent, and the parents of the hus-
band, who had not consented to the marriage, took
him under their control pending an action for annul-
ment which they had brought. In Quebec it has been
held that a parent may be liable in case a minor child
wrongfully breaks a contract to marry, even without
active interference on the parent's part, but this doc-
trine seems to be based upon a law of that province
making a parent liable for the torts of his minor child,
the breach of promise being regarded as a tort. Inter-
noscia v. Bonelli, 28 Queb. Super. 58; Delage v. Nor-
mandcau, 9 Queb. Q. B. 93.
Taking all these authorities I can come to no other
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184 GUIDA V. PONTRELU.
Supreme Court, January, 1921. [Vol. 114.
conclusion than that in this state a party to a con-
tract to marry cannot maintain an action for general
damages against a parent or other person who even
maliciously induces the other party to breach the
contract, unless fraud or other tortious means be
employed.
Plaintiff is not, however, in my opinion, remediless
so far as the expenses incurred by him in anticipation
of the marriage were incurred in reliance upon the
defendant's consent, and before notice of the with-
drawal thereof, provided such withdrawal. was with-
out adequate reason. The age of defendant's daugh-
ter is not alleged, but it is stated in defendant's memo-
randum that she was seventeen at the time defendant
consented to the marriage; and I assume that the
daughter was under eighteen at that time, because
when the license was issued, defendant gave her writ-
ten consent. See Dom. Rel. Law, § 15. But the com-
plaint does not contain appropriate allegations to
enable plaintiff to recover the amount of such
expenses, because it does not appear that they were
incurred in reliance upon defendant's consent and
before notice of its withdrawal. I should regard it as
also important to allege the age of the. daughter, and
whether or not her father was living at the time, and
if living whether or not his consent could be obtained,
because I think it should appear that defendant's con-
sent was legally necessary to obtain the license, and
that her consent alone was sufficient, in order to give
plaintiff the right to rely thereon in making the
expenditures which he alleges.
It may be urged that, as the daughter was an infant,
the contract to marry was not binding upon her, and
hence that no action can be maintained against the
defendant for inducing the daughter to break it, even
to recover the amount expended by plaintiff in
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Wood Mowing & Reaping M. Co. v. Toohey. 185
Misc.] Supreme Court, January, 1921.
reliance npoB defendant's consent. But the fact that
the contract was not binding upon the daughter does
not relieve thiB defendant from liability in respect of
these expenditures under the circumstances above
mentioned, if, but for her interference, the marriage
would have taken place. Rice v. Manley, 66 N. Y. 82.
The conclusion which I have reached from all the
above considerations is that under the law of this
state a person who, without fraud or other act amount-
ing to a tort, induces a party to a contract to break it
is not liable to the other party for general damages,
but may under peculiar circumstances be liable for
special damages.
The defendant's motion for judgment on the plead-
ings is granted, with ten dollars costs, and demurrer
sustained, with leave to plaintiff to serve an amended
complaint within twenty days on payment of such
costs.
Ordered accordingly.
Walter A. Wood Mowing and Eeaping Machine Com-
pany, Plaintiff, v. Thomas H. Toohey et al.,
Defendants.
(Supreme Court, Rensselaer Special Term, January, 1921.)
Injunctions — when motion to vacate a temporary injunction
granted — labor unions — meaning of word "picketing" —
damages.
Employees on strike may employ persuasion and peaceable
means to keep non-union men from taking tbeir places, and
the fact that the employer is irreparably damaged as an inci-
dent of picketing by the strikers and that it has no adequate
remedy at law does not deprive the strikers of their legal right
to '^picket/' providing there is no malice and no violence.
(P. 188.)
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186 Wood Mowing & Eeaping M. Co. v. ToonRv.
Supreme Court, January, 1921. [Vol. 114.
A motion to vacate a temporary injunction principally
against "picketing" granted in an action brought for a per-
maneiit injunction against certain workmen of the plaintiff, out
on strike, granted, with admonition to defendants that any
excesses or violence or depredations or destruction of property
will result in another injunction, instant er, (P. 197.)
Action to obtain a permanent injunction.
George E. Greene (Alden Chester, of counsel), for
plaintiff.
William A. Cahill (Alvin E. Mambert, of counsel),
for defendants.
Howard, J. This action is brought to obtain a per-
manent injunction against certain working men who
are out on a strike, and against other persons who arc
not defendants. A sweeping temporary injunction,
principally against *' picketing," has been obtained
and this is a motion to modify or vacate it.
More than half of the complaint is devoted to a his-
tory of the strike and an attempt to establish that it
was unjustified. It may have been unjustified, but
that is of no importance here unless it was called to
gratify malice and for the sole purpose of injuring
the plaintiff's business or property. The strike was
precipitated by the discharge of Toohey, one of the
workmen in the plaintiff's plant. The union contends
that he was unjustly discriminated against. The
plaintiff denies this. If discrimination was the reason
why the men went out the strike was lawful, for a
labor union has a right to strike ** to secure the
re-employment of a member they regard as having
been improperly discharged." Nat. Pro. Assn. v.
Cumming, 170 N. Y. 322. Workingmen have an abso-
lute right to strike. That is settled beyond peradven-
ture in this state. They may state their reasons or
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Wood Mowing & Reaping M. Co. v. Toohey. 187
Misc.] Supreme Court, January, 1921.
not, just as they please; and their reasons, if they do
state them, '^ may seem inadequate to others, but if it
seems to be in their interest as members of an organi-
zation to refuse longer to work, it is their legal right
to stop." Nat. Pro. Assn. v. Cumming, supra.
And laboring men not only have the right to strike,
that is to quit work, but they have the right to per-
suade others to strike and to attempt to persuade
others not to take their places. In order to do this
the strikers must, of course, be permitted to talk to
their fellow workmen and to the men who are about
to take their places, otherwise there could be no per-
suasion ; for how can one man persuade another unless
he talks to him? The strikers must not, however,
resort to violence or intimidation, for the non-union
man has as much right to work as the union man has
to strike. These are axioms. They are principles
which have long been inbedded in the law.
The strikers are accused of '* picketing;" in fact
that is the one great grievance set forth in the com-
plaint. But suppose they are picketing, what of that?
They have as much right to picket as to strike, pro-
viding that they do not resort to threats or violence.
Picketing simply means standing along the highways
of approach, or near the entrances to the plant, in time
of strike, for the purpose of observing who is working
and of attempting to persuade them to quit. Non-
union laboring men have a right to work and to go to
and come from the shop unmolested, and corporations
have a right to employ them, and any attempt on the
part of strikers to interfere with these rights by
coercion or intimidation, or by blockading the roads,
or by compelling the non-union men to run the gaunt-
let, is unlawful ; but I find nothing here which amounts
to any such condition. A few sporadic instances of
indiscreet language and of vulgarity are pointed out.
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188 Wood Mowing & Reaping M. Co. v. Toohey,
Supreme Court, January, 1921. [Vol. 114.
but the plaintiff's aflBdavits show that the non-union
men were in no manner frightened or cowed by this,
notwithstanding that many of them claim to have
been put in fear, and that in most cases they displayed
a courage and defiance and employed language which
fully matched the temper and talk of the strikers. It
is the law of this state, so far as the question has been
settled, that strikers may employ persuasion and
peaceable means to keep non-union men from taking
their places ; and the fact that the plaintiff is irrepara-
bly damaged, as an incident of the picketing, and that
it has no adequate remedy at law, does not' deprive the
defendants of the right to picket, providing there is no
malice and no violence.
This rule, which must, I believe, at last everywhere
prevail, has just recently^ been firmly planted in the
statutes of the United States. In other words pick-
eting has been legalized by congress. The right to
picket is, therefore, no longer a debatable question in
the Federal jurisdiction. The Clayton Act, so-called,
enacted October 15, 1914, provides that no injunction
order '* shall prohibit any person or persons, whether
singly or in concert, from • • • ceasing to per-
form any work or labor, or from recommending, advis-
ing, or persuading others by peaceful means so to do ;
or from attending at any place where any such person
or persons may lawfully be for the purpose • • •
of peaceably persuading any person to work or to
abstain from working; • • • nor shall any of the
acts specified in this paragraph be considered or held
to be violations of any law of the United States. ''
Thus we find the right to *' picket " definitely sanc-
tioned and rooted in the statute laws of the Federal
government. This enactment does not, of course, con-
trol the courts of the state of New York, in a case of
this character, but it does put into Federal statutory
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Wood Mowing & Reaping M. Co. v. Toohey. 189
Misc.] Supreme Court, January, 1921.
form the law of this state as propounded by its ablest
jurists. It also sweeps away completely, from consid-
eration here, all that has been previously written by
the Federal courts in opposition to picketing, includ-
ing Atchison, T. S S. F. Ry. Co. v. Gee, 139 Fed. Eepr.
582, cited by the plaintiff. And not only that, but it
sets forth in bold certain statutory language, the trend
of modern thought against injunctions in labor dis-
putes. The Clayton Act has in no degree been devital-
ized, as between the ** employer and the employees,**
by the decision of the Supreme Court of the United
States in Duplex Printing Press Co. v. Deering, handed
down January 3, 1921. That case went off on another
theory.
Judge Andrews, now on the Court of Appeals, sit-
ting then at Special Term, in a well-considered opin-
ion, the best I have read on the subject, correctly sets
forth the law of this state on picketing. He said:
** Mere picketing, therefore, if it is peaceful, if there
is no threat or intimidation, if it is confined to simple
persuasion, I do not regard in any sense as unlawful,
whatever may be the motive of the picketers.'* Foster
V. Retail Clerks* Protective Assn., 39 Misc. Eep. 48,
57. This is sound, _Itis just^ It is the law. It must
forever remain the law until, liberty .J?l.spee_chjee^^
to be a human right.
""^Tfptheu, it la The law in this state that strikers on
picket duty may use ** persuasion,** what is persua-
sion? What language is permitted? What is prohib-
ited? The nomenclature of the strike is not the lan-
guage of the parlor. Men become earnest and excited
and vigorous at such times. A vital principle is at
stake. It is not within the limits of human nature to
remain calm and gentle under such circumstances.
The fervor of argument is upon them; the stimulus
of battle. They forget etiquette and grammar. They
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190 Wood Mowing & Reaping M. Co. v. Toohby.
Supreme Court, January, 1921. [Vol. 114.
employ strong language. Sometimes they go beyond
the borders of decorum. But so do men in all walks
of life. Instigated by emotion and impelled by deep
conviction men always employ strong words. This
happens during political campaigns, and on election
day, and even in the court room while lawyers are
addressing the bench. Men gesticulate, on such occa-
sions, and become excited and demonstrative.
Must laboring men be held down to a more stringent
rule? Must they be under constant restraint? Are
they forced to be placid in the hour of contention?
It is well, perhaps, to be so, but does the law demand
it? I think not. Strikers may talk in their own lan-
guage ; the plain, common, strong, everyday language
of the laboring man.
'*A peaceable and orderly strike • * * is not a
violation of law." Nat. Pro. Assn. v. Cumming, supra.
The plaintiff contends, however, in addition to the
alleged illegal picketing of which it complains, that
this strike is not peaceable and orderly, but violent,
disorderly and criminal. Let us see.
Stripped of its verbiage, generalities and conclu-
sions, the complaint seems remarkably barren. The
pleading and aflBwiavits show that the word '* scab "
has been used three times, I think, and there has been
some profanity and some vulgarity, and there are two
or three expressions which might be construed into
threats. Otherwise there is nothing, barring the alle-
gations which in no wise appertain to the defendants,
and to which I shall refer later. Not one act of vio-
lence or disorder has been traced to the door of any
defendant; not an assault, not an arrest, not a shot,
not a blow, not a menace.
Much importance is attached to the fact, if it be a
fact, that some of the defendants on a few occasions
used the word *' scab." I cannot feel myself shocked
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Wood Mowjng & Reaping M. Co. v, Toohky. 191
Misc.] Supreme Court, January, 1921.
by that word. The law, although, perhaps, deprecating
its use, is not so sensitive as to be outraged by it.
The word is coarse and offensive, to be sure, but it
carries with it no import of infamy or crime. Its
meaning is perfectly well known and its use is very
common. Webster gives this definition of the word:
*'A working man who works for lower wages than, or
under conditions contrary to, those prescribed by the
trade union ; also, one who takes the place of a work-
ing man on a strike." This definition embraces no
thought of violenco, no infraction of the law, no threat,
no menace. Why should this word be especially
tabooed? It is offensive, beyond question, and per-
haps opprobrious. It would be better un&aid, but why
should the court enjoin the strikers from using this
particular word, or enjoin them from anything
because they have used it? There is no reason, as I
comprehend the rules of equity.
The plaintiff points out certain expressions of the
defendants which it construes into threats. Such a
construction is too far-fetched to warrant the court in
concurring with the plaintiff. These alleged threats
are so vague in character and of such insignificance,
in my estimation, that I shall pass over them all,
except one, without comment.
The one I have in mind is this. During the progress
of the strike a barn was burned. It was owned by one
of the men who had continued to work in spite of the
remonstrance of the strikers. No attempt is made to
show that the fire was incendiary, and not even the
finger of suspicion is pointed at any striker, except
that previous to the fire one of the defendants is
alleged to have said to the owner of the barn, *' If you
go to work you will be sorry, but it will be too late.'*
The striker vigorously denies that he ever had any
such conversation with the man; but assume that he
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192 TVooD Mowing & Reaping M. Co. v. Toohey.
Supreme Court, January, 1921. [Vol. 114.
did, can we fairly spell out of these words a threat
to bum the man^s barn, or any other threat! It is
nearly whimsical to attempt to import a sinister mean-
ing to these words. This would be a flimsy foundation
indeed for injunction.
Passing over these trivial features of the plaintiff's
papers we come to the one central event relied upon
by the plaintiff, and set forth in the complaint and
repeated in the affidavits. It is the alleged assault
upon the night fireman, coupled, the same evening,
with the attempt to shoot the general superintendent.
These events demand particular consideration, be-
cause without them the plaintiff's papers become
nearly frivolous.
The plaintiff's night fireman alleges that on the
night of November 12, 1920, he was assaulted. Nobody
saw it, nobody corroborates the fireman's statement
except that blood and bruises were seen on his head
and face by others. His wounds were examined and
described by Dr. Shaw, so that there can be no doubt
that he was hurt in some manner. But assuming that
the fireman told the exact truth about it all, how does
that impugn the conduct of these defendants! How
is the incident relevant here! The assailants are
unknown. The fireman could not identify them. It
may be assumed that he knew most of the strikers, at
least by sight, yet the men who assaulted him were
strangers to him. The defendants indignantly deny
any complicity in the assault or knowledge of it. To
charge this atrocity against them without proof would
be monstrous. Not a rule ever known in law or equity
would sanction it. The incident is wholly alien to this
ease.
On the same evening George N. Allen, the plaintiff's
general superintendent, claims to have been fired
upon. Nobody saw this assault although other people
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Wood Mowing & Reaping M. Co. v. Toohey. 193
Misc.] Supreme Court, January, 1921.
heard the shots. Four bullets were fired at the super-
intendent and immediately thereafter Allen showed
people his hat through which a bullet had ploughed
its way. But the would-be assassins are unknown.
Not a fragment of evidence points towards the defend-
ants. There is no nexus between the strikers and the
felons. Nothing connects the defendants in any man-
ner with this dastardly deed. They are strangers to
the outrage. It is true that the event happened during
the progress of the strike, but are workingmen on a
strike to be charged without rhyme or reason with
every crime committed in the neighborhood? If not,
then how is the incident relevant here! Counsel
cannot seriously urge this unidentified felony as a
basis for injunction. Who is to be enjoined? Not
innocent men, surely ; not men against whom there is
no evidence whatever, either of knowledge or com-
plicity. Therefore, even if the event be taken as true,
it counts for nothing here.
But the story cannot be accepted too implicitly by
the court. Allen *8 testimony has been seriously
shaken. He is arraigned as an impostor. It is charged
that in West Virginia, in 1912, Allen enacted a
spurious scene quite similar to this. There he claimed
to have been assaulted, robbed, gagged and bound by
footpads. Afterwards he signed a written confession,
so the defendants allege, admitting that he had bound
and gagged himself and ** faked '* the holdup. These
grave charges against Allen are presented to the
court, not by mere nondescripts, but by the aflBdavits
of three public officials of Wheeling, West Virginia,
and by a member of the bar of that city. One of these
men is now sheriff of the county, one is a deputy
sheriff and one is a member 6f the " plain clothes
squad." At the time of the alleged holdup they each
held office; one was the prosecuting attorney, one was
la
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194 Wood Mowing & Reaping M. Co. v. Toohey.
Supreme Court, January, 1921. [Vol. 114.
chief of police, one was a city detective and the other
was a police officer, and they were the officials in
charge of the prosecution of the supposed highway-
men. These men are trusted, experienced public
servants and seem worthy of belief.
And the story is vouched for to some degree by the
affidavit of Allen himself. It is true that he still
insists that he ** was actually assaulted and waylaid
and seriously injured,** but he admits that he was
suspected of having framed up the robbery and that
two detectives '* put him through the third degree,"
and read a written statement over to him. And he
does not dispute that the statement contained the mat-
ter set forth by the Wheeling officials but he says that
he is now unable to recollect what it contained, and he
seems to account for this failure of memory by saying
that the detectives ** grilled him until he hardly knew
what he was about.*'
Equity requires those who seek equity to come into
court with clean hands, but if this Wheeling story be
true, Allen 's hands are soiled nearly beyond purifica-
tion. If the testimony of these accredited public offi-
cials of West Virginia is to be accepted, it utterly
destroys the evidence of Allen and taints the plaintiff 's
whole case with fraud and imposition. This expres-
sion, however, is not intended in any manner to reflect
upon the plaintiff's attorneys. They are men of the
highest standing in their profession and I assume that
they knew nothing whatever of Allen's previous his-
tory and nothing concerning the West Virginia
episode until it was divulged by the defendants'
affidavits.
The plaintiff's superintendent does not rest supine
under this attack upon his character. In addition to
his own vigorous denial he has presented an affidavit
which shows that the records of the Ohio Valley Gen-
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Wood Mowing & Reaping M. Co. v. Toohby. 195
Misc.] Supreme Court, January, 1921.
eral Hospital indicate that he was in fact a patient
at that institution from January 10, 1912, the date of
the alleged holdup, to January 15, 1912. He has also
presented evidence from the Chase Motor Truck Com-
pany, and from Aurin A. Chase, its president, and
from Carleton A. Chase, president of the Fire Trust
and Deposit Company, that he is a man of capacity,
character and integrity. These certificates of char-
acter show that the Chases, at least, reposed, and do
now repose, full faith and confidence in Allen. Thus
a question is presented as to the credibility of the
plaintiff *s general superintendent.
It is not, however, necessary to pass upon the ques-
tion here, or to hold that Allen is an impostor. Accept-
ing all that he says as true his story reflects in no
manner upon the strikers. It is wholly irrelevant to
this controversy; an utter nullity. Therefore it must
be disregarded.
Eliminating then the attacks upon the night fireman
and the superintendent, what is left? Without these
the strike has been uncommonly orderly and tem-
perate — almost tame. This impression is particularly
confirmed by the affidavit of Corporal Harold C. Her-
rick, the officer in command of the state troopers called
to Hoosick Falls for the very purpose of watching the
strikers and preserving order. After giving his
observations in some detail he concludes by saying
*' that the general conduct of the strikers at all times
during said period (twelve days) was beyond criti-
cism." The station agent of the Boston and Maine
Railroad, and the baggage master, and a newspaper
reporter, all disinterested spectators, concur with Cor-
poral Herrick in commending the quiet, orderly aspect
of the strike.
Denuded of all impertinent matter, therefore, and
reduced to a sediment^ the charge against the working-
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196 Wood Mowing & Reaping M. Co. v. Toohbt.
Supreme Court, January, 1921. [Vol. 114.
men is this: They have gone on a strike and have
resorted to picketing; that is, they have been trying
to persuade others not to take their places. This is
the ** head and front of their offending.*' This is not
- enough.
It is urged that the injunction will do no harm
because the defendants are to be restrained only from
doing unlawful acts and perpetrating crime. But the
citizen cannot be restrained from doing an unlawful
act until there is evidence that he intends to do such
an act. It casts opprobrium upon a person to assume
that he will commit crime. And, in any event, equity
has no criminal jurisdiction. An injunction order is
no menace to criminals. Felons cannot be deterred
from crime by injunction. The Penal Law is a stand-
ing injunction against crime. The penalties for crime
are tenfold more severe than the chastisement for con-
tempt of court. If the defendants are committing
crime, the quick, summary, regular remedy is arrest
and prosecution.
Many publicists and some jurists have taken the
position that injunctions ought never to issue in labor
disputes. The congress of the United States has
nearly said that. I should not want to go quite to that
length. Lawlessness and violence ought, perhaps, in
an extreme case, to be restrained by injunction, but the
courts should not carelessly cast the weight of their
mandates into the strife between employers and
employees.
In an evenly balanced, bitter, long drawn out labor
struggle, an edict of the court, leveled at the strikers,
shakes the morale of the workingmen. This is not the
purpose of an injunction, although it is frequently,
and perhaps generally, the purpose of the employer
who seeks it. The function of an injunction order in
a labor dispute is to restrain lawlessness, when there
is lawlessness, and when this is likely to cause irre-
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Wood Mowing & Reaping M. Co. v. Toohby. 197
Misc.] Supreme Court, January, 1921.
imrable damage. When there is no lawlessness^ and
no proper grounds to apprehend it, there should be no
injunction. The courts do not take sides in this cease-
less struggle between capital and labor. They stand
indifferent. They intervene only when the law is
trampled upon. They interpose the arm of authority
only to restrain those who invade the rights of others.
The moral effect of an injunction order in such cases
is tremendous. At once it gives the impression in the
community that the strikers have violated the law.
The court seems to have taken a hand in the struggle.
This is the laymen's vijBW. The injunction, thus shap-
ing public opinion, is often decisive.
In exercising its discretion the court cannot shut its
eyes to this aspect of the case or ignore the far-reach-
ing psychic effect of its mandate. Therefore, if equity
is to be done, the greatest caution should be observed
in issuing injunctions in strikes. There should be
grave provocation. Strained constructions of the
words employed by strikers is not enough. Surmise
and suspicion are not sufficient. Unusual vigor of
speech among the strikers, now and then, or grou
of laborers assembled, here and there, will not su
Injunctions cannot rest in such grave controver'sies
upon such trivial foundations. And of coursie it is
idle to contend that the depredations of unidentified
miscreants, or the crimes of unknown criminals, can
move a court of equity to issue an injunction in any
case against any citizen.
In view of this reasoning I have concluded that the
injunction order should be vacated in every particular;
but I think I ought to add that the defendants should
not construe this as a grant of license to them. Any
excesses or violence or depredations or destruction
of property will result instantly in another injunction.
Ordered accordingly.
Digitized by VjOOQIC
198 Kemmsugk v. Kemmbiigk.
Supreme Court, Jannary, 192L [Vol. 114.
Josephine ElEMmeuck, a Lxuiaticy by Edwabd Gt.
KoREK, Appointed next Friend of Said Josephine
E^MMELiOEy a Lunatic, Plaintiff, v. Louis Ejbmme-
UGE, Defendant.
(Supreme Court, Erie Special Term, January, 1921.)
AetioBB — when may not be maintained by alleged "next
friend " of a lunatic — marriage — default — evidence —
partiea — Oode Oiv. Pro. § 1748.
An action by the ''next friend" of a lunatic as permitted
by section 1748 of the Code of Civil Procedure, i^ould be
brought and prosecuted in the name of the '' next friend " and
not in the name of the lunatic. (P. 200.)
Upon a petition setting forth the alleged insanity of a wife
an order was made and entered appointing petitioner as
''next friend" for the purpose of maintaining an action for
the annulment of the marriage of plaintiff to defendant. Upon
application for judgment as by default it appeared in answer
to questions asked by the court, that the petition was pre-
sented and the action brought at the request of defendant
and that instead of being the ''next friend" of the wife, the
plaintiff all the time had been acting as the ''next" and best
friend of the defendant. Held, that the application for judg-
ment should be denied. (P. 199.)
Where, notwithstanding queer and peculiar acts on the part
of the wife shortly after the marriage, it appears that they
lived together for four years before she was declared insane,
and had two children, and the evidence does not justify a
finding that she did not at the time of the marriage understand
the nature, effect and consequences thereof, the annulment will
be denied even though all other reasons for rejecting the
application for judgment should fail. (P. 202.)
The order in this case " that an action may be maintained "
by plaintiff as "next friend" did not authorize the bringing
of the action by him without making the wife a party defendant
(P. 201.)
AonoN for the annulment of a marriage.
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Kemmeugk v. E^emmeugk* 199
Misc.] Supreme Courts January, 1921.
Wheeleb, J, This action is brought to animl the
marriage between the plaintiff and the defendant on
the alleged ground that at the time the marriage took
plaoe in November, 1908, the plaintiff was a lunatic,
and her insanity is incurable.
On the 17th day of December, 1920, Edward Gt.
Koren presented a petition to this court setting forth
the alleged insanity of the plaintlT, and asking that
an order be granted appointing him as next friend of
the plaintiff ** for purpose of maintaining this action
for the annulment of the marriage, pursuant to sec-
tions 1747 and 1748 of the Code of Civil Procedure/'
On this petition an order was made and entered pro-
viding ** that an action may be maintained by Edward
G. Koren as next friend of Josephine Kenamelick ''
for the anulment here asked.
Thereupon this action was brought in the form
indicated in the caption to the action. No answer was
interposed by the defendant, and the plaintiff then
proceeded before this court to give evidence for the
purpose of obtaining judgment asked as by default.
The proceeding was so unusual that the court
proceeded to ai^k questions for itself, on the hearing.
It then developed that Koren, the so-called next
friend of the plaintiff, presented the petition and
brought this action at the request of the defendant
himself. The defendant on the witness stand testified
to the same thing. It thus appears that instead of
being the **next friend*' of the plaintiff Koren all
the time in fact has been acting as the ** next *' and
best friend of the defendant, and without seriously
considering the real and true interests of the plaintiff.
Under these circumstances this court ought not to
grant the annulment asked.
The case of Reed v. Reed, 106 Misc. Rep. 85, holds
that an action to annul a marriage on the ground of
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200 Kemmeuge v. Kemmeiigk.
Supreme Court, Jannary, 1921. [Vol. 114.
the insanity of a party to it can only be maintained
by the lunatic, and cannot be maintained by the other
party to it.
In that opinion Mr. Justice Hinman discusses the
proper construction to be placed on the various sec-
tions of the Code of Civil Procedure relating to such
actions, and reaches the conclusion stated above.
It was to avoid the force and effect of this decision
that the defendant in this action undertook to get
around his own disqualification to bring an action for
annulment by procuring the action to be prosecuted
against himself by an alleged ** next ** friend. We
do not think the court should tolerate this practice.
We are unable to discover how the interests of the
plaintiff can be advanced in any way by an annulment
of the marriage. On the other hand we can well see
how the interests of the alleged defendant may be
served by such an annulment, which would relieve
him of the duties and obligations of a husband to the
xmfortunate plaintiff.
On principles of justice and equity we think the
court should not permit itself to be used for any such
purpose.
Independent of these considerations we are of the
opinion the action is not well brought.
We are of the opinion that if an action is to be
brought by the ** next friend ** of a lunatic, as per-
mitted by section 1748 of the Code of Civil Procedure,
the action should be brought and prosecuted in the
name of the **next'* friend, for the purpose named,
and not in the name of the lunatic.
This, indeed, seems to be the practice pursued in
other cases. Coddington v. Lamer, 75 App. Div. 532;
Meekins v. Kvnsella, 152 id. 32; Anderson v. HickSj
150 id. 289.
jSo too in actions brought by a parent, pursuant to
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KeMMELJCK v. KjlMMEliC^. 201
Midc.] Supreme Court, January, 1921.
section 1744 of the Code, to annul the marriage of a
child on the ground such child had not reached the
age of legal consent. Fero v. Fero, 62 App. Div. 470.
In such an action where the action is prosecuted by
the *' next friend *' of the lunatic the lunatic becomes
a necessary party defendant, and the case cannot pro-
ceed without such lunatic being brought into court.
Coddington v. Lamer, 75 App. Div. 293; Anderson v.
Hicks, 150 id. 293.
In the latter case the court said: ^^ But the plain-
tiff suing as a relative does not stand in the shoes of
the alleged lunatic as to represent him hy substitu-
tion.'- Neither does the '' next friend " represent the
lunatic so *^ as to represent her hy substitution.''
The order of the court permitting an action to be
brought is nothing more than permission to sue. The
insane and infants are in a sense regarded as the
wards of the court and permission to bring suit
fiiimply authorizes suit brought in the proper way with
the proper defendants, and to reach the case in hand
included the lunatic as a party defendant. The order
made may be likened to one permitting a party to sue
a receiver appointed by the court.
The same rule requiring the lunatic to be made
defendant has been repeatedly held to be the law in
cases where a parent brings an action to annul a
marriage made by the child before reaefhing the age of
consent. Fero v. FerOy 62 App. Div. 470; Wood v.
Baker, 43 Misc. Rep. 310.
An examination of the order made permitting action
to be brought to annul the marriage in this case in no
way departed from the rule. It was an order '* that an
action may be maintained by Edward G. Koren as
next friend.^' It did not authorize the action to be
brought in the name of the plaintiff without making
the insane person a party defendant
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202 Kemmblioe v. Kemmelice.
Supreme Court, January, 1921. [Vol: 114.
To grant an annulment in this case wonld be to dis-
pense with the safeguards which the law throws
around judicial proceedings for the protection of the
helpless and incompetent.
It might be further said that in our judgment the
proof fails to make out a satisfactory case even though
all the other reasons for rejecting the application for
judgment should fail. Mere insane delusions or
hallucinations are not sufficient in and of themselves
to annul a marriage, but before such a contract can be
(»tncelled on the ground of lunacy or for want of
understanding it must be satisfactorily shown that the
party in whose interest or right the action is brought
was mentally incapable of understanding the nature,
effect and consequences of the marriage. Meekins v.
Kinsella, 152 App. Div. 36, and cases cited.
I do not think the evidence establishes such a ca^.
It is true certain queer and peculiar acts on the part of
the wife are testified shortly after the marriage to the
defendant, but they lived together for some four years
after the marriage before she was declared insane.
She bore him two children, and I do not think the
evidence adduced would justify the court in finding the
wife did not at the time of her marriage understand
the nature, effect and consequences of the marriage.
For these reasons the application for judgment must
be denied.
Application denied.
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Matter of Cutler. 203
Mise.] Smrogate'B Court, Queens County, January, 1921.
Matter of Proving the Last Will and Testament of
Lillian Yonosk Cutler, Deceafled, as a Will of Beal
and Personal Property.
(Surrogate's Court, Queens County, January, 1921.)
Wins — when probate decreed — husband and wife — Decedent
Estate Law, § 85.
Upon the death of a wife in this state, her last will and
testament, executed in another state while she was unmarried,
may be admitted to probate in this state, under section 35 of
the Decedent Estate Law, though her surviving husband was
not mentioned in the will.
Proceeding upon the probate of a wilL
Elmer E. Studley, for petitioner.
Carl Graff, for contestant.
NoRLE, S. The instrument offered for probate in
this proceeding was executed by the decedent, who
was then unmarried, on August 12, 1903, in the state
of New Jersey, where the decedent then resided.
On March 28, 1908, the decedent was duly married
to Edgar G. Cutler, and shortly afterward sheand
her said husband moved into the state of New Tork,
of which state she was a resident at the time>6f her
death, August 20, 1920. ^^
The husband, Edgar G. Cutler, is not mentioned
in the said instrument.
No issue was bom of this marriage, but besides her
husband the decedent left surviving her Marie
Yongen Heatly, a daughter by a previous marriage,
who is of full age.
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204 Matter of Cutler.
Surrogate's Court, Queens County, January, 1921. [VoL 114
Objection was made to the probate of the said
instrument by Edgar Ot. Cutler, husband, on the
ground that it is void under section 36 of the Decedent
Estate Law.
At the time the instrument was executed section
36 of the Decedent Estate Law was in effect, and
provided as follows: '*A will executed by an unmar-
ried woman shall be deemed revoked by her subse-
quent marriage.'*
At the time of the death of the decedent, however,
section 36 of the Decedent Estate Law was not ia
. effect, having been repealed by Laws of 1919, chapter
293, section 1, in effect September 1, 1919, which
provided as follows:
** § 35. Revocation by marriage. If after making
any will, such testator marries, and the husband or
wife, or any isisue of such marriage, survives the testa-
tor, such will shall be deemed revoked as to them,
unless provision shall have been made for them by
some settlement, or they shall be provided for in the
will, or in such way mentioned therein as to show an
intention not to make such provision; and such sur-
viving husband or wife, and the issue of such mar-
riage, shall be entitled to the same rights in, and to
the same share or portion of the estate of said testator
as they would have been, if such will had not been
made. No evidence to rebut such presumption of
revocation shall be received, except as herein
provided.**
There is no dispute as to the facts in the case and
the question to be decided is whether the law govern-
ing the making of a will by the said decedent and its
validity was that in effect at the time of the execu-
tion of the instrument, or that in effect at the time
of her death.
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Matter of Cutler. 206
Misc.] Surrogate's Court, Queens County, January, 1921.
There is nothing in section 35 of the Decedent
Estate Law which makes it retroactive, or limits its
application in any way.
In Moultrie v. Hunt, 23 N. Y. 394, the Court of
Appeals, referring to a will, say : '* It is of the essence
of a will that until the testatrix's death it is ambula-
tory and revocable. No rights of property or powers
over property were conferred upon any one by the
execution of this instrument, nor were the estate,
interest or rights of the testator in his property in
any way abridged or qualified by that act. The trans-
action was in its nature inchoate and provisional; it
prescribed the rules by which his succession should
be governed, provided he did not change his deter-
mination in his lifetime.*' See also Ohecny v. Qoetz,
116 App. Div. 807, and cases therein cited, and also
Matter of Tone, 186 id. 363.
A will being ambulatory and not taking effect xmtil
the death of its maker, I am of the opinion that the
law to be applied is that in force at the time of the
death of the decedent, namely, section 35 of the
Decedent Estate Law, and that, therefore, the instru-
ment here offered for probate should be admitted,
subject to the provisions of said section 35, and that
letters testamentary be issued accordingly.
Probate decreed.
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206 BuoKLEY V. Shabpe.
SnpreEira Court, January, 1921. [VoL 114.
BiANCHB BuoKLETy Plaintiff, v. BuDDiNGTON Shabpb,
as Sheriflf of the Caimty of Rensselaer, Defendant.
Matter of the Application of Buddington Sharpe,
as Sheriflf of Rensselaer County, for an Order
Allowing the Deposit in Court of Moneys Received
from Sales of Property Belonging to Albebt Q.
BnOKl4BT.
(Supreme Court, Albany Special Term, January, 1921.)
SlieriffB — duties of — execationa — when motion for an order
permittittg aheriif to deposit in conrt before the return day
the proceeds of execution sales granted — judgments —
General Bules of Practice, rale 6— Oode Oiy. Pro. § 723.
It is the well-settled law of this state that it is the duty
of the sheriff, not only to collect the moneys due upon an
execution by the return day thereof, but to bring the same
into court, or pay it over to the plaintiff or his attorney by
such return day. (P. 206.)
A sheriff, having in his hands sufficient funds, the proceeds
of sales of property under an execution, to pay the plaintiff's
judgment in full, was served with a notice by the tnistee under
a trust agreement purporting to have been signed by plaintiff,
under which the trustee claimed to be entitled to the money due
on the plaintiff's judgment and execution. The trustee denied
that the trust agreement had been abandoned, as claimed by
plaintiff. Held, that a motion by the sheriff for an order
permitting him to deposit in court before the return day of
the execution, the proceeds of the execution sales and be
absolved from further responsibility in relation thereto, will be
granted, and the issue as to the ownership of the moneys
determined either in an action by the trustee to enforce the
trust agreement or by an action brought by the judgment
creditor, to set it aside (Pp. 211-213.)
Had the time for the return of the execution expired, the
judgment creditor's remedy would have been either to com-
pel a return by the sheriff under rule 6 of the General Rules
of Practice, or to bring an action for damages against him.
(P. 213.)
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Buckley v. Shabpb. 207
Mise.] Supreme Court, January, 1921.
The mistake of entitling the motion papers, in the action
brought against him as sheriff by one of the judgment credi-
tors, is a mere irregularity which the court under section 723
of the Code of Civil Procedure may correct, where the sub-
stantial rights of other parties in interest are not affected.
(P. 212.)
The claims of the judgment and attachment creditors of the
judgment debtor cannot be settled on this motion, although
they have been served with notice thereof, for the right of the
party claiming the money being in doubt, the court will rele-
gate her to her action. (Id.)
Application by the sheriflf of Rensselaer county for
an order allowing the deposit in court of moneys
received from sales of property.
Craymer & Donohne, for plaintiff and others.
Herbert F. Boy, for defendant Sharpe.
Abbott H. Jones, for Edward Dwyer.
Herbert A. Van Kirk, for Greenwich Bank.
W. S. Ostrander, for George B. Little, tmstee, etc
HiNMAN, J. This is an application by a sheriff
having charge of attachments and executions against
a judgment debtor for an order permitting him to
deposit with the court or the clerk thereof, any and all
proceeds of sales in attachments and executions pre-
viously levied by him and now in his hands to await
the determination of conflicting rights and priorities
of the various attaching and execution creditors.
It is unnecessary to review all of the facts and
details in relation to these various attachments and
executions. It is sufficient that the plaintiff has recov-
ered a judgment and has issued an execution which is
in the hands of the sheriff and that there are sufficient
funds to pay the plaintiff ^s judgment in full, but con-
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208 Buckley v. Shabpe.
Supreme Court, January, 1921. [Vol. 114.
jflict has arisen over the right of the plaintiff to enjoy
the proceeds of such execution. The sheriff has been
served with a notice by George E. Little, as trustee,
under a trust agreement purporting to have been
signed by the plaintiff under which he claims to be
entitled to <tie money due on the plaintiff's judgment
and execution. The claim of the plaintiff is that the
alleged agreement was abandoned. This, however,
seems to be denied by the trustee, who is pressing his
claim to the right, as such trustee, to the moneys due
und*er the plaintiff's judgment and execution.
Notice of the sheriff's application for this order has
apparently been given to the various judgment credi-
tors of Albert G. Buckley, judgment debtor.
The attorneys for the plaintiff in the action of
Buckley v. Sharpe raise the point that the court has
no power to entertain such a motion and to direct the
payment of the money into court as prayed for by
the sheriff, and they contend that the sheriff has no
option under the Code but to pay the money in satis-
faction of the judgments in the order of priority in
which the warrants of attachment were issued.
My investigation with reference to this contention
demonstrates what is occasionally the case, that a
proposition of law has been so thoroughly settled over
such a long period of time ^hat the principle of the
law has been lost to view so completely that it is not
easy to find the authorities sustaining it.
It is the well settled law of this state that it is the
duty of the sheriff, not only to collect the moneys due
upon an execution by the return day thereof, but to
bring the same into court, or pay the same over to
the plaintiff or his attorney by such return day. This
alternative remedy of the sheriff to bring the moneys
into court has apparently existed from early times in
this state and is the law of the state today. Crocker
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Buckley v. Sharpe. 209
Misc.] Supreme Court, January, 1921.
Sheriffs (3d ed.), § 424; Smith Sheriffs, 405; Nelson
V. Kerry 59 N. T. 224; MUls v. Davis, 53 id. 349;
Parker v. Bradley, 46 N. Y. Super. Ct. 244; Phillips v.
Wheeler, 2 Him, 603; affd., 67 N. Y. 104; Brewster v.
Few Ness, 18 Johns. 133; Code Civ. Pro. § 1366.
The story leading up to the establishment of this
principle is weU set forili in Smith on Sheriffs,
Coroners and Constables at page 405. In as much as
this work was published in 1883 and may not be avail-
able generally a quotation from the same may be
valuable. It reads as follows:
** Disposition of Proceeds. — Formeriy, in strict-
ness, moneys collected upon an execution by a sheriff
were to be brought into couri;. Afterward it became
a sufficient answer for a sheriff, when sued for not
bringing the moneys into court, to say that he had
paid them over into the hands of the execution credi-
tor. And, latterly, the general practice has been to
pay the proceeds to the execution creditor, or to his
attorney. There is no statute governing the subject,
and, in this regard, expressly pointing out the sheriff's
duty. But the practice has been from the earlier
times, for the sheriff to bring the money into court.
And this practice is good even at the present time. If
there can be no doubt as to who is entitled to the
proceeds, the sheriff should pay them over to the one
entitled to receive them, or to his attorney. But if
there be doubt, if there be adverse claimants of the
proceeds, the sheriff is not bound, at his peril, to
determine the matter, nor need he apply to the court
for direction and protection. He may, with the execu-
tion and as part of the return thereof, deliver the
proceeds to the clerk of the county where the execu-
tion is to be returned. This is a payment of the
money into court. Und^er the Code the money might
be paid by the sheriff directly to the county treasurer,
14
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210 Buckley v. Sharpb.
Supreme Court, Januarji 1921. [Vol. 114.
It is better, however, to return the money with the
execution to the county clerk, when it is desired to
bring the proceeds into court/'
The leading authority cited by Smith as sustaining
the foregoing is the case of Nelson v. Kerr, supra, in
which the Court of Appeals, per Andrews, J. says;
'* Since the case of Brewster v. Va/n Ness, the doctrine
there stated has been considered the settled law in
this State, and no case has been cited in which it has
been questioned. Nor is it perceived that the change
in the form of the execution, since the Code, calls for
any change of the rule declared in that case. The
sheriff has the same means of protecting himself from
liability. He may still bring the money into court
with his writ, or pay it over to the plaintiff in the
execution. The clerks of the several counties are
clerks of the court, and the clerk with whom the judg*
ment roll is filed, and where the execution is to be
returned, is the proper officer to receive the money,
and payment by a sheriff to him is payment into court.
If paid to him, he holds it for the party entitled to
receive it. There is no statute authorizing a sheriff
to pay money collected on execution into court, nor,
80 far as I know, has there ever been, but the prac-
tice has prevailed from early times. In Bacon's
Abridgment (tit. Execution, C), it is said: ' Upon
a writ of fi. fa., the sheriff cannot deliver the goods
of the defendant to the plaintiff in satisfaction of his
debt, but the goods are to be sold, and the money,
in strictnesif^, is to be brought into court.'
** It is true that the sheriff, by the former writ in
use in this State, was commanded to bring the money
* before our justice,' etc., on the return day, and so
were the ancient precedents. But we have not found
any authority for the proposition that the mandate
of the writ was the sole ground upon which the sheriff
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BuoKLBY V. Sharps. 211
Mise.] Supreme Courfc, Jannftry, 1921.
was entitled to bring the money into court, in dis-
charge of his liability. Forms of writs furnish strong
evidence of what the law was when they were devised,
and of the duty of the officer to whom they are
directed. And it may well be supposed that the right
of the sheriff to bring money collected on process into
court, was established when the precedents of execu-
tions referred to were framed, in view of the mani-
fest justice or convenience of the practice. Section
290 of the Code declares that an execution shall be
returnable within sixty days after its receipt by the
officer, to the derk with whom the record of judgment
is filed. This is the only section defining the duty
of the sheriff upon the subject, and under it the sheriff
may, I think, pay the money collected to the clerk, as a
part of the return therein provided, although no
special mention is made of it in the writ.''
The portion of section 290 of the old Code referred
to in the above decision is now found in section 1366
of the present Code, in which it is provided that, ^^ An
execution • • • must require the sheriff to return
it to the proper derk, within sixty days after the
receipt thereof."
I cannot find that the case of Nelson v. Kerr has
been questioned at any time since it was decided, nor
can I find any statute tending to modify or reverse
the principle there sustained.
It seems that the sheriff need not apply to the court
for direction and protection, but there is ample author-
ity for the application whidi is made by the sheriff
in this case. The practice was recognized as proper
in the case of PhUlips v. Wheeler, supra^ in which it
was held that where there was controversy over the
proceeds in the hands of the sheriff and he desired* to
know what to do with them, he could apply to the
Supreme Court for direction. It seems, however, that
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212 Buckley v. Shaepb,
Supreme Courts January, 1921. [Vol. 114.
in such a case the application of the sheriff is made
as a motion in all of the actions in which judgments
have been obtained, and in which the judgment cred-
itors become adverse claimants to the proceeds in his
hands, and if the judgments happen to have been
obtained in more than one judicial district, that the
sheriff may apply to the Supreme Court in his own
county for directions, notwithstanding that the Code
provides that motions upon notice must be made in
the county in which the action is triable or in the
county adjoining that in which it is triable. Phillips
V. Wheeler, supra.
The sheriff has entitled his papers in this motion
in the action brought against him, as sheriff, by
Blanche Buckley, one of the judgment creditors. This,
however, is a mistake or irregularity which the court
under section 723 of the Code, is empowered to over-
look and correct, where the substantial rights of other
parties in interest are not affected. I believe that it
is my duty to permit this correction to be made in
view of the fact that it seems to be conceded by the
attorney for the plaintiff and all others appearing
before me, that notice of the application has been
given to all of the judgment creditors in interest.
Having decided that I wiU entertain the applica-
tion and i>ermit this correction to be made, entitling the
application in all of the several actions affected, it
may be well for me to intimate still further the
resulting status of the parties affected by this decision.
I think it is clear as was said by the court in the
case of Wilson v. Wright^ 9 How. Pr. 459, that the
adverse claims of the judgment and attachment cred-
itors cannot be settled upon this motion. For,
wherever the right of the party claiming the money is
in doubt, the court will refuse to interfere on motion
and will turn him over to his action.
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Buckley v. Sharpb, 213
Mise.] Supreme Court, January, 1921.
Upon the payment of these moneys into court by
depositing them in connection with the return with
the clerk of the court in ax;cordance with the fore-
going authorities, it would seem to me that the ques-
tion at issue as to the ownership of these moneys
would properly be determined in an action by the
trustee to enforce the said agreement or by the judg-
ment creditor, Blanche Buckley, to set it aside.
The action of Blanche Buckley against the aheriff
seems to have been prematurely brought in view of
the fact that the time has not yet expired to require
him to make his return. If that time had expired
the plaintiff would have a remedy either to compel
a return under rule 6 of the General Rules of Practice,
or to bring such an action for damages against the
sheriff.
In view of the fact that the return day has not yet
arrived and the sheriff has the right to pay these
moneys into court voluntarily or by order of the court,
the remedy of the plaintiff, Blanche Buckley, is not in
an action against the sheriff or an order in an attach-
ment proceeding under rule 6, but to have the issue
determined in an action between the parties interested.
Upon the payment of the moneys into court before
the return day, the sheriff will be absolved from all
further responsibility.
The motion is granted, with ten dollars costs
Motion granted, with ten dollars costs.
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214 Matter of Central UifiON Trust Co.
Supreme Court, January, ld2L [Vol. 114.
Matter of the Application of Central Union Trust
Company of New York, as Trustee tinder the Will
of Laura A. Delano, Deceased, of the Several Trusts
by Said Will Created for the Benefit of John Arm-
strong Chanlbr, Winthrop Astor Chanler, Eliza-
beth WiNTHROP Chapman, William Astor Chan-
ler, Loins Stutyesant Chanler, Margaret Living-
ston Aldrich, Robert Winthrop Chanler and
AtiTda Beeeman Emmet, Eespectively, for Leave to
Sell Certain Eeal Estate Pursuant to Sections 106
and 107 of the Real Property Law.
(Supreme Conrt^ New York Special Term, Jannarji 1921.)
Seal Property Law, §§ 106, 107— when sale of zeal estate hy a
teetamentary trustee will be approved — evidence.
A eale of real eetate by a testamentary tmstee pursuant to
leave granted under sections 105 and 107 of the Real Prop-
erty Law will not be rejected, because, pending the applica-
tion for leave to sell and a hearing thereon, there has been an
increase in values. The sale will be approved at the price
offered, which the testimony shows to have been fair when
made and accepted subject to the approval of the court.
Application by a trustee to sell certain real estate.
Miller, Bong, Lane & Trafford (James Gore King
and Walcott P. Bobbins, of counsel), for Central
Union Trust Company of New York, as trustee, etc,
petitioner.
Egerton L. Winthrop, Jr., guardian ad Utem for
Christopher Temple Emmet and others.
Egerton L. Winthrop, guardian ad Utem for C. T.
Emmet, Jr., and others.
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Mati?eb of CBNTBAii Union Trust Co. 215
Misc.] Supreme Court, January , 1921.
Charles A. Bunk, as a friend of the oonrt.
William Bondy, referee.
McAvoYy J. All of the testimony has been read.
The views of the experts are highly speculative and
as usual give ground for assuming that they were
srubject to change within the month if realty conditions
were less abnormal than at the time of testimony. I do
not agree with the referee that sale ought to be
rejected because a forward leap in values has been
made pending the application to the court for leave to
sell and the hearing thereon. Such a rule carries
with it a great detriment to and a lack of stability in
the results of these proceedings. If the bargain is
good when made the court ought to give the advantage
to the buyer. The seller has all that he intended to
get and cannot ask more. Neither should a court
adopt an attitude which in effect says to the bargainer :
You may have the land if we do not find a way to
repudiate the contract through eecuring a higher bid.
After promising to convey to a buyer if the bargain
be approved by the court, the time of value taking is
the date of the contract. Any other rule is unwork-
able, leads to temerity in making these sales by
trustees where there are infant remaindermen and
would inhibit the sale of almost any land which had
the prospect of a use pending a costly, lengthy and
difficult proceeding. The sale will be approved as of
the price offered which the testimony shows to have
been fair when made and accepted subject to judicial
approval, and to have been inflated as of the date of
the reference by an unusual demand not necessarily
likely to continue.
Ordered aioooidingly.
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216 People ex bel. Mullen Cont. Co., Inc., v. Craig.
Supreme Court, January, 1921. [Vol. 114.
The People ex rel. H. J. Mullen Contracting Com-
pany, Inc., Relator, v. Charles L. Craig, as Comp-
troller of the City of New York, John F. Hylan,
ae Mayor of the City of N«w York, and Philip
Berolzheimer, as Chamberlain of the City of New
York, BespondentB.
(Supreme Court, Kings Special Term, January, 1921.)
MandamnB — when denied against comptroUer of the city of
New York — contracts — municipal corporations — f rand —
Qreater New York Charter, §§ 149, 419.
Mandamus lies against publio officers to compel the per-
formance of ministerial duties which are clearly absolute and
imperatiya (P. 217.)
Where although the various engineers and auditors whose
duty it is, as a condition precedent to the issuance of a warrant
of the city of New York on account of work done pursuant to
a municipal contract involving an expenditure of more than
$1,000, to examine into the matter, have certified that work of
the character and quantity entitling a contractor to receive a
progress payment in a certain sum, has been done, the city
comptroller may delay payment pending an examination by
him under section 149 of the Greater New York Charter of
the contractor under oath with respect to facts and circum-
stances surrounding the public letting of the contract, in order
to determine whether it wae of the character provided in sec-
tion 419 of the Greater New York Charter, and whether there
was collusion in the bidding or fraud in the performance of
the eontraet (Pp. 222, 223.)
Where the contractor refuses to fully submit to such an
examination, his application for a writ of peremptory man-
damus to compel the iseuanee of the warrant will be denied
as matter of discretion. (P. 225.)
The exception in said section 149 of the Greater New York
Charter which refers to '^ claims arising under the provisions
of contracts made at public letting in the manner provided by
section 419 of this act" was intended only to prevent an
inquiry into the manner in which a contract validly entered
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Google
People ex bel. Mullen Cont. Co., Inc., v. Craig. 21 7
Misc.] Supreme Court, January, 1921.
into by the city has been performed, and not to one where
the circumstances indicate that the contract originated in
fraud ; the exception, therefore, is not controlling in the present
case. (P. 224.)
Applicamon for a writ of mand'amuiS.
John C. Wait, for relator.
John P. O'Brien, corporation counsel, for respond-
ents.
Charies L. Craig, comptroller of the city of New
York, in x>er»on.
Benedict, J. This is an appKcation for a writ of
mandamnfl requiring the comptroller to deliver to the
relator a warrant of the city of New York for $35,244
on an account of work done under a contract for
regulating, paving, etc.. Third avenue from First to
Thirteenth streets. College Point, borough of Queens.
The writ of mandamus, generally speaking, issues
only in cases where there m a clear legal right in the
relator and there is no other adequate and legal means
to obtain it. In the case of public officers it issues
to compel the perf ormanoe of ministerial duties which
are clearly enjoined as absolute and imperative. The
writ is prerogative in its character to the extent that
its issue is not of right but of discretion. People ex rel.
McMachin v. Police Commissioners y 107 N. Y. 235;
People ex rel. Faile v. Ferris, 76 id. 329. The discretion
to be exercised is a judicial one. People ex rel. Gas-
Light Go. v. Gommon Gouncil, 78 N. Y. 56 ; Shepard v.
Oakley, 181 id. 339; People ex rel. McClelland v.
Bowling, 55 Barb. 197.
The present application involves the question
wbetlwr, under the charter of the city of New York,
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Zl8 People ex rel. Mullen Cont. Co., Inc., v. Craig.
Supreme Court, January, 1921. [Vol. 114.
the comptroller has the i)ower to exercise any judg-
ment or discretion regarding the payment of claims
against the city of New York aritedng under contracts,
or whether he is merely the custodian of the city's
f undis and obliged to pay therefrom ajiy and all claims
againist the city upon contracts which have been made
after public letting. The facts in the case are set out
at considerable length in the petition and affidavits
of the relator and in the answering affidavits sub-
mitted on behalf of the respondent. It will not be
necesisary to recite them in detail here. The contract
referred to in the petition was on-e entered into after
compliance with the charter forms and provisions
regulating the giving out of contracts by public let-
ting. The relator contends that the comptroller ils
precluded from any inquiry under section 149 of the
charter to ascertain whetheir in point of fact there has
been a valid contract awarded at a public letting of
the dbaracter provided in sedtion 419 of the charter.
If the relator be correct in that proposition, then the
comptroller is stripped of all power to conduct any
inquiry into the validity of suich a claim further than
to ascertain from the reports of various officials
Wihetiher tiie \\x)rk required to be done by the contract
has been done in the manner therein prescribed.
In the present case it has been certified by the
various engineers, or auditors, whose duty it is to
examine into the matter as a condition precedent to the
preparation of the warrant, that work of the char-
acter and quantity entitling the claimant to receive the
progress payment in the sum of $35,244 has been dkme
by the contractor.
The only question, therefore, which requires solu-
tion in the determination of this application is whether
the comptroller may examine the claimant under oath
with respect to facts and circumstan^oes surrounding
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People ex bbl. MuiiLen Cont. Co., Inc., v. Ceaig. 21 9
Misc.] Supreme Court, January, 1921.
the pmblic letting of the contract in order to ascertain
whether it was of the character provided in section
419 of the charter. If it were, the relator is doubtless
right in ©eeking payncient by means of this writ. Sec-
tion 419 IB the familiar one providing for the public
letting of contracts for work to be done or supplies to
be fumisbed where an expenditure of more than
$1,000 is involved. It confers upon borough presidents
and heads of departments the power, without the con-
eent or api>roval of any other department or officer
of the city government, to award the contract to the
loweeit bidder, unless the board of estimate and appor-
tionment, by a three-fourths vote of the whole board,
shall determine that it iis for the public interest that
a bid other than the lowest sihould be accepted. In
form the contract in question appeaps> to have been
regularly made pursuant to the provisions of the ©ec-
tion referred to.
The charter, by section 149, provides further as
follows: ** • • • The comptroller may require
any i)erfion presenting for settlement an account or
claim for any cause whatever, against the corporation,
to be sworn before him or before either of the deputy
comptrollers, touching such account or claim, and
when so sworn, to answer orally as to any facts relative
to the justness of such account or claim. Willful false
ewearing before the comptroller or deputy comp-
trollers is perjury and punishable as sucL He shaU
settle and adjust all claims in favor of or against the
corporation, and aU accounts in which the corporation
is concerned as debtor or creditor; but in adjusting
and settling such claims, he shall, as far as practicable,
be governed by the rules of law and principles of
equity which prevail in courts of justice. No claim
against the city or against any of the counties con-
tained within its territorial limits, or payable in the
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220 People ex bel. Mullen Cont. Co., Inc., v. Cbaiq.
Supreme Court, January, 1921. [Vol. 114.
first instamce from moneys in the city treasury for
sCTvices rendered or work doiiie or material's or mip-
pKes fumifiiied except (1) claimfli reduced to jiidgment,
or (2) awards, costs, ijhargee and expenses duly taxed
or ordered paid in judicial prooeedingB, or (3) claims'
arising under the provisionB of contracts made at
public letting in the manner provided by section four
hundred and nineteen of this act, or (4) claims settled
and adjusted by the comptroller, pursuant to the
authority of this section, shall be paid unless an
auditor of accounts shall certify that the charges there-
for are just and reasonable; and except as herein-
before otherwise provided, all contracts with the city
or any of such counties or with any public oflScer acting
in its or their behalf, s-hall be subject to such audit
and revision by the department of finance. • * • *'
It appears from the comptroller's affidavit that on
November 11, 1920, a warrant for $35,244 in favor of
the i)etitioner on account of the contract in this pro-
ceeding was made ready by the bureau of audit of
the comptroller's department, and pursuant to the
comptroller's personal direction such warrant was
sent to the comptroller's desk, together with the con-
tract and the voucher upon which such warrant was
based. The comptroller states that this direction was
given by him in order that he might conduct such
further inquiry and perform such duty of supervision
as he felt that he was obliged to discharge for the
protection of the city in this case. He lays particular
stress upon the fact that prior to November 11, 1920,
public charges had been made concerning the alleged
fraudulent character of contracts entered into on
behalf of the city, whereby, under pretense of open
competitive bidding of the ch'araoter contemplated by
section 419 of the charter, collusive and illegal bidding
bad taken place at sums greatly in excess of fair and
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Pbofle ex rel. MuiiLBN CoKT. Co.^ Inc, V* Craig. 221
Mise.] Supreme Court, January, 1921.
reasonable prices for work to be done by contractors
for the city; and in this connection he calls attention,
in a general way, to the proceedings before the joint
legislative committee on houeing, and before grand
juries in the connty of New York, and to the further
fact that nnmerous criminal prosecutions had been
instituted against individuals, firms and corporations
who had theretofore entered into contracts with the
city, oome of which prosecutions had resulted in the
dief endants pleading guilty.
The comptroller shows that certain information
concerning the dis'honest and fraudulent character of
bidding for public work of the city, particularly in
the borough of Queen«, had come to his attention, and
that he had communicated with the heads of the dif-
ferent city departments in regard to it, as well as with
the legislative committee, and that on account of these
facts and of others which he refers to concerning the
relations between this relator and other bidders for
city work he desired to examine the relator through
its president concemdng the claim for which the war-
rant had been asked. He states that he notified Mr.
Mullen, the president of the relator, to submit to an
oral examination under oath before the comptroller
before the warrant would be delivered. He shows
further that the president of the relator appeared for
such examination, which was begun on November 11,
1920, but that before it had been oonduded by the
comptroller, and after Mr. Mullen had testified to
some extent concerning the contract, he requested an
adjoummenit in order that he might produce certain
papers, wihich he said were in his possession, in con-
nection with the contract, and thereupon the examina-
tion waa adjourned in order to enable him to produce
the papers and to obtain further information required
by the comptroller. The president of the relator did
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222 People ex BEii. Muli^en Cont. Co., Inc., v. Craig.
Supreme Court, January, 1921. [Vol. 114^
not, however, return to the comptroller ''S office for
further examiination, and although the comptroller
endeavored for a number of days to get into com-
mmiioation with him, he never came back for the pur-
pose of continuing the exjamination, and such examina-
tion has never been concluded. Extracts from his
testimony are contained in the comptroller's affidavit.
In view of all these circumstances and the relations
existing between the relator and certain materialmen
referred to in the papers, it does not seem to me as
though this were a case where the court ought to
exercise the dinscretion rejwsed ru it to compel the
delivery of the warrant which the comptroller has in
his hands. If a writ of mandamus were to ieisue, it
would be tantamount to a decision by the court that
the comptroller had no right in this case, or in other
similar cases, to conduct the examination of the claim-
ant under section 149 of the charter, for the purpose
of inquiring into the question whether contracts which
are made after public bidding must be regarded as
binding upon the city of New York, even though they
were originally obtained by fraudulent or collusive
means, as the comptroller states that in his opinion
was apparently the case here. I am not prepared to
subscribe to any such doctrine. Fraud and collusion
in obtaining contracts for public work are always a
proper subject of inquiry, and I think that the comp-
troller of the city of New York was not only fully
justified by the facts stated in the papers in the
present case in desiring to prosecute the fullest
possible inquiry into the bona fides of this contract,
but that he would have been derelict in his duty if he
failed to make such inquiry. In the case of public
work running into many millions of dollars each year
it is in the highest degree important for the protec-
tion of the taxpayers of the dity that some official
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People ex rel. MuiiLen Cont. Co., Inc., v. Craig. 223
Misc.] Supreme Court, January, 1921.
should be clothed with the fulleist powers of inquiry
ais to honesty, good faith and fairness of contractors
who bid for public work. As I read the charter, it
was the intention of the legislature not to make the
comptroller of the dty of New York merely an automa-
ton, who must perfunctorily audit and pay all claims
agamst the city which appear on their face to be
regular. Rather I think it must be presumed to have
been the legislative purpose to throw around the public
treasury of the city the highest possible safeguards
ftgaimst fraud or collusion by conferring upon the
comptroller, as the responsible ihead of the fintance
department of the city, the widest jxyssible powers of
investigation into the merits of all claims. This court
should not be astute in finding technical reasons for
limiting or destroying the comptroller's power of
investigation surrounding the letting of the contract
where the circumstances are such as to arouse reason-
able suspicion, nor should it seek to substitute its
judgment for the qiuisi judicial discretion of the comp-
troller in regard to the validity of claims presented to
him in cases where there is any ground for believing
that the contract was obtained by fraud.
The relator does not come before the court with
clean bandis. He has refused to submit fully to the
oral examiniation provided for in section 149 of the
charter. His learned counsel contends that that
examination was extended by the comptroller beyond
its proper scope. In this contention I cannot ngree,
because I think that under the circumstances as dis-
closed the matters upon which information was sought
were pertinent to the examination, and properly came
within the scoi)e of the requirement of section 149,
that he '* answer orally as to any facts relative to
the JTistnjess of such account or claim. ' ' I construe the
exception in section 149 of tbe charter, which refers
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224 People ex bel. Mullen Cont. Co., Inc., v. Craig.
Supreme Court, January, 1921. [Vol. 114.
to '* claim® arising uadea* the provisions of oontraota
made at public letting in lihe miamier provid'ed by
section fonr hundred and nineteen of this act," as not
controlling in the present case. Fraud vitiates all
contracts, and it is inconceivable that the legislature
intended by this exception to create an estoppel
against the city which would prevent an inquiry by
the comptroller into the validity of the contract itself
in cases of fraud. I think that this exception in the
statute was intended only to prevent an inquiry into
the manner in which a contract validly entered into by
the city has been performed, and not to one where
there were circumstances pointing to the probable
conclusion that the contract originated in fraud.
In concluision, I will refer to a few cases where our
courts have had occasion to consider applications
similar to the one now before thiis oooirt. In People
ex rel. Beck v. Coler^ 34 App. Div. 167, Mr. Justice
Cullen, comceding the right of the court to compel
the comptroller by mandamus to pay the amount of
a contract if the right to payment is clear, stated that
the rule would be different if the city repudiated or
denied the existence of the obligation; and he was
particular to emphasize in that case that no allega-
tion whatever of fraud was made. In People ex rel.
Lentilhon v. Coler, 61 App. Div. 223, the Api>ellate
Divi'sioA in the first department went much further,
and held that the payment of a dtebt will be enforced
by mandamus only where upon both the facts and the
law it clearly appears that there camiot be a defense
to the claim, and therefore it confirmed an ordter of the
Special Term denying a motion for a peremptory writ
of mandamus directing the defendant to deliver to
the relator a warrant on the chamberlain for an
amount alleged to be due him under a contract with
the city. The Court of Appeals dismisised the appeal
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Michaels v. Flach. 225
Misc.] Supreme Court, January, 1921.
taken by the relator, Judge Edward T. Bartlett saying
that it was clearly within the discretion of the
Supreme Court to remit the parties to a common-law
action. See 168 N. Y. 6. In People ex rel. Guidet v.
Green, 66 Barb. 630, the General Term in the first
department held that a mandamus will not lie to com-
pel the payment of a money demand on contract where
a proper remedy by action exists, Ingraham, P. J.,
fipaying: ** More especially is sfuoh a rule proper where
the facte upon which the claiim is based are disputed.'*
Mr. Justice Brady, in a concurring opinion, stated
that V Neither in England nor in this state has a man-
damus been allowed where there was a remedy by
action and) a reasonable doubt as to the validity of
the claim, or any conclusion that it should be examined
by due process of law.*'
I am constrained by the foregoing considerations
to deny the present application, and this I do in the
exercise of discretion, with ten dollars costs.
Ordered accordingly.
Theodore MichabLtS, Plaintiff, v. Charles Flach, as
Sole Executor of the Last Will and Testament of
Christopher Kjenzle, Deceased, Defendant,
(Supreme Court, Kings Trial Term, January, 1921.)
Parent and chUd — father cannot be released by separation agree-
ment with wife from obligation to support his infant child
— execntors and administrators — claim against decedent's
estate for support of an infant — accounting — Code Civ.
Pro. §§ 2680, 2681.
The father of an infant is primarily liable for its main-
tenance, and even though by the terms of a separation agree-
ment the mother assumes liability for the infant's maintenance,
during her life, the obligation of the father continues after
the death of the mother until the child becomes of age.
15
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226 Michaels v. Flach.
Supreme Court, January, 1921. [Vol. 114.
A separation agreement in terms released the father from
aU claims for the support and maintenance of his infant son
during the mother's life. At her death the son went to live
with his uncle who, after diligent search, was unahle to locate
the father. The father's will made no provision for the child
who is still a minor. The uncle presented to the executor of
the father's estate a duly verified proof of claim for the main-
tenance, education and support of the infant son for the six
years next succeeding the death of his mother. No notice was
taken of the claim except hy reference in the account of the
executor, filed nearly a year after the presentation of the
daim. Prior to the institution of a proceeding for the judicial
settlement of the accounts of the executor, to which the uncle
was not made a party nor included as a creditor of the estate,
an action to recover the amount of the claim so presented was
brought by the uncle on the theory that the debt sued on was
based upon a claim or debt against defendant's testator as
provided by sections 2680 and 2681 of the Code of Civil Pro-
cedure and the separation agreement was pleaded in bar. It
appeared that no part of the money given by the father to the
mother for the support of herself and child, at the making
of the separation agreement, remained unexpended at the death
of the mother who did not leave sufficient funds to bury her.
Held, that the separation agreement did not release the father
from the payment of plaintiff's claim, was not a bar to the
action and that the plaintiff was entitled to judgment for the
full amount claimed, with interest from the date of grant of
letters testamentary.
Action uxx)n oaiitra<3t.
Patrick J. O'Beime, for plaintiff.
Halbert & Quist, for defendant.
Fawcett, J. This is an action broaght by the plain-
tiff to recover the soim of $2,218 on an implied agree-
ment to pay for the maintenance, education and sup-
jKxrt of John C. Kienzle, the infant ®on of the defend-
ant's testator, from the time said infant son was nine
years of age, when his moth'er, Evelyn Kienzle, died,
up to his sixteenth year. The agreed statement of
twcAB mbxmtted for deciisdon follows:
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MioHAELS V. Flagh. 227
Misc.] Supreme Gourt, Jar iry, 1921.
The plaintiff for the period of time mentioned in the
complaint had control and custody of the infant soai of
the testator and supplied the neoesisaries alleged
therein, and the amount charged for the maintenance
of the infant, to wit, $2,218 was reasonable. That on
May 31, 1904, the father and mother of the child
executed a separation agreement in the 3d paragraph
of whiish it was agreed that for the sum of $4,028 paid
to the mother, the mother released the father from all
claims for support and maintenance of the child dur-
ing her natural life and it was further agreed that
the wife should retain her d*ower interest in the
premises at No. 101 North Ninth street, Brooklyn,
until the father should sell the same and that upon the
sale the father should i>ay to the general guardian of
the infant a sum equal to one-third of the purchase
price, which should be in lieu of dower and said sum
to be used for the maintenance and support of the
infant during hie minority. That upon the said
separation, the infant, being then two years of age,
went to live with his mother and lived with her until
her d^eath on November 9, 1911, when he was nine
years of age. He then went to live with his uncle, the
plaintiff, who made diligent search for the father of
the child without success, and then resided with the
uncle up to the present time. The defendant's testa-
tor, the f ath-er of the child, died December 21, 1917, in
Queens county, leaving a will dated Jun-e 11, 1$14,
which was duly probated and letters testamentary
were issued to the defendant executor on August 9,
1918, which will made no provision for his child. The
estate of the decedent amounted to $19,342.94 of which
$3,750 represents the proceeds of the sale of the prem-
ises at 101 North Ninth street, Brooklyn, by the execu-
tor in December, 1919. A verified proof of claim wa«
duly served upon th« defendant on June 14, 1919, fox;
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228 Michaels v. Flach.
Supreme Court, January, 1921. [Vol. 114.
the sum of $2,218, but said claim wa» neither paid nor
rejected and no notice was taken of it untQ it was
referred to in Schedule G of th-e account filed March
16, 1920. The action upon said claim wa« brought by
the service of a summons and complaint on the defend-
ant on January 3, 1920, and the defendant's answer
set up the separation agreement as a bar. The defend-
ant filed his petition and account for a judicial settle-
ment by the Surrogate's Coxwrt of Queens county on
March 16, 1920, but did not make the plaintiff a party
to said accounting, and no notice of said accounting
was served upon the plaintiff up to the date of the
trial of this action. The said petition did not recognize
the plaintiff as a creditor of the estate although it
provided that aU creditors ehoxdd be set forth in
Schedule D of the account as filed, and it did not con-
tain the name of the plaintiff as a creditor although
his claim had been served on June 14, 1919, and it
distinctly stated that there were no creditors. Sched-
ule G of the account merely referred to the action now
pending between the plaintiff and the defendant with-
out stating whether the claim was accepted or rejected.
It simply stated that the said *' action is now awaiting
trial." While the verified petition in the aoc5ounting
proceedings states that a notice for creditors to present
claims was didy published pursuant to an order of
the Surrogate's Court of Queens county and that all
claims presented had been duly adjusted and paid, the
verified account accompanying the petition and filed
on the same day with the petition, March 16, 1920,
specifically struck out the allegation of a due and
proper advertisement for the presen-tation of claims
by the creditors as required* by section 2677 of the
Code.
The parties waived the determination of the jury
on the facts and defendant moved to diismisB the com-
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Michaels v. Flach. 229
Misc.] Supreme Courts January, 1921.
plaint and for the direction of a verdict npon the
grounds that th-e complaint does not constitute a
eaxtse of action; that the Surrogate's Court has exclu-
sive jurisdiction and that the separation agreement
for the consideration named • therein released the
father from all cJaims such as that sued upon.
The theory of the complaint is that the debt sued
upon was based upon a claim or debt against the
deceased as provided for in atrticle 2, sections 2680
and 2681 of the Code of Civil Procedure. The respon-
sibility for the support of the infant son after the
death of the mother created an obligation which rested
upon the decedent during the period from the decease
of his wife until the child attained his majority. The
liability for the maintenance of the child was imposed
primarily upon the father and even though the mother
asffumed to maintain the said infant during hefr life-
time under the terms of the separation agreement, the
obligation continued against the father after the
decease of the mother at which time the child was but
nine years old, and it continued until he becomes of
age. The law raises an implied promise to pay where
services are necessary for the child, although rendered
without actual request of the parent. The complaint
alleges and it is conceded that upon the death of the
mother a diligent search was made by the plaintiff
for the father of the boy, but he could not be located.
This obviates the necessity of an actual demand. The
father abandoned the child as he never conamunicated
with him from the time of the separation agreement,
nor inquired as to his whereabouts at any time before
or after the death of the mother and wholly failed to
provide for the support of the infant son after the
death of the mother, which was an omission to the
prejudice of the infant by the father who was under
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230 Michaels v. Flagh.
Supreme Court, JanQary, 1921. [VoL 114.
an obligation to erupport hie eon. The complaint^
therefore, ooiusrtdtates a oan^e of action.
PlaiQtiff 'fl proof of claim wa» duly served on Jnne
14, 1919, and altibongh the executor did not file hi» peti-
tion and account until March 16, 1920, he did not either
accept or reject the claim, nor did he take any action
whatsoever upon it. Section 2681 of the Code deprives
a claimant of the right of action iu the Supr^ne Conrt
only where the executor fulfills the dnty imposed upon
him in thie section, by rejecting the claim and serving
notice of rejection. Former sfection 1822 of the Code
and section 2681 which has superseded it are highly
penal and drastic statutes and should be strictly con-
strued. A surrogate can exercise only snch jurisdic-
tion as has been specially conferred by statute,
together with those incidental powers which may be
requisite to effectually carry out the juri-sdiction
actuially granted. Those claiming under the order or
decree of the surrogate must ^ow affirmatively his
authority to make it and the facts which give him
jurisdiction. Previous to the amendment of section
1822 by chapter 595 of the Laws of 1895, a surrogate
had no jurisdiction to hear and determine a rejected
or di'sputed claim against the estate of a decedent and
since that act went into effect the courts have insisted
that only by a strict compliance with the provisions
of the law could there be any jurisdiction of the surro-
gate over a disputed claim. Matter of Martin, 211
N. Y. 328. The legislature did not change the rem-edy
of a claimant where there was no outright rejection
by the executor and neither the plaintiff's nor the
defendant's substantive rights were affected thereby.
Carpenter v. Netvland, 92 Misc. Eep. 596. The statute
expressly reserves the right of a claimant to bring an
action where no rejection has been made or served.
There was no rejection in this case; on the contrary
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Michaels v. FiiACH. 231
Misc.] Supreme Court, January, 1921.
the execuix)r by his eilenoe and failure to acknowledge
the olaim in any way from the time of the service of
the claim June 14, 1919, left the claimant under the
belief that the claim might be admitted and paid. In
the axxjonnting filed on March 16, 1920, by the execu-
tor, he sets forth in Schedule G th^t the action for the
collection of the claim in the Supreme Court is then
pending and that the accounting proceeding is await-
ing the dietermination of that suit, but he does not
include the plaintiff as a creditor in either the petition
or the account and does not make him a party to the
proceeding. Section 2680 does not apply because it
relates to claims admitted and allowed by the executor.
It is only by a rejection of the claim under section
2681 of the Code that a claimant is compelled to either
bring an action within three monthsi or submit his
claim to the Surrogate's Court in the accounting pro-
ceeding. Unless the claim is rejected by the executor
the claiman't has an absolute right to bring an action
in the Supreme Court and its jurisdiction is beyond
question. The claim of the defendant that this court
is without jurisdiction under sections 2680 and 2681
of the Code, is untenable.
The release given by Evelyn Kienzle to her husband,
Christopher Kienzle, and set forth in the 3d para-
graph of the separation agreement, provided that the
amount paid to the mother was for the support, main-
tenance and education of the infant during her natural
life. Even if it be maintained that by a strict interpre-
tation of the language of thi's paragraph of the said
agreement it also purported to release the father from
the obligation to maintain and support the child after
the death of the mother, it was clearly beyond the
jKXwer of the mother to make any binding agreement
releasing the father from the support and maintenance
of the child after the death of the mother es the law
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232 Michaels t;. Flach.
Supreme Court, January, 1921. [Vol. 114.
oast that responsibility upon the father up to the
infant's majority. The provisions of the 4th para-
graph of the siaid oeparajtion agreement did not release
iJhe father from the support of the child beyond the
lifetime of the mother, even though it specifically pro-
vide® that the wife should retain her dower interest
in the premises at No. 101 North Ninth street. The
dower interest of Evelyn Kienzle in the said premises
ceased with her death on November 9, 1911. The one-
third of the purchase price on the sale of the said
premises by the father would be equivalent to the
value of the said dower and therefore there was no
consideration paid by the father under this 4th
paragraph of the agreement, and in view of the fact
that the property was not sold by the father during his
lifetime this part of the agreement was never effec-
tuated. The sum of $4,028 given by the father to the
mother on May 31, 1904, for the support of herself and
their child, was evidently all expended at the time of
the mother's death on November 9, 1911, as it appears
in the affidavit of the plaintiff thait the mother did not
leave sufficient funds to bury her. Hence the support
of the infant after the death of the mother could not
be paid out of her estate since there was no part of th-)
specific sum of $4,028 given by the father to the mother
at the time of making the separation agreement
remaining unexpended at her death. The obligation
rests upon the father to support his own infant son,
even though the infant has an estate of his own. Good-
man v. Alexander, 165 N. Y. 289; Murphy v. Holmes^ .
87 App. Div. 369. The separation agreement did not
release the father from plaintiff's claim and it is not a
bar to this action. Judgment for plaintiff for $2,218
with interest from June 10, 1918, and costs.
Judgment for plaintiff.
Digiti
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Dale Engineering Co. v. State of New York. 233
Mise.] Court of Claims, January, 1921.
Dale Enginebring Company, Claimant, v. The Statb
OF New York.
Claim No. 16176.
(State of New York, Court of Claims, January, 1921.)
Ooiuititiitional law— nnconstitiitionality of Laws of 1919, chap.
459 — contracts — Btatates — jmiadiction — Oonrt of Olainu
— State Oonatitation, art. m, §§ 19, 28.
Chapter 459 of the Laws of 1919, in terms conferring upon
tiie Court of Claims jurisdiction to hear claims of certain high-
way contractors for losses due to increased cost of labor,
material and transportation of material resulting from war
conditions, is in violation of section 19 of article III of the
State Constitution providing that the legislature shall neither
audit nor aUow any private claim or account against the state;
and it is also in violation of section 28 of the same article
providing that the legislature shall not grant any extra com-
I>ensation to any contractor. (Smith, J., dissents.)
An advertisement for letting of a highway contract was
published once between Apnl 6 and April 17, 1917, namely,
on April 16, 1917. The date therein advertised for the letting
was May 7, 1917. Claimant's bid was dated May 7, 1917, and
the contract was executed on May 9, 1917. Beld, that the
contract did not come within the terms of chapter 459 of the
Laws of 1919.
The words in section 6 of the act '' advertised for letting
between April 6, 1917, and April 17, 1917," relate to the
advertised date of letting and not to the date of advertising.
Claim against the state upon a contract for the im-
provement of a highway.
Hugh J. O'Brien (T. Harvey Ferris, C. B. Dewey,
of counsel), for claimant.
Digiti
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234 Dale Engineering Co. v. State of New York.
Court of Claimfl, January, 1921. [Vol. 114.
Arthur E. Rose, third deputy attorney-general, for
State of New York.
AcKERSON, P. J. On the 9th d«ay of May, 1917, the
above named claimant, the Dale Engineering Com-
pany, enitered into a contract with the state cf New
York through the commission of highways, whereby
Baid claimant agreed to improve a county highway in
the county of Onondaga known sb Jordan-Baldwine-
ville, part 1, county highway 1506, in accordance with
the terms of said contract, and with the plans and
specifications accompanying the same for the gross
aggregate item prices of $63,996.75. The claimant
completed the work under this contract, the highway
was accepted by the state, and payment made therefor
to the claimant by the state prior to May 7, 1919. The
claimant alleges, and there is evidence in the case
which tends to prove, that by reason of the declaration
of war between the United States of America and
the Imperial German government, and the acts of
the government of the United States and of the state
of New York consequent upon such declaration of war,
and the conduct of such war, the cost of performance
of the said contract to the claimant, the contractor,
for labor, material and the transportation of material
was increased in the sum of $27,405.98. It can readily
be conceded that owing to the world war above referred
to the claimant was confronted with a situation which
made it much more difficult and expensive to perform
its contract than would otherwise have been the case,
but this in and of itself would have created neither a
legal nor a moral liability on the part of the state to
pay to this claimant any other or different compensa-
tion than that mentioned in the contract which was
entered into on the 9th day of May, 1917. Cohmbus
Digiti
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Dale Engineering Co. v. State of New York. 235
Misc.] Court of Claims, January, 192L
By. Power <& Light Co. v. City of Columbus, 249 U. S.
399.
The legisOsature of thi-s state, however, by chapter
459 of the Liaws of 1919, endeavored to relieve to eome
extent the alleged nnfortiumte condition in which
many contractors with the state found them'selves by
reason of the increased cost to them of labor, material
and transportation caused by the said war after they
had entered into their contracts with the state. This
act was entitled **An act authorizing the termination
of certain highway contracts, oonfeiring jurisdiction
upon the court of claims to hear and determine claims
and make awards for increased costs incurred in war
contracts, and making an appropriation for the com-
pletion of unfinished work." It became a law on the
7th day of May, 1919.
By section 1 of this act, ** war contracts " were
design*ated as those which were made and executed
prior to the 6th day of April, 1917, the date of the
declaration of war between the United States of
America and the Imperial Germian government, or
those which were entered into after that date on bids
submitted to the highway commission before said
April sixth. Section 6 of the act extends the benefit
of the act to still another class of contracts, namely,
those contracts, the actual letting of which took place
after the declaration of war on April 6, 1917, but before
the introduction of the Draft Act in congress on the
17th day of April, 1917.
It will be seen, therefore, that the whole theory of
this legislation was to compensate a contractor for the
loss which he had suffered in performing a contract
which he had entered into with the state before he had
notice that the country was going to be involved in
war during the time of the performance of the con-
Digiti
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236 Dale Engineering Co. v. State of New York.
Court of Claims, January, 1921. IVoL 114
tract, or at least before he had notice of the drastic
provisions of the Draft Act which wonld necessarily
very much limit his opportunities to get the necessary
labor to perform his contract. It was apparently not
the intention of the legislature to extend any relief to
a contractor who, after war had been declared and
after the Draft Act had been introduced in congress,
deliberately and with his eyes open, with full taiowl-
edge that the country would be in turmoil and that the
cost of labor and material and transportation would
necessarily greatly increase in value, entered into a
contract with the state to perform the necessary labor
and furnish the necessary material to build a highway.
When a man has notice of those things which, it is evi-
dent, must greatly increase the difficulties of his task,
he has no one to blame but himself if he gets into
trouble. The state, under such circumstances, could
not be considered under any kind of an obligation to
assist him. The contract in question was not made
prior to April 6, 1917; it was not made upon bids
submitted prior to April 6, 1917 ; it was not canceled
or abrogated for non-performance, but was fully com-
pleted by the claimant as mentioned aforesaid. This
contract, therefore, does not come within the pro-
visions of section 1 of chapter 459 of the Laws of 1919.
This contract was not let between April 6, 1917, the
date of the declaration of war, and April 17, 1917, the
date of the introduction of the Draft Act in congress,
and, therefore, does not come within the provisions of
section 6 of the aforesaid act. But this claimant on
the 9th day of May, 1917, more than a month after the
declaration of war between the United States of
America and the Imperial German government, and
more than three weeks after the 17th day of April,
1917, when the aforesaid Draft Act was introduced in
Digiti
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Dale Engikeebinq Co. v. State of New Yobk. 237
MiM.] Court of Claims, January, 192L
congress, signed and executed the contract in question
with the state by which he obligated himself to furnish
the necessary labor and material to build the highway
in question. The officers of this claimant were then
in full possession of the facts which must have made
it plain to them that the performance of their con-
tract would be accompanied with great difficulty and
with greatly increased expense on all items of labor,
material and transportation, and it was not the inten-
tion of the legislature that contractors, who were will-
ing to take those chances and who signed their con-
tracts with full knowledge of those facts, should later
on be permitted to come in and make any claim against
the state for the increased cost which they ought to
have anticipated when they executed their contracts.
And, therefore, we say, without any reference to the
constitutionality of chapter 459 of the Laws of 1919,
that the contract in question does not come within its
terms and does not give this court, therefore, any
jurisdiction of a claim against the state based upon
such a contract
The particular language upon which the claimant
relies, however, and which it contends brings this
claim within the benefit of the act, is found in section
6 in these words: '* Including contracts advertised for
letting between April 6th, 1917, and April 17, 1917, on
estimates prepared by the Department of Highways
prior to April 6th, 1917.'* The advertisement which
resulted in the letting of this contract to claimant was
published once between April 6 and April 17, 1917,
viz., on April 16, 1917. The date therein advertised
for the letting of the contract was thereby fixed as
May 7, 1917. Claimant's bid or proposal, pursuant to
such advertisement, was- dated May 7, 1917, and the
contract bears date May 9, 1917.
Digiti
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238 Dale Engineering Co. v. State op New York.
Court of Claims, January, 1921. [Vol- H^.
Claimant claims that it is the fact of the publica-
tion of the advertisement between April 6 and 17, 1917,
which was intended by the legislature to be the test of
whether a contract was to be entitled to the benefit of
the act under the language above quoted.
I do not agree with that construction of the statute.
In my view, the words *^ between April 6th, 1917 and
April 17th, 1917 ^* relate to the advertised date of
letting and not to the date of advertising. This seems
to me to be the plain meaning of the language, apart
from any other consideration, and is supported by the
situation which confronted the legislature when the
act in question was pending before it. April 6, 1917,
was the date of declaration of war between the United
States and the Imperial German government; April
17, 1917, was the date of introduction in the senate of
the United States of the Federal Draft Act, of which
fact judicial notice is taken. It was the passage and the
consequences of the enforcement of the Federal Draft
Act which claimant contends so disastrously affected
the cost of performance of large construction con-
tracts. No other reason is apparent or assigned for
the fixing by the legislature of the period between April
6 and April 17, 1917, than the facts of the declaration
of war and the introduction of the Federal Draft Act,
and it is probable that that period was fixed with ref-
erence to those two events.
The freedom of action of claimant and other con-
tractors was not and could not be affected by the mere
fact of advertising a notice of the letting of highway
contracts or by the dates of the publication of such
advertising. The date advertised for letting, however,
was of great importance to the contractor, for on or
before that date his proposal must have been duly
formulated and filed with the highway commission,
Digiti
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Dale Engineering Co. v. State of New York. 239
Misc.] Court of Claims, January, 1921.
together with cash or a certified check equal to five
per cent of the amount of the proposal as required in
the information for bidders and in the public adver-
tisement. If between the date of the declaration of
war and the date of the introduction in the senate of
the United States of the Federal Draft Act, a con-
tractor had obligated himself by the filing of a pro-
posal accompanied by cash or a certified check, the
legislature evidently concluded there was some justice
and equity in affording him relief from the conse-
quences of so important a fact as the Draft Act, of
which he had and could have had no knowledge at the
time of making his proposal, and this, I conclude, is
what was intended by the legislature.
If this is the correct construction of the statute,
claimant is npt within the benefit sought to be con-
ferred by it, for the reason that the advei-tised date
of the letting of this contract was May 7, 1917, on
which date claimant's proposal was dated and sub-
mitted, and, therefore, I conclude that the court has
not jurisdiction of this claim.
The state has not raised this question of jurisdiction
nor asked for the dismissal of the claim on this
ground. The court, however, feels it to be its duty,
being of the opinion that it is without legal jurisdic-
tion, not to assume it.
We now come to the question as to whether this act
of the legislature is in violation of the provisions of
the Constitution. Section 19 of article III of the
Constitution reads as follows: '* The legislature shall
neither audit nor allow any private claim or account
against the State, but may appropriate money to pay
such claims as shall have been audited and allowed*
according to law.''
One of my colleagues in his opinion holds that this
Digiti
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240 Dale Engineering Co. v. State of New York.
Court of Claims, January, 1921. [Vol.114.
act of the legislature is contrary to the provisions of
that portion of the Constitution. I agree with him and
concur in the following language which he uses: '* In
the case at bar the Legislature not only allowed the
daim, but directed the Court of Claims to compute
the amount found due under such conditions and
award judgment, the language of the act being that
the Court of Claims shall determine the amount of the
difference between the contract and the cost price, and
award judgment. The Legislature cannot do indi-
rectly what it cannot do directly.*'
The act places no burden of responsibility upon the
court to determine either the legal liability or the
moral obligation of the state. That has been deter-
mined by the legislature. All that is left for the court
to do is to subtract the amount which would represent
the cost of performance of the contract before the war
from the amount which represents the actual cost of
the performance of the contract and give the claimant
an award for such proportion of that as under the
terms of the act should be paid by the state. There
is absolutely nothing judicial about the act that the
court is called upon to perform. It is entirely admin-
istrative and clerical. Such being the case, the act is
clearly in contravention of section 19 of article III of
the Constitution.
We now come, however, to a more serious question
than either of those considered above. This claim is
one for extra compensation to this contractor. It is
conceded to be such by both the state and the claim-
ant. The Constitution, by section 28 of article m,
provides as follows: '* The legislature shall not, nor
shall the common council of any city, nor any board
of supervisors, grant any extra compensation to any
public officer, servant, agent or contractor.**
This is a solemn prohibition by the fundamental
Digiti
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Dale Engineering Co. v. State of New York. 241
Mise.] Court of Claims, Jannary, 1921.
law of this state, placed there for the protection of
' the funds of the people of the state, and which is abso-
lutely controlling not only upon the legislature, but
upon all the courts of the state. The claimant's coun-
sel seems to think that the difficulty with which he is
confronted in this provision of the Constitution can
be easily evad-ed by the contention that it is not the
legislature which is granting the extra oompensation,
but that it is the Court of Claims which is called ui>on
to grant the extra compensation. Again I refer to the
language of my colleague, above quoted, wherein he
says: ** The Legislature cannot do indirectly what it
cannot do directly. ' ' The Court of Claims of this state
is a creature of the legislature. It was instituted by a
legislative act. The Connrtitution prohibits the legis-
lature from awarding extra compensation to a con-
tractor. And it contains no language authorizing the
creation of a tribunal to award extra compensation.
The provisions of the Constitution are not to be so
easily evaded. If they could be, they would be of but
little value. Our form of government can continue to
exist only by maintaining in its integrity the Consti-
tution upon which it is based. The Constitution can
be maintained only by courts and l^slatures which
have the firmness to resist the assaults made upon it
for either i>erison«l gain, or the public benefit, or in the
cause of pure philanthropy. Such assaults must be
overcome whether the motives which inspire them are
good or bad.
The state of Wisconsin has a similar clause to this
in its Constitution. Section 26 of article IV of the
Oonistitution of the state of Wisconsin declares that
ftihe legislature shall never grant any extra compen-
sation to any public contractor after the contract shall
be entered into. The Supreme Court of that state, in
the case of Carpenter v. State, 39 Wis. 271, uses lan-
16
Digiti
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242 Dale Engineering Co. v. State of New York.
Court of Claims, January, 1921. [Vol. 114.
gaage which may well be borne in mind in passing on
the present case. The court there said:
*' For, in any construction of the statute before us, it
aseumes to compensate the plaintiff for all work and
material und^r his contract, not at the prices of the
contract itself, but at prices ascertained dehors the
contract and by a rule wholly ind^pend'ent of the con-
tract. Smch compensation of a public contractor is
prohibited by the Constitution.^^ (p. 282.)
** The esact measure of his right m determined abso-
lately by his contract, under the constitution; and
there exists mo where a discretion to vary if (p.
283.)
" Legislative history i>oints and sanctions the policy
of the constitution. It indicates the purpose of the
eedtion to eave the legislature from the importunity of
public contractors and servants, and the treasury from
the discretion of the lf:gislature in their favor; to limit
contractors with the state, beyond pretense and device,
to the precise compensation fixed by their contracts.
Under this salutary restraint, no misfortune or
rapacity can ever avail in a court of justice, by any
artifice of circuity, to change the rule of recovery on a
contract with the state. Where there is no fraud or
mistake which would authorize a court to avoid or
reform any contract, the contract itself must govern.
If the compensation be too high, the state must bear
the loss ; if too low, the contractor must suffer it. The
constitution leaves no room to legislature or court
for equitable considerations of quantum meruit. We
cannot say that the statute before us is not equitable ;
but we do hold that it is not constitutional** (pp.
284-285).
These words of the Wisconsin judge apply here with
great force. This statute before u» is remedial in its
naiturei and the end aimed at is undoubtedly justifiable,
Digiti
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Dale Engineering Co. v. State of New Yobk. 243
Misc.] Court of Clami% January, 192L
but that it is in defiance of the plain mandates of the
Constitution is sufficient to work its condemnation, no
matter how landiable its purpose.
That the legislature cannot evade the prohibition
placed ujwn it by the Constitution, by creating a
tribunal, and then, without constitutional authority,
delegating power to that tribunal to do what it cannot
do itself, seems too plain for argument. Section 19 of
article HI gives the legislature such constitutional
authority but section 28 does not. The Court of
Appeals of this state, however, has clearly established
that principle in a nmnber of cases. Judge Allen in a
very learned opinion in the case of People ex rel.
Bolton V. Albertson, 55 N. T. 55, used this very sig-
nificant language: **A written Constitution must be
interpreted aind effect given to it as the paramount law
of the land, equally obligatory upon the legielature as
upon otiier departments of government and individual
eitizens; according to its spirit and the intent of its
f ramers, as indicated by its terms. An act violating
the true intent and meaning of the instrument,
although not within the letter, is as much withdoi tbe
purview and effect of a prohibition as if within the
strict letter; and an act in evasion of the terms of the
Conetitution, as properly interpreted and understood,
and frustrating its general and <dearly expressed or
necessarily implied purpose, is as clearly void as if
in express terms forbidden. A thing within the intent
of a Constitution or statutory enactment is, for all
purposes, to be regarded as witiiin the words and terms
of the law. A written Constitution would be of little
avail as a practical and useful restraint ui>on the dif-
ferent departments of government, if a literal reading
only was to be given it, to the exclusion of all neces-
sary implication, and the clear intent ignored, and
slight evasions or acts, palpably in evasion of its spirit^
Digiti
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244 Dale Engineering Co. v. State of New York.
Court of Claims, January, 1921. [Vol. 114.
i
should be midtained ss not repugimiit to it. The
restraints of the Constitution upon the several depart-
ments, among which the various powers of government
are distributed, cannot be lessened or diminished by
inference and implication; and usurpations of power,
or the exercise of power in disregard of the exprese
provision or plain intent of the instrument, as neces-
sarily implied from all its terms, cannot be sustained
under the pretence of a liberal or enlightened inter-
pretation, or in deference to the judgment of the legis-
lature, or some supposed necessity, the result of a
changed condition of affairs. (1 Kent's Com. 162;
Barto V. Himrod, 4 Seld. 483; Taylor v. Porter, 4 Hill,
144; Warner v. People. 2 Den. 272; People v. N. Y. C.
R. R. Co., 24 N. T. 485; Schenectady Observatory v.
^Z/en, 42 id. 404.) ''
Judge Vann, in the case of People ex rel. Burhy v.
Rowland, 155 N. T. 280, quoted from this opinion of
Judge Allen approvingly and i!a addition said on this
subject: ** When the main purpose of a statute, or of
part of a statute, is to evade the Constitution by effect-
ing indirectly that which cannot be done directly, the
act is to that extent void, beoauae it violates the spirit
of the fundamental law. Otherwise the Constitution
would furnish frail protection to the citizen, for it
would be at the mercy of ingenious efforts to circum-
vent its object and to defeat its commands.*^
True it is, therefore, that the legislature cannot do
indirectly that which it is prohibited from doing
directly. Otherwise prohibitions in the Constitution
upon the action of the l^slature would be i>owerlee«
to aooomplifih the object for which they were f ramod.
If the contention of the claimant iss correct that secr
tion 28 of article III of the Constitution is a limitation
upon iihe act of the legislature alone, then it is entirely
unnecessary and ia surplusage, becauise section 19 of
Digiti
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Dale Engineering Co. v. State of New Yobk. 245
Misc.] Conrt of Claims, January, 1921.
article III prohibits the legislature from auditing or
allowing any private claim or account against the state
whether it be for extra compeneaition or any other pur-
pose. Section 19 then proceeds to authorize the legist
lature to appropriate mon-ey to pay euch claims as ehall
be audited and allowod aiocording to law. Section 28
of artiok III, it will be noted, however, contains no
provi<aion authorizing the audit and allowance of
claims for extra compensation anywhere by anybody.
It prohibits the recognition of that class of liabilities
against the state, and does not provide any way that
extra compensation may be paid to any public con-
tractor. In other words, section 28 of article HI is
entirely a prohibition, and does not contain, within
itself, any reicognition that '* extra compensation *' can
under any circumstances be constitutionally granted.
This is in accordance with what Judge Bapallo said in
his opinion in the case of Cole v. State of New York,
102 N. Y. 48, where he says, at page 54: ^' Where
the creation of a particular class of liabilities is pro-
hibited by the Constitution, it would of course be an
infraction of that instrument to pass any law author-
izing their enforcement, but in the absence of any
such prohibition there is no good reason why the
State should be powerless to do ju9tice, or to recognize
obligations which are meritorious and honorary and to
provide tribunals to pass upon them." (The italics are
ours.) In the case of Cole v. State of New York it
appeared that the captain and harbor master of the
port of New York and their employees were to be paid
out of moneys raised by a tax on the ships in the
harbor according to their tonnage. The Supreme Court
of the United States held such law to be unconstitu-
tional, and, therefore, the captain and harbor master
put in a claim to the state for their salary under and by
virtue of chapter 238 of the Laws of 1885 which con-
ferred jurisdiction on the Board of Claims *' to hear,
Digiti
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246 Dams Engineering Co. v. State of New York.
Court of Claims, January, 1921. [Vol. 114.
r .
audit and determine ^^ their claims for such salary.
Judge Bapallo further said, in reference to this act:
*' It grants no extra compensation. It merely gives
jurisdiction to hear and determine a claim for reason-
able compensation for services rendered in a case
where the compensation attempted to be provided by
law failed by reason of the invalidity, under the Con-
stitution of the United States, of the provision for
such compensation.'^ 102 N. Y. 59.
It seem® plain to us, therefore, that the facta oon-
ceming the contract in question in this case do not
bring it within the terms of chapter 459 of the Iiaws of
1919, so that even if such act is a valid exercise of legis-
lative authority, this court would have no jurisdiction
of this claim in any event. It further appears clear
to us, however, bb has been well expressied by Judge
Morschaueer, that this act i« in direct violation of
section 19 of article HI of the Constitution which
prohibits the legislature from auditing or allowing any
private claim against the state. It is apparent that
this is just what it has done by this act. For this
reason, therefore, if for no other, the act is unconstitu-
tional, and the claim must be dismissed. But it appears
further that the subject upon which the legislature has
attempted to act here has been placed beyond its
jurisdiction by the Constitution itself. The prohibi-
tion in the Constitution, as set forth in section 28 of
article HE, is not only binding upon the legislature but
upon the courts of the state as well. That section
places it beyond the power of the legislature or of any
tribunal to make an award to any public contractor in
this state for extra compens-ation. That provision of
the fundamental law can neither be ignored nor
evaded. Without it, public contracting would be
reduced to a farce. The public treasury would be the
oonatant object of attack by every public contractor
Digiti
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DAiiB Enqinebrikg Co. v. Statb of New York. 247
Misc.] Conrt of Claims, January, 1921.
who, through mi&fortane or ignorance, had lost money
on his contract. It would also be the constant object
of attack by every public contractor whose rapacity
for money was strong enough to throttle his integrity
and induce him to conunit fraud. The «tate, it is true,
may recognize a moral as well as a legal liability. It
m<ay authorize the Court of Claims to determine
whether the claim of a claimant ie a moral obligation
against the state, and, if so, to render such an award
as shall be just and equitable in the premises, but it
has no power either itself to recognize or to authorize
the Court of Claims to recognize any claim for extra
compensation. The claim before us must, therefore, be
dismiased.
Smith, J. (dissenting in part). I think the decisions
of the courts compel the conclusion that, if chapter 459
of the Laws of 1919 is not in contravention of section
28 of article III of the State Constitution, it does not
violate section 19 of article III or section 9 of article
Vin, for it does not in terms or effect audit or allow
any claim against the state, and, if there exists against
the state and in favor of the contractors for whose
relief the act in question was passed a moral and equi-
table obligation, though not a legal one, the payment
of the money of the state in discharge of such obliga-
tion, pursuant to the provisions of an act of the legis-
lature in other respects valid, would not be a gift or
gratuity within the meaning of section 9 of article
Vni of the Constitution. Cayuga County v. State
of New York, 153 N. T. 279; Mwyro v. State of New
York, 223 id. 208.
I conclude also that the act is not in contravention
of section 28 of article HE of the Constitution. Of
course, if contractors are permitted to recover by vir-
tue of its provisions they will have received extra com-
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248 Dale Engineering Co. v. State of New Yobk.
Court of Claims, January, 1921. [Vol.114.
pensation, because they will have received compensation
over and above that fixed by their contracts when the
labor and materials were furnished {Matter of Mahon
V. Board of Education, 171 N. T. 263, 266), but such
extra compensation has not been granted by the act, the
meaning and effect of which is merely to refer such
claims to this court to be heard and examined upon
legal evidence to the end that this court may determine
whether or not in conscience, equity and justice the
state should pay any amount, and if so what amount, on
account of the facts alleged in the claim and proven on
the trial, the legislature having by the act waived legal
defenses to the extent specified in the act.
The section of the Constitution under consideration
does not provide that no contractor shall receive any
extra compensation, or that the state shall not grant,
allow or pay any extra compensation, but merely that
the legislature shall not do so. The act contains no
language expressly granting any compensation, extra
or other, to any contractor, but is a general act declar-
ing a policy of justice and equity to those who under
extraordinary war conditions have expended moneys
for the benefit of the state in amounts far greater than
the state was legally bound to repay, and provides for
payment only if and when this court shall by its judg-
ments establish valid claims.
It is urged by the state that the statute by its terms
leaves nothing to the court to be judicially determined
but conmiands the court to render the exact judgment
directed by its terms. When, however, the act is read
and construed in the light of the law as declared in
Mv/rvro v. State of New York, 223 N. Y. 208-214, and
the word '* shall ^' in the twelfth line of section 6 read
as *' may '* in conformity to the rule there enunciated
and applied, it appears that the court is not com-
manded, but authorized and permitted to render judg-
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Dale Engineering Co. v. State of New York. 249
Misc.] Court of Claims, January, 1921.
~^
ment in sruch cases, and to fix the amount of the recov-
ery, restricted, however, by the limitations expressed
in the act.
Attention has been called to the fact that the act
Tinder consideration does not, as did the act construed
in the Munro Case, supra, in terms confer upon the
court jurisdiction to determine, but merely to hear,
such claims. This circumstance I regard unimportant.
Jurisdiction to hear necessarily implies authority to
determine. Hearing without determination would be
idle and futile and the legislature cannot be held to
have intended an idle ceremony. American Bamk Note
Go. V. State of New York, 64 App, Div. 223, 227.
Attention has also been called to the fact that the
act construed in the Munro case by its terms author-
ized the court to render judgment for such sum as
shall be ** just and equitable,'* whereas in the act
under consideration the words '* just and equitable **
or equivalent words are not used and it is argued that
hence the court has not been authorized to determine
as to the justice and equity of such claims, but that
the legislature itself has determined the justice and
equity of the claims in advance, and in favor of claim-
ants, leaving to the court only the duty of computing
the amount of the judgment to be rendered. I do not
so read the statute.
Jurisdiction to hear and determine includes power
to determine and decide every question necessarily
involved in the case being heard. The words ** The
Court of Claims shall (may) determine the increased
cost • • • and render judgment against the state
for the amount so determined as chargeable to the
state '* confer power and authority to allow or reject
claims in whole or in part and in considering whether
they are to be allowed, to take into consideration prin-
ciples of equity and common justice, disregarding
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250 Dale Engineering Co. v. State of New York.
Court of Claims, January, 1921. [Vol. 114.
purely legal defenses to the extent permitted by the
act. Cole V. State of New York, 102 N. Y. 48, 52;
Munro v. State of New York, 223 id. 208, 213.
There is abundant authority to support the power
of the legislature by appropriate enactments to recog-
nize the moral and equitable obligations of the state
to the extent of referring them to this court for exam-
ination and determination and allowance if the facts
shall establish a moral and equitable ground for recov-
ery, though the legislature is forbidden by the Con-
stitution to itself audit and allow such claims. Board
of Supervisors of County of Cayuga v. State of New
York, 153 N. Y. 279; Cole v. State of New York, 102
id. 46; O'Hara v. State of New York, 112 id. 146;
Wheeler v. State of New York, 190 id. 406 ; Lehigh Val-
ley R. R. Co. V. Canal Board, 204 id. 471; Munro v.
State of New York, 223 id. 208.
I have not overlooked Matter of Mdhon v. Board
of Education, 171 N. Y. 263. The statute there con-
sidered (Laws of 1900, chap. 725) made no provision
for the hearing and determination of the claims of the
retired teachers to a pension, but the right to the pen-
sion and the amount thereof were determined by the
direct action of the legislature ; hence the act was held
to be in contravention of section 28 of article III of the
Constituton.
However, I concur in the opinion of Presiding Judge
Ackerson that this court is without jurisdiction to
make an award in claimant's favor upon this claim
for the reason that chapter 459 of the Laws of 1919
does not apply to claimant's contract nor to this claim,
and, therefore, that the claim should be dismissed.
MoRSOHAUBER, J. (coucurring). The claim herein
is made by a contractor who has had a contract for the
construction of a public highway with the state to
build a state road. The claim is filed under chapter
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Dalb Enginebbing Co. v. State of New Yobk. 251
Misc.] Court of GlaimSy January, 1921.
459, Laws of 1919, oommonly known as the Knight
Act. Section 6 confers jurisdiction upon the court,
and reads as follows:
** § 6. Jurisdiction is hereby conferred upon the
court of claims to hear all claims for alleged increase
in the cost of labor, materials or transportation of
materials incurred after April sixth, nineteen hundred
and seventeen, in the doing and performance of war
contracts which have been completed, accepted and
for which final payment has been made, including con-
tracts advertised for letting between April sixth, nine-
teen hundred and seventeen, and April seventeenth,
nineteen hundred and seventeen, on estimates prepared
by the department of highways prior to April sixth,
nineteen hundred and seventeen, and also of any war
contract terminated under the provisions of this act.
The court of claims shall determine the increased cost,
whether the whole or a part, which is properly charge-
able against the state and the portion of such
increased cost, if any, which may be paid by a sub-
division or subdivisions of the state as hereinafter
provided on the basis on which the state and the sub-
divisions of the state were obligated to pay for the
work done under the contract and render judgment
against the state for the amount so determined as
chargeable to the state, which judgment shall be paid
as other judgments against the state are paid. No
judgment shall be rendered, however, for an amount
greater than thirty-five per centiun of the contract
price of labor, materials and the transportation of
materials furnished or supplied during the year nine-
teen hundred and seventeen, nor greater than fifty
per centum of the contract price of labor, materials
and transportation of materials furnished or sup-
plied during the year nineteen hundred and eighteen.
No claim for relief under this section shall be main-
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252 Dai^ Engineering Oo. v. State op New York.
Court of Claims, January, 1921. [Vol.114.
tained against the state unless the claimant shall file
his claim within six months after his right of action
shall accme under the provisions of this act. Any sub-
division of the state is authorized and empowered to
raise by taxation or by an issue of its obligations such
an amount as may have been found by the court
of claims to be the proportion which said subdivision
may pay for the increased cost as so determined, and
to pay said amount to the contractor entitled to
receive the same.''
Among other defenses made by the state, it chal-
lenges the constitutionality of the Knight Act and
asserts that the same is unconstitutional under the
provisions of section 19, article III, and section 28 of
article III of the New York State Constitution. Sec-
tion 19, article III, reads as follows: ** The legislature
shall neither audit nor allow any private claim or
account against the State, but may appropriate money
to pay such claims as shall have been audited and
allowed according to law.''
Section 28, article III, reads as follows : *' The legis-
lature shall not, nor shall the common council of any
dty, nor any board of supervisors, grant any extra
compensation to any public officer, servant, agent or
contractor."
Both section 19 and section 28 of article III were
reconmiended by the Constitutional Convention in
1867 and were adopted and became a part of the pro-
visions of the Constitution in 1874. In addition to these
amendments of the Constitution, sections 6 and 9 of
article VH and sections 9 and 10 of article VIII were
all under discussion by the Constitutional Convention
of 1867 and were all adopted in 1874, and in that year
became part of the Constitution of the state of New
York. All of these sections were amendments to the
Constitution and were adopted in 1874 to remedy the
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Dai^ Enginbeking Co. v. State of New York. 253
Misc.] Court of Claims, Januaryi 1921.
many evils of special legislation, which had grown so
extensive as to become a public scandal. Prior to the
adoption of these amendments the power of the legis-
lature was not restricted, so that it could pass private
bills (or change the terms of a contract) or increase
the pay of contractors, increase salaries and do many
things that these amendments were intended to pro-
hibit, and before these amendments special legisla-
tion became subject to great abuses, which the various
amendments above named to the Constitution were
intended to remedy. After the adoption of these
amendments to the Constitution and after they became
a part of the Constitution of the state there arose many
instances in which the state, recognizing its moral
obligation, where in its judgment justice and right
demanded it, by enactments through the legislature
conferred jurisdiction on the Board of Claims, and
afterwards the Court of Claims, directing them to dis-
regard legal defenses and award judgment against the
state, if the court found that the claim was founded on
equity and justice, although the claims were not such
as could have been enforced in a court of law. if the
state had not been immune from suit. Under such
circumstances many enabling acts have been passed
by the legislature; and the several amendments of
1874, above named, have been the subject of judicial
construction, arising out of claims presented under
such special legislation. Almost without exception
the courts have held in such cases such enabling acts
to be constitutional and not in violation of the pro-
visions of the various amendments, if the claim and
demand against the state was one founded on justice
and equity. Munro v. State of New York, 223 N. Y.
208; Lehigh Valley R. K Co. v. Canal Board, 204 id.
471; Trustees Exempt Firemen's Benev. Fund v.
Booms, 93 id. 313; Wheeler v. State of New York, 190
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254 Dau Engikbebikg Oo. v. State of Nbw York.
Court of Claims, January, 1921. [Y oL 114.
id, 406; Matter of Boston S Albany R. R. Co., 64 App.
Div. 257; 170 N. Y. 619; Oswego <B Syracuse R. R. Co.
V. State of New Tork, 186 id. 384; affd., 226 N. Y. 351;
Cole V. State of New York, 102 id. 48.
But in no instance where the enabling act was
passed in aid of any one who rendered services to the
state or who was entitled to recover from the state did
the legislature assnme to determine the question of
the equity or justice of such a claim, but submitted it
to a tribunal to hear, audit and determine, and usually
conferred jurisdiction upon the Court of Cl^ms and
invested such tribunal with judicial x)Owers to deter-
mine the equities and justice of a claim so presented,
and permitted it to decide such questions. The state,
recognizing its moral obligation, could at all times
do justice even though it had a legal defense to claims
presented, and the courts have uniformly held that
under such circumstances the amendments to the Con-
stitution of 1874 did not prevent the state through
its legislature from enacting laws whereby tiiese
daims could be submitted to some tribunal for deter-
mination. The legislature itself could not make such
determination, and, therefore, jurisdiction to make
such determination and hear the claim and audit and
determine the same was usually referred to its tri«^
bunal known as the Court of Claims, created for that
purpose. The legislature could not in any orderly
way, such as the taking of testimony and the observa-
tion of legal rules governing evidence, determine
these questions. By referring it to the Court of
Claims there was an orderly way of determining it
upon evidence, and the right to appeal and review was
provided by the Code. And where this was done, the
courts have uniformly held that such enabling act con-
ferring such jurisdiction was not in violation of the
oomstitational provisions above named.
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DAiiB ENGiNBBRiKa Co. V. Statb OF Nbw Yobk. 255
Misc.] Court of Claims, January, 1921.
At the time of the declaration of war of the United
States with the Imperial German government, the state
of New York was nnder contract with many contractors
to bnild or repair state highways. This war created a
great demand from the ranks of labor for men and
great increase in the costs of labor and material and
in the costs of transportation; industries were con-
verted into ammnnition factories and all labor was
either used in the manufacture of ammunition and other
articles used in the war or the laboring man was con-
verted into a soldier; railroads were busily engaged in
transporting war necessities, with the result that the
costs of all labor and material were greatly increased.
The war and these conditions were not contemplated at
the time the contractors entered into the contract for
the improvement or construction of highways, and it
certainly never was intended by either contracting
party to be one of the hazards usually encountered in
the carrying out of contracts ; and the contractor when
m€dking his bid could not be expected to anticipate such
a condition ; and the costs of material, labor and trans-
portation after the war reached such a high mark
that to compel the contractor to complete his contract
would mean in many cases absolute bankruptcy for
him.
While it is a well-settled rule of law that a person
may be relieved from an obligation of his contract
when it becomes impossible of performance or when
such performance has become impossible on his part
by some superior force without his fault, it was never-
theless held in Colwnhus Railway, Power (& L. Co. v.
Columbus, 249 U. S. 399, that the high cost of labor
and the increased costs of material and transporta-
tion brought about by the World War, did not make
a contract impossible of performance and was not
such superior force aa to prevent its performance.
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256 Dams Engineeking Co. v. State of New York.
Court of Claims, January, 1921. [Vol.114.
Justice Day in writing the opinion for the court,
Mnong other things, says: ** It certainly was not
intended to question the principle, frequently declared
in decisions of this court, that if a party charge him-
self with an obligation possible to be performed, he
must abide by it unless performance is rendered
impossible by the act of God, the law, or the other
party. Unforeseen difficulties will not excuse per-
formance. Where the parties have made no pro-
vision for a dispensation, the terms of the contract
must prevail. • • • The latest utterance of this
court upon the subject is found in Day v. United
States, 245 U. S. 159, in which it was said : * One who
makes a contract never can be absolutely certain that
he will be able to perform it when the time comes, and
the very essence of it is that he takes the risk within
the limits of his undertaking. * * * * '*
In that case one of the contracting parties sought
to enforce the contract against the other party, and
the effect of this decision was that the World War
and the condition created by it did not excuse either
contracting party from fulfilling the obligations of
his contract.
In the case on trial before this court, while the ques-
tion arose between the contracting parties-, one of the
contracting parties, namely, the state of New York,
by legislative enactment did relieve the other party
from carrying out his contract and relieved him from
his obligations thereunder which were brought about
by the World War, as chapter 585 of the Laws of 1918,
commonly known as the Walters Act, permitted the
state upon consent of the contractor to terminate such
contracts, and if the state had not by legislative enact-
ment waived the performance of the contract, under
the decision in Columbus Railway, Power <& L. Co. v.
CoVumhus, supra, the conditions created by the World
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Dalb Engineering Oo. v. State of New York. 257
Misc.] Court of Claimsy January, 1921.
War would not have permitted the contractor to
abandon his contract.
We think the legislature had the power to allow
any contractor who had a contract with the state, with
the consent of the contractor to cancel the sanie. As was
said in People ex rel. Williams v. Dayton, 55 N. Y,
374: **No constitutional provision can prevent a
failure, on the part of the contractor, to perform his
contract nor his abandonment of it; and it is conceded
that the legislature may cancel or authorize contracts
to be canceled." And we think that the legislature
had such power if assented to by the contractor, and
that the legislature could go further and confer upon
the Court of Claims jurisdiction to hear, audit and
determine the equities of the claim and, if the state
should as a moral obligation by reason of the World
War pay the contractor the difference between the
stipulated price under the contract and the increased
cost, allow the Court of Claims to do so. This the
legislature attempted to do by the enactment of chap-
ter 459 of the Laws of 1919, commonly known as the
Knight Act. Had the legislature done so we do not;
think that the provisions of the Constitution named !
would have been violated. But by the Knight Act the
legislature did not confer jurisdiction upon the Court
of Claims to hear, audit and determine the claim. It
simply directed that the Court of Claims shall deter-
mine the difference in the cost and then commanded
the Court of Claims to award judgment for such sum
in favor of the contractor. While it states in the act
that the Court of Claims shall hear the claim, it
nowhere confers any jurisdiction to audit and deter-
mine the same, but simply directs that the Court of
Claims shall make a computation of the difference in
the cost and determine the amount thereof and then
award judgment against the state and in favor of the
17
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258 Dai^ Engineeeing Co. v. State of New York.
Court of Claims, January, 1921. [Vol. 114.
contractor for the amount so ascertained. The legis-
lature by the Knight Act assumed to decide the
equities and the moral obligation of the state, and left
nothing for the Court of Claims to do except to com-
pute the amount. This, we think, is precisely what
the amendments to the Constitution intended to pre-
vent the legislature from doing. While the state was
ready to do equity and observe its moral obligation,
the decisions hold that the question as to whether a
claim presented against the state should in good con-
science be paid and whether there was any moral obli-
gation upon the part of the state in equity and justice
to pay the same although the state may have had some
legal defense, should always be submitted to a consti-
tuted tribunal with judicial functions so that the matter
could be judicially determined and properly reviewed
upon appeal. This principle of law is clearly stated
by Judge Rapallo in Cole v. State of New York, 102
N. T. 51. In this case the claimant, while acting
as a captain and harbor master of the port of New
York, rendered certain services to the state of New
York, which he was authorized to do by chapter
436 of the Laws of 1860 and it was afterwards deter-
mined that he could not be legally paid for such serv-
ices. He having rendered services to the state, the
legislature by chapter 238, Laws of 1885, conferred
jurisdiction upon the Board of Claims to hear, audit
and determine such claim. The act was challenged as
being unconstitutional and in violation of section 19,
article III, of the New York State Constitution. Judge
Rapallo, writing the opinion for the court, says :
** It is apparent that the act does not come within
the prohibition against the auditing by the legislature
of any private claim. The act does not purport to
audit the claims. This the legislature could not do,
however just the claim, or however legal it might be
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Dale Engineering Oo. v. State of New York. 259
Ifiw.] Court of Claims, January, 1921.
if preferred against an individual. The Constitution
prohibits the legislature from exercising the power of
itself auditing claims, which is in its nature judicial,
but provides for the payment of claims which shall
have been audited or allowed according to law; thus
recognizing the power of the legislature to provide by-
law for the auditing and allowing by some appropriate
tribunal of claims against the State.
"It is contended, however, that the act does come
within the prohibition against allowing claims against
the State.
** It must be observed that the act of 1885 does not
even assume to allow these claims. It simply submits
them to the arbitrament of the board of claims, a
judicial body established for the purpose of passing
upon claims against the Stale. It gives jurisdiction to
that tribunal to hear and determi/ne those claims, but
does not dictate how it shall decide upon them. The
only limitation upon the power of the board to decide
is, that it shall confine itself to a reasonable com-
pensation for services performed and expenses in-
curred during the year specified. Under the authority
conferred by the act, that tribunal, if it deemed the
claims unjust, might have rejected them in toto. The
power to hear and determi/ne includes power to reject
as well as to allow. Construing the constitutional
restriction literally, it was not violated by giving to
the board jurisdiction to hear and determine. The
enactment was consequently purely legislative and in
no sense an exercise of judicial power.
*' It is contended, however, that the enactment was
violative of the spirit and intent of the constitutional
prohibition, if not of its letter. That it was intended
not merely to prevent the legislature from itself acting
judicially in passing upon private claims, but from
passing any law under which a private cl^im could
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260 Dai^ Engineering Co. v. State of New York,
Court of Claims, January, 1921. [Vol. 114.
be recognized by or established against the State, how-
ever just and equitable it might be, unless it was
founded on a legal liability which could be enforced by
the courts of justice against an individual or a cor-
poration. We find no such restriction upon the legis-
lative power in the State Constitution. The act estab-
lishing the board of daims (Laws of 1883, chap. 205,
amended by Laws of 1884, chap. 60) confers upon the
board jurisdiction to hear, audit and determine all
private claims which shall have accrued within two
years, except such as are barred by existing statutes.
But that restriction was imposed by the legislature
and is subject to modification by it.
^^ The statute of limitations and other legal defenses
are, under the general law, available to the State
as against a private claim preferred to the board of
claims, and as a general rule it has been considered
that the authority of the board is confined to the allow-
ance of legal claims. But can it be maintaned that it
would be beyond the power of the legislature, in special
cases, where in its judgment justice and right
demanded it, to give power to the board of claims to
disregard defenses strictly legal t We are unable to
find in the Constitution anything which deprives the
legislature of the power of giving to the board of
claims, or any other proper tribunal, jurisdiction to
hear and determine claims against the State which are
founded in right and justice, solely for the reason that
they could not be enforced against an individual in the
courts. • • •
** Where the creation of a particular class of liabili-
ties is prohibited by the Constitution, it would of
course be an infraction of that instrument to pass any
law authorizing their enforcement, but in the absence
of any such prohibition there is no good reason why the
State should be powerless to do justice, or to recognize
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Dalb Engikberikg Co. v. State of New York. 261
Misc.] Court of Claims, January, 1921.
obligations which are meritorious and honorary and
to provide tribunals to pass upon them. The legis-
lative power is suflficient, even as between individuals,
to afford new remedies and to create liabilities not
before existing, where they are based upon general
principles of justice,
**As a general rule money expended or services
rendered by one individual for the benefit of another,
but without his request or authority, do not create a
legal liability on the part of the person benefited to
make compensation. But a law which should provide
that in every such case, if the party benefited ratifies
the acts of the other, and accepts the benefits, he
should be liable, would be free from objection, so far,
at all events, as it should apply to future transactions.
Where the legislature is dealing with the imperfect
obligation arising from such a state of facts, it seems
to us that it does not transcend its power by passing
a law affording a remedy even in respect to past trans-
actions, where the State adopts the acts and is the
party to make the compensation, and no rights of
individuals, which are protected by the Constitution,
are invaded.'*
In the case at bar the legislature not only allowed
the claim but directed the Court of Claims to compute
the amount found due under such conditions and award
judgment, the language of the act being that the Court
of Claims shall determine the amount of the difference
between the contract and cost price and award judg-
ment. The legislature cannot do indirectly what it
cannot do directly. In the case of Munro v. State of
New York, 223 N. Y. 208, where the claimant had been
injured while in the employ of the state by reason
of the acts of an insane person at a state hospital
(although the state was not legally liable) yet it was
held that the enabling act was constitutional and
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262 Dai^ ENGiNEBRiNa Co. V. State op New Yobk.
Court of Claims, January, 1921. [Vol. 114.
not in violation of the constitutional principles above
named. In that case, after reciting the facts, the
legislature declared that such facts shall constitute
a legal and valid claim against the state and the
court shaU award and render judgment for the claim-
ant; and it was there held, Judge Crane writing the
opinion, that the word ** shall " was not intended
to nullify the power of the court to hear, audit and
determine or make it compulsory to award damage
(the clear meaning of the intent of the legislature
was to confer authority and power upon the Court
of Claims and not to direct or control its action).
This was the reason, and the court says: ** It might
appear at first reading as if the legislature had allowed
Munro 's claim and merely left it to the Court of Claims
to fix the amount of damages, but when we read more
closely and apply the rules of statutory construction
this impression vanishes. * The spirit, not the letter,
must control,* said Miller, J., in Maiter of Jensen
V. Southern Pacific Co. (215 N. Y. 514, 522) where ' may
be ' was held to mean * shall be.' By the first clause of
the act the Court of Claims * is authorized to hear,
audit and determine the claim of John I. Munro.* It
is then provided, * if the court finds such injuries were
so sustained, damages therefor shall constitute a legal
and valid claim against the state, and the court shall
award to and render judgment for the claimant for
such sum as shall be just and equitable.* The use of
the word * shall * in these latter phrases was not in-
tended to nullify the power of the court to hear, audit
and determine or make it compulsory to award dam-
ages.**
The word ** shall ** in the enabling act in the Mu/nro
case was held by Judge Crane to mean ** may ** for
the reason that the word ** shall ** in that case, as
Judge Crane said, did not intend to nullify the power
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Dai^ Engineering Oo. v. State of New York. 263
Misc.] Court of Claimsy January, 1921.
of the court to hear or to determine or make it com-
pulsory to award damages. ** The clear intent of the
legislature was to confer authority and power upon
the Court of Claims and not to direct or control its
action.'* In the enabling act in the Munro case the
court was not directed to award judgment, but the
statute merely directed the court in that case to render
judgment for the claimant for such sum as shall be
just and equitable.
The enabling act in that case still left the determina-
tion of the questions to the Court of Claims. We think
that the act conferring jurisdiction upon this court,
chapter 459 of the Laws of 1919, was clearly in violas
tion of the provisions of section 19, article III, and sec-
tion 28 of article III. It not only audited and allowed
a private claim against the state, but gave extra com-
pensation to a contractor in violation of section 28 of
article III. '' Extra '' is defined by Webster--** Be-
yond or greater than what is due,*' and this is com-
monly understood to be the meaning of the word
** extra;'' and when the Constitution provided there
should be no extra compensation it certainly was
intended by the framers of the Constitution that
no pay beyond that which is named in the contract
should be allowed a contractor. Extra compensa-
tion was precisely what the legislature did grant
the contractor, by virtue of chapter 459 of the Laws
of 1919; and while under the decisions if the state
was under a moral obligation so to do and it was
founded on justice and equity, the legislature could
so do, still the legislature by virtue of these amend-
ments of the Constitution had no authority to deter-
mine that question itself, but was obligated to con-
fer jurisdiction upon some judicial tribunal, where
the equities could be determined. If this act had con-
ferred jurisdiction upon some duly constituted judi-
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264 Dale Engineering Co. v. State of New York.
Court of Claims, January, 1921. [Vol.114.
cial tribunal to hear, audit and determine the equi-
ties and justice of til^e claim, we think it would not
have been in violation of the provisions of the Con-
stitution of this state, above named; but as the act did
not do this but allowed extra compensation to a con-
tractor and only authorized the Court of Claims to
hear the claim and then directed the court to award
judgment for an amount to be computed, we think was
in violation of the provisions of the Constitutioji. We
think that the Knight Act allowed extra compensation
to a contractor and merely left it to the Court of
Claims to fix the amount, and this amount was to be
fixed by ascertaining the difference between the amount
named in the contract and the increased cost brought
about by conditions created by the World War, so
that the act substantially directed the Court of Claims
to award judgment. It left nothing for the Court of
Claims to do. It did not call upon the Court of Claims
to exercise any judicial functions but the legislature
assumed to allow extra compensation and through the
Court of Claims compel the state treasurer to pay this
contractor beyond the amount stipulated in the con-
tract. The act might just as well have directed some
person to have computed the amount and upon such
computation directed the state treasurer to pay it.
This was precisely what the Constitution as amended
in 1874 intended to prevent. We must, therefore, con-
clude that the act is unconstitutional
Claim dismissed.
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Heinemann v. State of New York. 265
Misc.] Court of Claixns, January, 192L
BicHAKD ;J, Heinemann, Claimant^ v. The State op
New York.
Claim No. 16661.
(State of New York, Court of Claims, January, 1921.)
Uquor Tax Law, § 7. as amended in 1918 — powers of state com-
missioner of excise — wben claim for salary dismissed^
statutes — State Finance Law, § 86.
Under section 7 of the Liquor Tax Law, as amended in
1918, the state commissioner of excise has power to appoint
special agents at an annual salary, but as the statute fixes no
term of office, the commissioner of excise may in his discretion
discharge or remove a special ag^t at any time.
Where the state commissioner of excise, as in duty bound
by section 35 of the State Finance Law, notifies a special
agent appointed by him under section 7 of the Liquor Tax Law,
that the l^^ature has made no appropriation for special
agents, beyond March 31, 1920, such action of the commis-
sioner is a notification to the special agent, who was serving
in continuance of a probationary appointment made in 1915,
that his services would be no longer required, and his claim
for salary for the month of April, 1920, must be dismissed.
O'Neil V. State of New York, 223 N. Y. 40, distinguished.
Claim for salary as special agent of the state
commission of excise.
Edward J. Halter, for claimant.
A. A. Armitage, deputy attorney-general, for state
of New York.
MoRscHAusER, J. The claimant presents a claim
against the state to recover for salary as special
agent of the state commission of excise for a period
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266 Hbinemank v. Statb ov New Yobk.
Court of Claims, January, 1921. [Vol.114.
beginning April 1, 1920, and ending April 30, 1920,
amounting for the month, for which he makes a claim,
to the sxmi of $150. He alleges that he was appointed
a special agent pursuant to section 7, chapter 39 of
the Laws of 1909, constituting chapter 34 of the Con-
solidated Laws known as the Liquor Tax Law. The
claimant was appointed special agent by the state
commissioner of excise to take effect May 11, 1915,
at a salary of $1,000 per annum. The rules of the
civil service commission placed the special agents of
the excise department in the competitive class; and
the claimant was appointed from a civil service list.
The appointment, pursuant to the civil service rules,
was for a probationary term of three months. There
was no further appointment of the claimant, and he
continued to act as special agent under the original
appointment until March 31, 1920. At the time of the
claimant's appointment an oath of office was unneces-
sary but during tiie World War the legislature by
chapter 574 of the Laws of 1917 required all persons
employed by the state, and its civil divisions, to take
and file an oath of office. On the 9th day of May, 1917,
the claimant took such oath and filed the same June
15, 1917, in the office of the secretary of state. The
claimant also filed, the bond required by law. The
claimant under the Excise Law was entitled for the
first year to an annual salary of $1,000. After he had
served one year from the date of his appointment he
was entitled to an annual salary of $1,250, and after he
had served two years he was entitled to an annual
salary of $1,500. The law fixing the salary was
amended by chapter 469 of the Laws of 1918, which
provides that special agents in the excise department
for the first year should receive $1,000 per annum, the
second year $1,250 i>er annum and the third year
$1,500 per annum, and further provided that after
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Hbinemank v. State of New York. 267
Misc.] Gonrt of Claims, January, 1921.
such special agents had served three years they should
receive an annual salary of $1,800.
By chapter 177 of the Laws of 1919, the legislature
in its appropriation bill made appropriations for
special agents in the excise department from July 1,
1919, to March 31, 1920, and limited the number of
special agents in the excise department to forty-one,
thirty-nine of whom were to receive a salary of $1,350
for nine months, and two were to receive a salary of
$1,125 for nine months. There was no appropriation
made for such special agents beyond March 31, 1920.
Under the act creating an excise department the nxmi-
ber of special agents to be appointed was sixty. On
March tenth, while the claimant was performing
the duties of a special agent the state commissioner
of excise wrote to the claimant a letter which reads as
follows: ** I hereby notify you that no appropriation
was made for your salary as special agent or for that
of any other special agents in the department after
March 31, 1920.*'
On March 11, 1920, the claimant, in answer to the
communication of the commissioner of excise, wrote
a letter which was received by the commissioner which
reads as follows: ** I am receipt of your letter
notifying me of the failure of the appropriation for
salaries of special agents after March 31, 1920.
Beplying thereto, I wish to make the following state-
ment of my position : I do not consider that this ter-
minates my service in the department. I will at all
times hold myself in readiness to perform all the
duties imposed upon me by the liquor tax law, and to
obey all instructions and orders issued by you to me
in connection therewith. My address until further
notice will be 931 Madison Avenue, Albany.'*
The commissioner then wrote a letter to the claim-
ant which the claimant r^wived wMoh reads as fol-
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268 Heinemann v. State op New Yobk.
Court of Claims, January, 1921. [Vol.114.
lows: ** The State Department of Excise will prob-
ably need your services as a witness from time to time
in the various actions and proceedings now pending.
Will you hold yourself in readiness to attend upon the
trial of such actions and proceedings upon request by
letter or telegram where your attendance as a witness
may be needed, upon the payment of your necessary
expenses for such attendance upon the same basis as
they have been heretofore allowed by this oflBce and
the State Comptroller, including carfare and hotel
bills and at a per diem compensation of $10; such
expenses and per diem compensation will be paid in
the usual way upon your presenting a verified expense
account for the same. This letter is sent to you for
the reason that no appropriation has been made pro-
viding for the payment of your salary as special agent
after March 31, 1920, and to provide a way for obtain-
ing your attendance as a witness in such actions and
proceedings without subpoenaing you.*'
The claimant replied to this letter as follows:
** Replying to your communication of March 20th,
1920, permit me to state that I will be in readiness to
attend the trial of any action or proceeding upon
request by letter or a telegram as per diem compen-
sation allowed. In doing so, however, I do not waive
any rights that will prejudice any future action con-
templated by me.''
The claimant ceased to perform any services as
special agent after March 30, 1920. On April 1, 1920,
the claimant entered the employ of the jJEtna Life
Insurance Company at a salary of $2,000 a year. On
June 21, 1920, claimant filed his claim against the state
with the Court of Claims for the sum of $150, claiming
that amount due him for the month of April, 1920, by
virtue of his appointment as special agent under the
Liquor Tax Law, the claimant's contention being that
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Heikemann v. State of New York. 269
Misc.] Court of Claims, January^ 1921.
he was appointed by the state at a fixed salary and for
a definite term and was, therefore, entitled to receive
pay for the month of April, 1920. He also asserts that
he was neither removed, discharged nor suspended
from his position as special agent.
Under section 7 of the Liquor Tax Law as orig-
inally enacted by chapter 39 of the Laws of 1909, and
as amended by chapter 569 of the Laws of 1918, the
commissioner of excise was given power to appoint
special agents at an annual salary; and under the
provisions of this law special agents appointed could
be removed by the commissioner at any time, and such
commissioner was given the power to appoint their
successors. There is nothing in the statute that fixes
the term of office of a special agent. The statute only
fixes an annual salary. As such agents under this
statute were not employed or appointed for any defi-
nite time and no term of office was fixed they could be
discharged or removed at any time by the commis-
sioner of excise. The hiring or employing of a person
at a certain salary per annum has been held not to
be an employment for any particular or definite term.
Martin v. New York Life Ins. Co., 148 N. Y. 117; WaU
son V. Gugmo, 204 id. 535.
There is nothing in the law creating the office of
special agent that gives the commissioner power to
appoint such special agents for any definite term, and
there is nothing in the statute fixing a definite term
for such special agents, and in the Excise Law as orig-
inally enacted, and the amendments thereto, the com-
missioner of excise at all times was given the power
to remove such special agents in his discretion.
Under chapter 177 of the Laws of 1919, which was
the appropriations made by the legislature for the
year beginning the 1st of July,. 1919, the legislature
limited the appropriation for special agents in the
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270 Heinemann v. State op New Yobk.
Court of Claims, January, 1921. [Vol. 114.
excise department to March 31, 1920. Under this
appropriation bill the comptroller was not permitted
to audit any claim presented by the claimant for April,
1919. The State Finance Law provides as follows:
**A state officer, employee, board, department or com-
mission shall not contract indebtedness on behalf of
the state, nor assume to bind the state, in an amount
in excess of money appropriated or otherwise law-
fully available.'' Laws of 1909, chap. 58, § 35.
When the legislature made an appropriation for the
payment of special agents under the Liquor Tax Law
and limited the appropriation for services for nine
months, the conunissioner could not incur any further
expense even if he chose so to do by retaining the
claimant. When the nine months had expired, in
which the legislature had made appropriations for
special agents, the commissioner wrote the claimant
that there was no appropriation by the legislature
beyond March 31, 1920, for special agents. This was
in eflfect a notification that the commissioner did not
any longer require the service of the claimant and a
further notification that he could not accept any serv-
ices for the state by the claimant. The claimant must
have known that under the State Finance Law the
commissioner was prohibited from incurring any fur-
ther expense or continuing the employment of the
claimant, and, therefore, the notification that there
was no appropriation was in effect a discharge of
the claimant by the commissioner. We do not think
that the claimant was api)ointed for any definite term,
and under section 7, chapter 39 of the Laws of 1909 it
was within the power of the commissioner to dis^
charge the claimant at any time.
Where an officer whose term is definite and fixed
has been prevented for a time through no fault of his
from performing the duties of his office, and has
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Heinemann v. State of New Yobk. 271
■
Misc.] Court of Claims, JaHuary, 1921.
during that time earned wages in another and differ-
ent employment, he cannot be compelled in an action
to recover his unpaid salary to deduct the amount so
earned for the reason that the salary belongs to him
as an incident in his office so long as he holds it, and
when improperly withheld he may sue for it and
recover it, and when he does so he is entitled to the
full amount, not by force of any contract but because
the law attaches the salary to the office, and there is
no question of breach of contract or resultant damage
out of which the doctrine evoked has grown. Fitz-
simmons v. City of Brooklyn, 102 N. Y. 538; Toumg v.
City of Rochester, 73 App. Div. 81. But this rule is
not applicable in this case for the reason that the
claimant was not appointed for any definite term and
for the further reason that the act creating the power
of the commissioner to appoint the claimant also
gave the commissioner power to discharge the claim-
ant at any time.
After the legislature had limited the appropria-
tions for special agents to March 31, 1920, it was the
duty of the commissioner of excise under the Finance
Law to notify the claimant and the commissioner
could no longer accept or continue his services or incur
any further expense by retaining the claimant.
The claimant urges upon us the case of O^Neil v.
State of New York, 223 N. Y. 40. This case is easily dis-
tinguishable from the claimant's case. In the O'Neil
case the claimant was appointed a commissioner
as a member of the state athletic commission, pur-
suant to chapter 779 of the Laws of 1911. This statute
fixed the term of office at five years and in that case
O'Neil was appointed for a term of five years and in
the statute giving the governor power to appoint him
there was no provision giving the governor power to
discharge such appointee. As the legislature failed to
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272 Best v. State op New Yobk.
Court of Claims, January, 1921. [Vol. 114.
make an appropriation for O^NeiPs salary he filed his
claim with the Conrt of Claims and it was held that he
was entitled to recover his salary because the law fix-
ing his term of office and his appointment was for a
definite term which had not expired.
The commissioner of excise in this case, in view of
the appropriation by the legislature for the claimant's
salary being limited to March 1, 1920, was obliged
to notify the claimant of the fact that no further
appropriation was made and he must in view of sec-
tion 35 of the Finance Law have understood that this
was a notification that his services would no longer
be required.
The claim of the claimant must, therefore, be dis-
missed.
Ackerson, p. J., concurs.
Claim dismissed.
Prank Best, as Administrator of William Best,
Claimant, v. State of New York.
Claim No. 16537.
(State of New York, Court of Claims, January, 1921.)
Highwasrs — immimity of state — when state not negligent in care
of highways — claims — Highway Law, § 176.
The state is always immune from actions or liability unless
it expressly waives such immunity and assumes liability.
(P. 278.)
By section 176 of the Highway Law (Laws of 1909, chap. 30,
as amended) the state assumes liability for defects in its high-
ways where the state highway is under the patrol system. (Id.)
It is not negligence on the part of the state to place gravel
upon the dirt part of a state highway, worn away from time to
time, and bring it up to the level of the macadam surface part
of the road. (P. 279.)
While claimant's intestate, a boy about seven years of age, was
riding as a passenger on an auto bus whidi was being driven
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Best v. State of New York. 273
Misc.] Court of Claims, January, 1921.
along a state highway operated under the patrol system, the
steering gear of the bus broke and the driver could neither
guide nor control it. H^ applied both the front and emergency
brakes but the momentum carried the bus along for some dis-
tance, and while so moving the left front wheel ran on the
hard surface of the macadam road and the right wheel ran on
the loose gravel part of the road, thus deflecting the course of
the bus toward the north edge of the road. When the bus got
to the edge of the road it had almost stopped, but still had
momentum sufftcient to bring the right front wheel over the
edge of the road when the bus overturned, dropped to the
bottom of the embankment in the field adjoining and in going
down it struck the top of the retaining wall and tore some of it
out. Claimant's intestate was caught between the top of the
seat in the bus and the bottom of the embankment and was so
injured that within a short time he died. Just before the acci-
dent the state had placed on each side of the macadam part
of the road at the place of the accident several inches in thick-
ness of loose gravel and had brought the sides up to a level
with the macadam part of the road and left the dirt and gravel
to become hard and packed by the use of the public, but at the
time of the accident the gravel had not become hard or packed.
Held, that the conditions as they existed at the time of the
accident were not '' defects " within the meaning of section 176
of the Highway Law and the claim herein will be dismissed on
the ground that the state was not negligent in failing to antici-
pate the emergency that occurred at the time of the accident.
Claim for personal injuries.
Daniel V. McNamee and R. M. Herzberg, for claim-
ant.
Edward M. Brown, deputy attorney-general, for
State of New York.
MoBSGHAUSER, J. The claimant presents a claim
against the state alleging that his intestate was
injured on June 15, 1919, through the negligence of the
state, from which injuries the intestate died, and which
negligence the claimant asserts was caused by certain
defects in a state highway while under the patrol
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274 Best v. State of New Tobk.
Court of Claims, January, 1921. [Vol. 114.
system and which defect was the cause of the claim-
ant's intestate being injured.
On the trial both claimant and the state consented
that the court view the location where the accident
occurred, and further consented that such view should
be had in the presence of the attorneys for the claim-
ant and in the presence of the engineers of the state.
Pursuant to such consent and under the provisions of
section 268. of the Code of Civil Procedure the court
viewed the highway and the land surrounding and the
conditions existing at the place of the accident.
The intestate was a boy of about seven years of age
living with his parents at Philmont, N. Y. On the day
in question he was a passenger on an auto bus which
carried passengers between Hudson and Philmont,
Columbia county, N. T. At that time the bus was
traveling from Hudson to Philmont going in a westerly
direction, and while approaching Mellenville, and a few
feet east of the place of the accident the steering gear
of the bus broke and the driver of the bus could not
guide or control it.
At this point the highway was eighteen feet in
width, substantially straight and level, running east
and west. Further west from the place of the accident
there was a slight curve towards the north, the begin-
ning of which was over one hundred feet westerly from
the place where the accident occurred. At the begin-
ning of this curve the land adjoining on each side of
the road was substantially level with the road, and up
to that point the road was straight and level. The
highway had fourteen feet of macadam surface, and
on each side of this macadam surface there was four
feet of dirt surface. The dirt part of the road wore
away from use, and to prevent an abrupt shoulder and
to make it safe for travel the state from time to time
placed gravel on the dirt road to bring the surface of
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Best v. State of New York. 275
Misc.] Court of Glaims, January, 1921.
the dirt part of the road level with the macadam part.
Just before the accident the state placed on each side
of the macadam part of the road at the place of the
accident several inches in thickness of loose gravel and
brought it up to a level with the macadam part of the
road and left the dirt and gravel to become hard and
packed by the use of the public. At the time of the
accident the gravel had not become hard or packed at
this place. For several hundred feet the surface of the
land on the south was about level with the highway,
but on the north for the same distance there was an
abrupt fall or decline of about twelve feet from the
edge and top of the dirt roadway to the bottom of the
embankment. There was at the time no guard rail or
other barrier placed at the edge of the highway on
the north where the embankment existed. From the
place of the accident along the bottom of the embank-
ment and running parallel with the road the land
sloped upward for about one hundred feet in each
direction until it reached the level surface of the land
adjoining the highway both east and west of the place
where the accident occurred. Before any road was
built at this point there was a large basin, and origin-
ally a country road was built across the north end of
this basin about four feet below the surface of the
present state road. From the east and west sides of
the edge of the basin as the road was orrginally built
there was a descent each way toward the place of the
accident so that the surface of the old road on its north
side was about three feet below the level, and on the
south side about nine feet above the level, of the sur-
face of the land adjoining the roadway. When the old
road was built it was done by filling up the hollow
between the east and west edges of this basin, and on
the north side of this fill was placed a retaining wall
made of field stone, dry laid, running parallel with the
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276 Bbbt v. State of New York.
Court of Claima, January, 1921. [Vol. 114.
road for about 100 feet, commenciiig about thirty feet
east and continuing to about seventy feet west of the
place where the accident occurred. When the state
road was constructed the north line or edge of the
state road was placed about three feet southerly from
the north edge of the old road, and three feet from the
edge of this stone wall, and another fill was made rais-
ing the road about four feet so as to make the state
road substantially straight and level at this point.
When the steering gear of the bus broke the driver
of the bus lost control of it so that it could not be
guided. He applied both his foot and emergency
brakes, but the momentum carried the bus along for
some distance, and while so moving his left front
wheel ran on the hard surface of the macadam road
and the right wheel ran on the loose gravel part of
the road, and this deflected the course of the bus
toward the north edge of the road. It continued its
course very slowly, and when it got to the edge of the
road had almost stopped, but still had momentum
sufficient to bring the right front wheel over the edge
of the road, and at that moment the bus overturned
and dropped to the bottom of the embankment in the
field adjoining. In going down it struck the top of
the retaining wall and tore some of it out. The intes-
tate was caught between the top of the seat in the bus
and the bottom of the embankment, and was so injured
that within a short time after the injury the child died
from the effects thereof. The claimant asserts that
the state road at the point of the accident was defective
because the state had placed loose gravel on the side
of the road and failed to erect a guard or barrier along
the north side or edge thereof ; and that by reason of
these defects the accident occurred from which the
deceased received his injuries which caused his death.
The state asserts that the deceased was guilty of
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Best v. State of New York. 277
Misc.] Court of Claims, January, 1921.
contributory negligence and that it was not negligent
in putting loose gravel on the road and not negligent
in failing to place a guard or barrier at this point,
and that a guard is only placed along embankments
and dangerous places to warn persons traveling on
the highway of such danger, and not placed there to
protect the travel from going over such bank by build-
ing it strong enough to prevent vehicles from breaking
through the barrier and going over such embankment.
It was not negligence for the state to place loose
gravel on the surface of the dirt road for the purpose
of bringing it up to the level of the macadam. It
could not permit the dirt roadway adjoining the
macadam road to wear down so as to make an abrupt
shoulder as this would make it dangerous for ordinary
travel and we do not think it was negligence for the
state to fail to roll or pack this gravel down as no
amount of packing or rolling would prevent a heavy
vehicle from cutting into it.
Originally there was no liability on the part of the
town for any defects in its highways and under the
common law the commissioner of highways or officers
exercising similar function were held liable for dam-
ages if they failed in their duty in keeping highways
reasonably safe for public travel when they had
sufficient funds to repair such highways.
The legislature by section 74, chapter 30 of the Laws
of 1909 made towns liable for damages sustained by
reason of defects in highways sustained by persons
traveling over such highways and which statute creat-
ing such liability reads as follows : ** Every town shall
be liable for aU damages to persons or property sus-
tained by reason of any defect in its highways or
bridges, existing because of the neglect of any town
superintendent of such town.**
Primarily the state is not liable for negligence and
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278 Best v. State of New York.
Court of Claims, January, 192L [YoL 114.
cannot be sued in its courts nor made liable for dam-
ages. This is in consequence of its sovereignty and
the state is always immune from actions or liability
unless it expressly waives such immunity and assumes
liability. Smith v. State of New York, 227 N. Y. 405 ;
Lewis V. State of New York, 96 id. 71 ; Rexford v. State
of New York, 105 id. 229.
By section 176 of the Highway Law, being chapter
30 of the Laws of 1909, and amendments thereto, the
state assumed liability for defects in its highways
where the state highway was under the patrol system
and the statute assuming such liability reads as
follows: ** The state shall not be liable for damages
suffered by any person from defects in state and
county highways, except such highways as are main-
tained by the state by the patrol system, but the
liability for such damages shall otherwise remain as
now provided by law, notwithstanding the construc-
tion or improvement and maintenance of such high-
ways by the state under this chapter.''
Section 74, chapter 30 of the Laws of 1909, being
the Highway Law, wherein the town was made liable
for damages, created liability only where injury was
caused by reason of defects in its highway and the
state when it assumed liability by an enactment
through the legislature assumed such liability only for
defects in its highways under the patrol system, so
that in each case in giving a right of action the legis-
lature predicated the right to recover upon defects
in the highway; and it must be assumed that when
the state, through its legislature, assumed liability
and used the word ^' defect '' in the statute, that this
language was to receive the same interpretation and
construction as had been given to the word <* defect "
by judicial interpretation and construction of the act
bQldin^ tovnp liftWe iox defects of highways. Tbo
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Best v. State of New Yobk. 279
Misc.] Court of Glauns, January, 1921.
state when it created a tribunal to hear, try and deter-
mine claims against it provided, ** in no case shall any
liability be implied against the state, and no award
shall be made on any claim against the state except
upon such legal evidence as would establish li£j)ility
against an individual or corporation in a court of law
or equity." Code Civ. Pro. § 264. The state in
keeping its highways in repair, to make them safe for
public travel, was obligated to place gravel upon the
sides of macadam roads from time to time as they
wore away from use by the public to prevent an abrupt
shoulder being created or made ; and we do not think
it was negligence on the part of the state to follow
the ordinary custom of placing loose gravel on the
dirt part of the ordinary constructed state highway
and to bring it up to the level of the macadam sur-
faced part of the road. Sharot v. City of New York,
177 App. Div. 869 ; affd., 226 N. T. 679 ; King v. Village
of Port Ann, 180 id. 496; Flanshurg v. Tovm of
Elbridge, 205 id. 423.
There can also be no question that when two causes
combine to produce injury to a traveler upon a high-
way both of which are in their nature proximate, the
one being a palpable defect in the highway and the
other some occurrence for which neither party is
responsible, the defendant is liable provided the injury
would not have been sustained but for such defect.
Ring v. City of Cohoes, 77 N. Y. 83 ; Sweet v. Perkins,
196 id. 482; Thompson v. Town of Bath, 142 App. Div.
331.
But before this rule is applicable to this case it
must be established that the state was guilty of
negligence by permitting defects to exist in its
highway. We have examined many authorities
where, under the statute holding the towns liable
for defects, towns were held liable for failure
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280 Best v. State of New Yobk.
Court of Claims, Jazraaryy 1921. [Vol. 114.
to erect barriers, but in each of these cases
the failure to erect a barrier and for which the
town is held liable, the facts were much different
than they are in this case. Usually there were circum-
stances which made the highway dangerous owing to
the fact that there was a sharp curve, a narrow road,
a steep hill, or many other circumstances which
ordinarily justified a jury in finding that the commis-
sioner of highways of the town was negligent in not
placing a barrier at such locations. And while it is
said the question of negligence and whether a barrier
should be placed along the highway for the protection
of the public is a question of fact for the jury, yet as
was said in the case of Lane v. Toum of Hancock, 142
N. T. 510, by Judge O'Brien writing the opinion, on
page 519: ** The elements which enter into the ques-
tion of negligence are generally of such a nature as to
make it a question of fact. Even where the general
facts are not in dispute, as here, but the inference to
be drawn from them is not clear and certain, but
doubtful, the case must be submitted to the jury. But
in every case there is always a preliminary question
for the court as to whether there is any evidence upon
which a jury could properly find a verdict for the
party producing it, and upon whom the burden of
proof is imposed. If there is not the court must direct
a non-suit or a verdict as the case may require.**
This rule was followed in Lane v. Town of Hancock,
142 N. T. 510; Coney v. Totvn of OUboa, 55 App. Div.
111.
In the case on trial the roadway was twenty-two feet
in width. It was perfectly straight for a long distance,
was substantially level with the lands adjoining on one
side and with an embankment of about twelve feet at
the deepest point on the other side, and as the state
can only be held liable where the same state of facts
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Bbbt v. State of New York. 281
Mise.] Court of Claims, January, 1921.
would make a town liable for defects in its highway
the same rule should be applied in each case. Under
the circumstances if this action was against a town
the town under the authorities would not be liable
because the town or its commissioner could not reason-
ably be held to anticipate an emergency of the kind
that occurred in this case.
There are many authorities in this state which
hold where the conditions are similar to those in the
case on trial and where an emergency occurred which
caused an accident, that such condition was not a
defect and it was further held that it was not negli-
gence on the part of its commissioner to fail to erect
barriers at such places.
It has recently been decided by the Appellate
Division, third department, where the circumstances
were the same as they are in this case where the plain-
tiff was driving an automobile truck upon an improved
macadam highway, smooth and level for twenty feet
in width, and the automobile locked wheels with a
passing buggy, and in doing so the automobile turned
at right angles to the road and went head over the
embankment, that the commissioner of highways was
not negligent in failing to erect barriers at a location
of this kind. And it was further held that he was
under no duty to anticipate such an emergency.
Dorrer v. Town of Callicoon, 183 App. Div. 186,
Under the former rule where the commissioner was
liable, and after the enactment of the statute making
the town liable for defects in the highway, it has fre-
quently been held that the town was not an insurer of
the safety of persons traveling upon the highway, but
was only required to use ordinary prudence and care ;
and the commissioner and town were held to the
sensible rule which required them to exercise ordi-
nary care, and at no time was the commissioner
expected to anticipate some unusual and unforeseen
Digiti
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282 Best v. State of New Yobk.
Court of Claims, January, 1921. [Vol. 114.
event and gnard against it. It cannot be said that
a commissioner of highways under this rule wonld
have been expected to anticipate an emergency which
occurred in this case. While, as a rule, it is a question
\ of fact for a jury to determine whether the commis-
sioner was negligent from all the facts and circum-
stances, in this case there were no disputed facts as to
the location, distance and surrounding circumstances ;
and under numerous authorities where the roadway
was of sufficient width and was a straight road and
substantially level, it was held as a matter of law that
it was not negligence to fail to erect barriers or guards
where there was an embankment so near the road as
to permit vehicles going over the bank where some
sudden or unforeseen emergency occurs. Lane y.
Town of Hancock, 142 N. T. 510; Waller v. Town of
Hebron, 5 App. Div. 577; 17 id. 158; 131 N. Y. 447;
Hubhell V. TonkerSy 104 id. 434; Monk v. Town of New
Utrecht, Id. 552; Wade v. Town of Worcester, 134
App. Div. 51,
We do not think that the fact that there was loose
gravel on the dirt part of this road, placed there by
the state, was anything which would call upon a com-
missioner if he had charge of the road to anticipate
danger by reason thereof. It was a part of the duty
of the state to make that portion of the road safe for
travel and not allow it to wear down, and in doing this
the state was not negligent in failing to anticipate the
emergency that occurred at the time of the accident
in this case. The authorities cited hold that the con-
ditions as they existed at the time of the accident to
the claimant were not a defect. The claim of the claim-
ant should, therefore, be dismissed.
AcKERSoN, P. J., concurs.
Claim dismissed.
Digiti
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Matter of Milleb. 283
Mise.] Surrogate's Court, Delaware County, January, 1921.
Matter of the Application of Charles F. MoPherson,
as Executor of the Will of Eujl J. Miller^ to Carry
Out a Contract of Sale of Real Estate.
(Surrogate's Court, Delaware County, January^ 1921.)
Executors and administrators — when order will be made direct-
ing executor to convey real estate pursuant to contract —
wins — estoppel— Oode Oiv. Pro. § 2697.
Where by a deed of conveyance of a farm, containing a reser-
vation to the grantor of the house and lot, a part of the farm,
it was covenanted and agreed that the grantee, after the death
of his grantor or whenever she was ready to sell, should have
the option of buying the house and lot, an order may be granted
nnder section 2697 of the Code of Civil Procedure, .directing
the executor of the grantor to execute and deliver to said
grantee a deed of the house and lot.
The fkct that said grantee when the will was read, by which
his grantor devised the house and lot subject to the option
given to him, stated that he did not desire the house and lot
mentioned, did not estop him from claiming his rights undei
his contract with the testatrix.
Proceeding nnder section 2697 of the Code of Civil
Procednre by the executor of the last will and testa-
ment of Ella J. Miller, deceased, for an order of this
court directing the executor to execute and deliver a
deed
On or about the 21st day of March, 1917, the testa-
trix and Frank T. Miller entered into a contract under
seal by which it was provided that the testatrix having
on that date sold and conveyed to Miller her farm in
the town of Bovina, and having reserved the house and
lot which was a part of said farm, it was covenanted
and agreed that said Frank T. Miller should have the
privilege or option of buying said house and lot for the
sum of $1,500 after the death of the testatrix or when-
Digiti
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284 Matteb of Miller.
Surrogate's Court, Delaware County, January, 1921. [Vol.114,
ever she was ready to sell the property. The agree-
ment applied to and was to bind the heirs, executors
and administrators of the respective parties.
Ella J. Miller, the testatrix, thereafter on the 23d
day of Jnly, 1918, made her last will and testament
by the 2d paragraph of which she provided as follows :
'' Second. I give, devise and bequeath to my sister
Mrs. Elizabeth J. Bussell my house and lot in Bovina
Center, N. T., to her, her heirs and assigns forever,
said house and lot being subject to an option given by
me to Frank T. Miller. If at my death the said Frank
T. Miller accepts the house and lot at $1,500 the price
agreed upon, then I give and bequeath to my said
sister the $1,500 in place of the house and lot * * *. ^ *
Ella J. Miller died on or about the 3d day of June,
1920. Her last will and testament was duly admitted
to probate on or about the 14th day of June, 1920, and
letters testamentary issued to the petitioner herein.
A short time after the death of the testatrix her last
will and testament wa^ opened by Thomas Gordon, the
scrivener who drew the will, in the presence of her
relatives and was read to them. It is conceded that
when the 2d paragraph of such will was read, Frank
T. Miller stated that he did not desire the house and
lot mentioned, that he already had a house, and Mr.
Gordon stated, ** Then the property belongs to Mrs.
Euasell."
After the will was probated, Mr. Miller advised the
executor that he desired the place and told him he
wanted the deed. The . executor testifies that Mr.
Miller told him to this effect within a month after the
will was probated.
The executor has instituted this proceeding by a
petition under section 2697 of the Code and cited aU of
the i)erson8 interested in the estate of Ella J. Miller.
Elizabeth J. Bussell, the devisee mentioned in the
Digiti
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Matter of Miller. 285
Misc.] Surrogate's Court, Delaware County, January, 1921.
2d paragraph of the will, has appeared and objectgr to
an order being made directing a conveyance of the
property in question to Frank T. Miller upon the
ground that he has waived his right to receive a con-
veyance therefor.
Hamilton J. Hewitt, for Charles F. McPherson,
executor.
Fred W. Youmans, for Frank T. Miller.
Edward O'Connor, for Elizabeth J. RusselL
McNaught, S. The facts are undisputed in this
proceeding. The agreement made between the testa-
trix and Frank T. Miller on March 21, 1917, was to all
intents and purposes a contract for the conveyance
of real estate which bound not only the parties, but
their heirs, executors and administrators. The testa-
trix could not by any provision in her will or by any
act of hers deprive Miller of his rights under such
agreement. This fact is recognized by the language
of the 2d paragraph of the wilL The provision in both
the contract and will is practically the same in regard
to the time of performance. In the contract the lan-
guage is ** after her death;'* in the will the language
used is ** at my death."
In any event Miller would have been entitled to a
reasonable time in which to exercise his right to take
the property and was not bound to determine whether
he would take the property or not until such time after
the death of the testatrix as the will had been probated
and the executor duly qualified, for until such time no
one was in a position or would have been in a position
to perform the contract entered into by the testatrix.
The sole question is whether the statement or
remark made by Miller when the will was read con-
Digitized by
Google
286 Matter of Miller.
Surrogate's Court, Delaware County, January, 1921. [Vol. 114,
stituted a waiver and relinquishment of his rights
nnder the contract so that he could not thereafter
enforce the same.
The attention of the court has not been called to any
case directly in point, nor has the court been able
to discover a parallel case. The doctrine of waiver
is presented most frequently in those cases which have
arisen out of litigation over insurance policies, but it
is a doctrine of general application confined to no
particular class of cases. A waiver has been defined
to be the intentional relinquishment of a known right.
It is voluntary and implies an election to dispense
with something of value or forego some advantage
which the party waiving it might at its option have
demanded or insisted upon. Cowenhoven v. Ball, 118
N. Y. 234.
In the case of Draper v. Oswego County F. R. Assn.,
190 N. Y. 12, 16, Chief Judge Cullen, in speaking for
the court upon this subject, said: ** While that doc-
trine and the doctrine of equitable estoppel are often
confused in insurance litigation, there is a dear dis-
tinction between the two. A waiver is the voluntary
abandonment or relinquishment by a party of some
right or advantage. As said by my brother Vann in
the Kierncm Case (150 N. Y. 190) : * The law of
waiver seems to be a technical doctrine, introduced
and applied by the courts for the purpose of defeating
' forfeitures. • • • While the principle may not be
easily classified, it is well established that if the words
and acts of the insurer reasonably justify the conclu-
sion that with full knowledge of all the facts it
intended to abandon or not to insist upon the particu-
lar defense afterwards relied upon, a verdict or find-
ing to that effect establishes a waiver, which, if it
once exists, can never be revoked.^ The doctrine of
equitf^ble estoppel, or estoppel in pais^ is Xh^X a party
Digiti
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Mattbb op Milleb. 287
Misc.] Surrogate's Court, Delaware County, January, 1921.
may be precluded by his acts and conduct from assert-
ing a right to the detriment of another party who,
entitled to rely on such conduct, has acted upon it.
• * * As already said, the doctrine of waiver is to
relieve against forfeiture; it requires no considera-
tion for a waiver, nor any prejudice or injury to the
other party.** To the same effect, see Knarston v,
Manhattan Life Ins. Co., 140 Cal. 57.
At the time of the alleged waiver no person was in
a position to act upon it. It does not appear that Mrs.
Bussell or any other person has in any manner acted
upon said waiver or been in any way affected by it.
At the time the will was read to the relatives it was
unknown to any of the parties whether the will was
a valid testamentary disposition of the property of
the testatrix or not. It was unknown whether the will
would be admitted to probate or rejected, and no one
has been affected by the statement made by Frank T.
Miller.
The important question for determination is
whether Miller because of his statement when the will
was read is estopped from claiming his rights under
the agreement of March 21, 1917.
In New York Rubber Co. v. Rothery, 107 N. T. 310,
Judge Peckham defines an estoppel as follows: '* To
constitute it the person to be estopped must do some
act or make some admission with the intention of
influencing the conduct of another, or that he had
reason to believe would influence his conduct, and
which act or admission is inconsistent with the claim
he proposes now to make. The other party, too, must
have acted upon the strength of such admission or
conduct.''
A party may be precluded by his acts and conduct
from asserting a right to the detriment of another
Digiti
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288 Matter of Sullabd.
Surrogate's Court, Delaware County, January, 1921. [Vol. 114.
party, who, entitled to rely on such conduct, has acted
upon it. Clark v. West, 193 N. T. 349.
There is no evidence and it is not even contended
Mrs. Bussell has in any manner acted upon the state-
ment of Miller or been affected to her detriment by
reason of such statement.
It is, therefore, the conclusion of the court that the
objections of Mrs. Bussell must be overruled and that
Frank T. Miller under his contract with the testatrix
is entitled to receive from the executor a conveyance
of the property in question.
The court has not overlooked in reaching this con-
clusion the decision of the Court of Appeals in the
case of Alsens A. P. C. Works v. Degnon Contracting
C7o., 222 N. Y. 34.
A decree may be prepared in conformity to the
prayer of the petitioner herein and the form of the
same may be agreed upon by the parties, or may be
settled before the surrogate at Delhi any Monday.
Decreed accordingly.
Matter of the Judicial Settlement of the Accounts of
Jane M. Sullard as Temporary Administratrix of
the Estate of George F. Suu^abd, Absentee.
(Surrogate's Court, Delaware County, January, 1921.)
Surrogates' Courts — jurisdiction — when real estate of surety
not impressed with an equitable lien — executors and admin-
istrators — trustees.
Upon a stipulation between the temporary administratrix of
an absentee and the substituted trustee, the amount of the
defalcation or indebtedness of the absentee, as testamentary
trustee, was agreed upon and approved by the surrogate and
though no order was entered the amount so agreed upon was
accepted by the administratrix as a claim against the estate of
Digiti
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Matter of Sullard. 289
Misc.] Surrogate's Court, Delaware County, January, 1921.
the absentee. An order duly granted directing the sale of two
certain pareels of real estate of the absentee provided that the
right, lien or elaim of priority of claimant or equities of the
substituted trustee, who objected to the sale of one of the said
parcels, be transferred to the avails from the sale of the said
x«al estate and the right thereto determined when the matter
of the disposition of the proceeds of the sale of both parcels
came before the oonrt for determination. The father of the
absentee who was one of the sureties on his official bond as
testamentary trustee, devised the parcel, the sale of which was
objected to by the substituted trustee, to his widow for life,
since deceased, then to the absentee. Upon the judicial settle-
ment of the accounts of the administratnz, all necessary par-
ties being in court, held, that the court had jurisdiction to
determine the rights of the various creditors and claimants to
payment out of the proceeds of the real estate including the
parcel devised to the absentee by his father's will.
The claim of the substituted trustee to be entitled to priority
or preference of payment from the proceeds of the sale •of the
real estate devised to the absentee, on the ground that he
received it impressed with an equitable lien from his father
who was surety for the faithful performance of the absentee's
official duties as testamentary trustee and also subject to the
absentee's liability as an heir of such surety, cannot be allowed
and the proceeds of sale must be applied pro rata in satis-
faction of all of the obligations of the absentee.
JudciAL settlement of accounts of temporary
administratrix involving also the disposition of the
proceeds of the sale of certain real estate for the pay-
ment of debts.
George F. Sullard, a resident of the town of Frank-
lin in the county of Delaware, disappeared on the 27th
day of June, 1916, and has not since been heard from.
On the 15th day of July, 1916, his ^^^fe, Jane M.
Sullard, was appointed temporary administratrix of
his estate. The estate has since been administered
under the provisions of the Code of Civil Procedure
as that of an absentee.
The administratrix reduced the personal property
19
Digiti
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290 MatTEE of SuiiLABli.
Surrogate's Court, Delaware County, January, 1921. [Vol. 114.
to cash and a decree was made in this proceeding on
the 31st day of May, 1918, settling the account to such
date and directing the payment of a dividend of
twenty-four per cent to the creditors of the absentee.
The absentee was trustee under the last will and
testament of Anna D. Lockwood, deceased, for the
benefit of Nellie Gilliland and Josephine Otis. Sub-
sequent to the disappearance of George F. Sullard,
application was made to the Supreme Court for the
appointment of a substituted trustee and an order
was made appointing Clinton F. McHenry as sub-
stituted testamentary trustee of the estate of Anna
D. Lockwood. Such order further diiected the absentee
and the temporary administratrix to account for all
the acts and proceedings of said George F. Sullard
as such testamentary trustee.
It appears from the record that thereafter the
administratrix filed an account in the Supreme Court
but it does not appear whether an order was made in
relation thereto or not. The record discloses that
the substituted trustee presented a claim against the
estate of the absentee, and such claim was com-
promised, adjusted and accepted as a claim against
the estate of the absentee at the sum of $2,370.80 as
of May 31, 1918.
A proceeding was thereafter instituted by the
temporary administratrix for an order directing the
sale of the real estate of the absentee for the payment
of debts. It appears from the petition in such pro-
ceeding that the real estate consisted of two parcels,
one designated as parcel No. 1, known as the ** store
property,** and the other designated as parcel No. 2,
known as the ** house and lot.'* Upon the return day
of the citation in such proceeding, the substituted
trustee duly appeared and objected to the sale of that
portion of the real estate designated as parcel No. 1
Digiti
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Matter of SulliArd. 291
- — I ■ — ~ — — — — .— ^-^.^-^^— — — — —
Misc.] Surrogate's Court, Delaware County, January, 1921.
upon the ground that such real estate was owned by
Albert E. SuUard, the father of the absentee and one
of the sureties upon his oflBcial bond as trustee of the
estate of Anna D. Lockwood, and alleging the absentee
had failed to account for moneys received by him as
such trustee, and the parcel in question was impressed
with a lien in the sum of $2,370.80 in favor of the trust
estate. An order was thereupon made by the then
surrogate on the 28th day of October, 1918, directing
the sale of both parcels, but providing, after reciting
the objections of the substituted trustee, that the right,
lien or claim of priority of payment or equities of the
substituted trustee be transferred to the avails from
the sale of the said real estate and the right thereto
be determined when the matter of the disposition of
the proceeds came before the court for determination.
Parcel No. 1 was thereafter sold for the sum of $1,625.
It is conceded that parcel No. 1 was owned by Albert
E. Sullard, the father of the absentee in his lifetime;
that he was one of the sureties upon the bond of the
absentee as trustee under the will of Anna D. Lock-
wood, which bond was executed on the 9th day of
March, 1891; that Albert E. Sullard died November
19, 1898, leaving a last will and testament which was
duly probated and that Sarah Sullard, the widow of
Albert E. Sullard, died October 26, 1907.
It appears from the will of Albert E. Sullard that
the real estate known as parcel No. 1 was devised
to the widow for life and then to George F. Sullard,
the absentee, he becoming the owner thereof upon the
termination of the life estate of his mother.
The substituted trustee claims he is entitled to
preference and to priority of payment from the pro-
ceeds of the sale of parcel No. 1, alleging the bond of
the absentee and trustee was the joint and several
obligation of the principal and sureties and bound
Digiti
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292 Matter of SuLiiAiu).
Surrogate's Court, Delaware County, January, 1921. [Vol. 114.
themselves, their heirs, executors and administrators,
thereby creating an equitable lien upon the real estate
of the surety, Albert E. Sullard. He claims when the
real estate passed under tho will of Albert B. Sullard
to the absentee, George F. Sullard, the absentee took
the property devised to him subject to the liability of
the surety upon the bond and impressed with an
equitable lien, and for such reasons he is entitled to
priority of payment, and the proceeds of the sale of
said parcel should be first applied in payment of the
amount it is conceded is due from the absentee as
trustee.
Wm. F. White (Samuel H. Fancher, of counsel), for
Jane M. Sullard, administratrix.
Albert F. Barnes, for Clinton F. McHenry, substi-
tuted trustee under the last will and testament of
Anna D. Lockwood.
Seybolt & Seybolt, for Alton 0. Potter.
Edwin A. Mackey, for George D. Chamberlain and
others.
McNaught, S. The amount of the defalcation or
indebtedness of George F. Sullard, the absentee, as
trustee under the will of Anna D. Lockwood was
agreed upon by a stipulation between the administra-
trix and the substituted trustee and approved by the
then surrogate of the county of Delaware. The
amount was fixed at the sum of $2,370.80. It does not
appear that there has been a judicial settlement or an
order entered in any court fixing this amount, but it
appears to have been agreed upon and approved by the
surrogate.
Two questions are presented for determination:
Digiti
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Matter of Sullard. 293
Misc.] Surrogate's Court, Delaware County, January, 1921.
First, the jurisdiction of the Surrogate's Court to
determine the rights of the various creditors and
claimants to payment of their claims out of the pro-
ceeds of the sale of the real estate of the absentee,
including parcel No. 1 devised to him by the will of
his father, Albert E. Sullard. Second, whether the
claim of the substituted trustee is entitled to priority
or preference of payment over the claims of other
creditors to the proceeds of parcel No. 1, the so-called
store property owned by Albert E. Sullard in his life-
time.
All of the necessary parties are in court. Every
person who could in any manner be interested in the
determination of the questions involved is a party to
this proceeding There is no dispute as to title of
the property sold, the source from which title was
derived, or the amount of the proceeds. The claims
against the absentee have been fixed and determined.
The amount due the substituted trustee has been
settled, agreed upon and approved by the surrogate.
The sole question is whether the proceeds shall be
applied pro rata to all the debts of the absentee or
whether the substituted trustee is entitled to have
all of the proceeds of the sale of the store property
applied in payment of his claim.
The Surrogate's Court has jurisdiction upon a judi-
cial settlement to try and determine all questions legal
and equitable arising between all of the parties to the
proceeding. Code Civ. Pro. § 2510. In proceedings
to sell real estate for the payment of debts, the Surro-
gate's Court has jurisdiction to try and determine all
claims, demands or charges relative to the proceeds of
such sale. Code Civ. Pro. § 2706.
The surrogate has jurisdiction and power to deter-
mine the validity of all claims against or upon an
estate. People ex rel. Adams v. Westhrook, 61 How.
Digiti
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294 Matter of Sullard.
Surrogate's Court, Delaware County, January, 1921. [Vol. 114.
Pr. 138; Kammerrer v. Ziegler, 1 Dem. 177; Matter of
Haxtun, 102 N. T. 157; Matter of Pirie, 133 App. Div.
4t31i Matter of Roberts, 214 N. Y. 369.
The claim of the substituted trustee to preference
and priority of payment over all other creditors, of
the proceeds of the sale of the store property, is based
upon the theory that Albert E. Sullard, from whom
the absentee derived title, and who was the owner of
the property during his lifetime, being also a surety
upon the bond of the absentee as trustee, had im-
pressed such property with an equitable lien by becom-
ing surety for the faithful performance of his oflScial
duties by the trustee. It is, therefore, contended that
when the absentee received the property by devise
from his father, he received it impressed with such
lien and also subject to his liability as an heir of the
surety.
Clearly the assumption of liability as a surety by
Albert E. Sullard did not create any lien upon his
real estate. The bond was a guaranty the principal
would perform his duty. Until such time as a default
occurred it was a contingent liability. It is not
claimed that a default had occurred, nor that there
was any existing debt due from Albert E. Sullard nor
any claim against him aside from his contingent
liability upon the bond at the time of his death.
The liability of Albert E. Sullard as surety was
such that his liability upon the bond after his death
became and remained the liability of his estate and
his heirs. The death of one who is a surety upon an
official bond does not relieve his estate of liability for
the principal's after management of his trust. Mun-
dorff V. W angler, 57 How. Pr. 372 ; Stevens v. Stevens,
2 Dem. 469; Holthausen v. Kells, 18 App. Div. 80.
The obligation of the surety bound himself, his
heirs, and legal representatives. The estate of the
Digiti
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Matter of Sullard. 295
Misc.] Surrogate's Court, Delaware County, January, 1921.
surety, and, therefore, his heir, George F. Sullard,
was liable upon the bond for the subsequent default
of the trustee, but there was no liability fixed and
determined at the time of the death of Albert E.
Sullard, the surety. The property, therefore, could
not be sold, and it is not contended that it has been
sold, as property of the surety to satisfy an obligation
upon his part which was in the nature of a debt.
The exhaustive briefs presented by able counsel fail
to call the attention of the court to a single authority
in this or any other jurisdiction which is directly in
point. Careful research has failed to disclose a case
where the same claim has been made under a similar
state of facts.
The situation presented resolves itself into this con-
dition. The principal by devise becomes the owner of
the real property of his deceased surety. He, there-
fore, is principal and as heir of the surety vested with
the estate still liable upon the bond. A default occurs
(when does not appear) and it is determined there is
due from the estate of the principal a certain sum
(in this case, $2,370.80). The successor of the prin-
cipal now claims to be entitled to the full proceeds of
the parcel of real estate which has so descended by
devise to the original trustee because he received it
impressed with a lien. This contention it is impossible
to sustain as the bond itself created no lien.
The only other theory upon which the claim of the
substituted trustee could be sustained is under the
provisions of section 101 of the Decedent Estate Law,
formerly section 1843 of the Code, which provides:
" The heirs of an intestate, and the heirs and devisees
of a testator, are respectively liable for the debts of
the decedent, arising by simple contract, or by
specialty, to the extent of the estate, interest, and
right in the real property, which descended to them
Digiti
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296 Matter or SuLiiARD.
Surrogate's Court, Delaware County, January, 1921. [Vol.114.
from, or was effectually devised to them by, the
decedenf
The liability upon the death of the surety became
not the liability of the testator Albert E. SuUard, but
of the estate held by the devisee George F. Sullard to
perform created by reason of the execution of the bond
by the surety. When the property descended by
devise to George F. Sullard, the estate was liable for
the debts of Albert E. Sullard and also responsible to
answer for his liability as surety upon the bond; but
at that time the liability was only contingent, it was
not fixed and determined, and no debt actually existed
on the part of Albert E. Sullard. If no lien upon the
land was created by the mere execution of the bond,
and if no debt existed at the death of Albert E. Sullard,
then all the liability of George F. Sullard was his
obligation as heir holding the estate to perform as
surety upon the bond if called upon to do so.
Section 101 of the Decedent Estate Law does not
create an absolute liability against the heirs, but
merely provides a method for enforcing an existing
liability of the decedent against his assets which have
come into the hands of his heirs. Hill v. Moore, 131
App. Div. 365.
The liability under this provision extends only to
the real property acquired by descent or devise at the
time of the decease, and does not reach that which
may be made out of it by the skill, management or
labor of the heir or devisee. Clift v. Moses, 116 N. Y.
144, 158.
An action under section 101 of the Decedent Estate
Law is not an action to enforce, but an action to
acquire a lien upon real property, and to authorize its
sale for the purpose of satisfying a debt. Rogers v.
Patterson, 79 Hun, 483; Covell v. Weston, 20 Johns.
Digiti
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Mattbe op Sullabd, 297
Misc.] Surrogate's Court, Delaware County, January, 1921.
414; Hauselt v. Patterson, 124 N. T. 349; Mortimer v.
Chambers, 63 Hun, 335.
It is an action in equity having the nature of a
proceeding in rem in such sense that when the land
has not been aliened by the heir, the judgment must
direct that the debt of the plaintiff be collected out of
the real property. Hauselt v. Patterson, supra.
" The basis of the action is the debt which the
deceased owed the plaintiff ; but that is not the gist of
it. It is not an action for the recovery of money only,
although the ultimate object of it is to obtain money;
• * • but it is an equitable action to reach certain
real estate, which the deceased devised to the defend-
ants and to authorize its sale for the purpose of satis-
fying a debt that the deceased owed the plaintiff. It
is strictly an action in rem.^^ Wood v. Wood, 26 Barb.
356.
The general rule is well settled that sureties are
not liable until there is a default of their principal,
and such default has been established. It has been
repeatedly held that no action can be maintained
against such sureties until an accounting has been had,
or until their principal or personal representative has
disobeyed some valid order or decree of the court hav-
ing jurisdiction. Hood v. Hood, 85 N. Y. 561 ; Rouse
v. Payne, 120 App. Div. 667; Haight v. Brisbin. 100
N. Y. 219; Perkins v. Stimmel, 114 id, 359; French
V. Dauchy, 134 id. 543.
In the administration of this estate it has been deter-
mined that the absentee as trustee under the will of
Anna D. Lockwood is indebted to the trust estate in
a certain sum. The substituted trustee has presented
a claim and the claim has been compromised and
adjusted and the amount determined to be due the
substituted trustee representing the trust estate has
been fixed. The estate of the absentee is liable to the
Digiti
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298 Matter of Sullard.
Surrogate's Court, Delaware County, January, 1921. [Vol. 114.
Bubstituted trustee as a creditor the same as it is
liable to other creditors. The substituted trustee now
seeks under this state of facts to procure a decree
directing the proceeds of the sale of the property
which came to the absentee from his father, the surety,
shall be paid to him in satisfaction of such debt in
preference, and prior to the claims, of all other cred-
itors.
As before stated no case directly in point has come
to the attention of the court, although it has been held
that a creditor holding a specialty debt due from an
intestate and coming against the estate of his adminis-
trator on account of a devastavit can only take equally
with such administrator's simple contract creditors.
Carow V. Mowatt, 2 Edw. Ch. 56.
The claim of the substituted trustee cannot be
allowed. The property owned by the absentee and
which was sold in this proceeding for the payment
of his debts must be applied pro rata in satisfaction
of all of his obligations.
The estate of the absentee is liable as principal to
account for the trust funds in his possession, but the
remedy as to the sureties, if the funds coming into
the hands of the temporary administratrix are insuf-
ficient to pay all of the debts, including such fund, is
not in this proceeding.
A decree may be prepared in conformity with this
opinion. The question of allowances will be held
open until such time as the decree is noticed for settle-
ment.
Decreed accordingly.
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Matter of Fredenburg. 299
Misc.] Surrogate's Court, Delaware County, January, 1921.
Matter of the Judicial Settlement of the Account of
Arthur S. Reynolds, as Executor of Etta Freden-
burg BuRCHAM, as Executrix of David Fredenburg,
Deceased.
(Surrogate's Court, Delaware County, January, 1921.)
Wills — coxurtruction of — intention of testator — life estates —
gifts — power of sale — sale of real estate — executors and
administrators.
Where an estate is given in one part of a will in clear and
decisive terms, it cannot be taken away or cut down by raising
a doubt as to the meaning or application of a subsequent clause,
nor by any subsequent words which are not as clear and decisive
as the words granting the estate. (P. 304.)
The intention of the testator as clearly shown by a certain
paragraph of his will, which was drawn by an inexperienced
layman, was to give to his wife all his estate, real and per-
sonal, subject to two conditions: 1. That she should provide
a suitable home for his children, maintain them and give them
an education. 2. That when they respectively arrived at the
age of twenty-one years, she should pay each of them $500,
except that she should pay to or for the benefit of one son, the
sum of $700. Held, that as to give effect to a succeeding pro-
vision, that in the event of the death of the mother before any
of the children attained their majority, testator's property
should be sold and divided and go to his four children share and
share alike, would of necessity convert the estate of the wife
from a fee into a conditional life estate until at least one of
the chOdren became of age, such provision should be con-
strued as precatory, and so construed was consistent with the
absolute gift to the wife. (P. 305.)
A still later provision, that in the event of the death of the
wife after either of the children arrived at the age of twenty-
one years and they had received the sums mentioned, then the
estate should be sold and the proceeds given to the children in
equal shares with deduction of sums already paid to them, is so
indefinite and ambiguous that it cannot be given effect to out
down the gift to the wife. (P. 306.)
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300 Matter op Fredbnburq.
Surrogate's Court, Delaware County, January, 1921. [Vol. 114.
A provision vesting in testator's wife full power to seQ and
convey any portion of the estate with the consent and approval
of one son and the daughter, the proceeds of such sale to be
applied to any debt that might be a claim against the estatOi
was not necessarily to be construed as indicating any intention
of testator to give Ms wife only a life estate. (Pp. 306, 307.)
The absolute gift to the wife was not rendered void because
of her failure to pay the sums as conditioned by the gift to
her, because the children could enforce the payment of the
amount due or to which they were entitled under the provision
of gifts to the wife, against her estate. (P. 308.)
Judicial settlement of account by executor of
deceased executrix, in which proceeding judicial con-
struction of the will of David Fredenburg is involved.
The last will and testament of David Fredenburg,
a resident of the town of Roxbury, Delaware county,
was admitted to probate January 3, 1903, and letters
testamentary issued to Etta Fredenburg, the wife of
the testator, the executrix named in said will.
The testator at the time of his death was the owner
of a farm of land with personal property thereon sit-
uate in the town of Roxbxiry. The testator was sur-
vived by his wife and four infant children, one daugh-
ter and three sons. The executrix took possession of
the real and personal property, conducted and oper-
ated the farm and transacted all business thereafter
as her own and in her own name. The executrix sub-
sequently remarried. No inventory was made or filed
and no account was rendered by the executrix in
her lifetime.
The eldest son, Harry, became twenty-one years of
age in the year 1907 and died in the year 1908 sur-
vived by his mother, one sister and two brothers. The
daughter, Carrie, became twenty-one years of age in
the year 1909, was married in 1910 and died Septem-
ber, 1919, survived by her husband and one son, Frank
Peckham. The son Charles became twenty-pne yew*
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Mattes of Pbbdbnburq. 301
Misc.] Surrogate's Court, Delaware County, January, 1921.
of age in the year 1911 and the son George in the year
1918, both of whom are living, and together with the
infant survivor of the deceased daughter are parties
to this proceeding.
During the time the widow and executrix was in
occupation and operating the farm left by the testa-
tor, she improved the property, paid the debts of the
testator and erected a new bam upon the farm at an
expense of approximately $2,300.
The will of the testator which must be construed
in this proceeding, after directing the payment of
debts and funeral expenses, provided as follows:
'' Second. I give and bequeath to my beloved wife
Etta Fredenburg all of my real estate and personal
property of every kind and description of which I
shall die possessed provided
*' First. That she shall provide a suitable home for
my children clothe and feed them care for them in
sickness and in health and give them an education.
'' Second. That when my son Harry Fredenburg
shall arrive at the age of 21 years she shall pay to him
the sum of five Hundred dollars. When my daughter
Carrie Fredenburg shall arrive at the age of 21 years
she shall pay to her the sum of five hundred dollars.
That when my son Charles Fredenburg shall arrive
at the age of 21 years she shall pay to him, or deposit
with some suitable trust Company or Savings institu-
tion for his benefit the sum of Seven hundred dollars.
When my son George Fredenburg shall arrive at the
age of 21 years she shall pay to him the sum of five
hundred dollars.
^'Second. In the event of the death of my wife
before any of my children arrive at the age of 21
years it is my will that all of the property of which I
shall die possessed shall be sold and the proceeds of
such sale shall be divided in to four equal share which
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302 Matter of Fredenburg.
Surrogate's Court, Delaware County, January, 1921. [Vol.114.
shall be given to my children Harry, Carrie, Charles
and George share and share alike.
" Third. In the event of the death of my wife after
either of my children have arrived at the age of 21
years and they have received the sums hereinbefore
mentioned then my estate shall be sold and the pro-
ceeds of such sale shall be divided in to four equal
shares and given to my children Harry, Carrie,
Charles and George share and share alike except that
the sums already paid to them when they had arrived
at the age of 21 years shall be deducted from their
share.
'' Fourth. I will and ordain that my beloved wife
Etta Fredenburg with the consent and approval of
my son Harry Fredenburg and my daughter Carrie
Fredenburg, shall have full power and authority to
sell or convey any portion of my estate to any person
or persons and their heirs forever, the proceeds of
such sale to be applied to any debts that may be a
claim upon my estate."
No question is raised as to the account filed by the
executor of the deceased executrix. The principal
question for determination is whether under the terms
of the will of the testator, the property passed to the
widow, or because of the peculiar provisions of the
will, is now vested in the surviving sons and the infant
descendant of the daughter Carrie.
Ives & Craft, for Arthur S. Reynolds, executor, etc.
Leonard A. Govern, special guardian for Harry
Peckham, an infant.
George Fredenburg, individually and as adminis-
trator with the will annexed of David Fredenburg,
deceased, in person.
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Matter of Fredenburg. 303
Misc.] Surrograte's Court, Delaware County, January, 1921.
McNaught, S. The difficulties incident to con-
struing the will here involved furnish a forcible illus-
tration of the inadvisability of having a testamentary-
disposition of property drawn by an inexperienced
layman. It is a fundamental principle of the law relat-
ing to the construction of wills that the intention of
the testator must govern and must be given full force
and effect if such intention can be drawn from the
instrument propounded. It is a platitude that ** no
will has a brother.^' The diversity in wills is as great
as the difference in individuals. In most instances the
citation of numerous authorities are seldom of great
value or assistance except as they treat of similar
cases, or bear upon the general rules of construction.
By the 2d paragraph of the will bt the testator it
is manifest, standing alone, there would be but one
possible construction to be given to it, and that is that
by its terms Jit was the intention of the testator to give
to his wife all of his real estate and personal property
subject to two conditions : First, that she should pro-
vide a suitable home for his children, maintain them
and give them an education. Second, that when they
respectively arrived at the age of twenty-one years,
she should pay each one of them $500 excepting she
should pay to or for the benefit of the son Charles the
sum of $700.
The language of the 2d paragraph of the will and
the conditions numbered ** first '* and ** second '^ in
said paragraph are plain, unequivocal and free from
ambiguity. The difficulty arises when an attempt is
made to reconcile the provisions of the 3d and 4th
paragraphs with the absolute gift of the 2d pargraph.
By the two subsequent paragraphs it is provided,
first, that in the event of the death of the wife before
any of the children arrived at twenty-one years of age,
the property of the testator should be sold and divided
Digiti
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304 Matter of Frbdbnburq.
Surrogate's Court, Delaware County, January, 1921. [Vol.114.
into four equal shares and go to the four children
share and share alike. By the next paragraph it ifi
apparently provided that in the event of the death of
the wife after any of the children arrived at the age
of twenty-one years and they had received the sums
mentioned, then the estate should be sold and the pro-
ceeds divided into f^ur equal shares and given to the
children except that the sums already i)aid them
should be deducted from their share.
Where an estate is given in one part of a will in
clear and decisive terms it cannot be taken away or
cut down by raising a doubt as to the meaning or appli-
cation of a subsequent clause, nor by any subsequent
words which are not as clear and decisive as the words
granting the estate. Roseboom v. Rosehoom, 81 N. Y.
359; Clarke v. Leitpp, 88 id. 228; Campbell v. Beau-
mont, 91 id. 464; Matter of Gardner, 140 id. 122; Clay
v. Wood, 153 id. 134; Ooodwvn v. Coddington, 154 id.
283, 286; Banzer v. Banzer, 156 id. 429; Adams v.
Massey, 184 id. 62; Sands v. Waldo, 100 Misc. Rep.
288, 293, 294.
^' The rule that where clauses in a will are antag-
onistic the latter must stand as the last expression of
intention is never applied unless the last clause is as
clear as the first and cannot be reconciled therewith.
It is only when the later provision is as plain and
decisive as the earlier and the general intention of the
testator cannot be gathered from the general scope
of the will or otherwise, and when the two provisions
are wholly irreconcilable, and cannot possibly stand
together, that as a desperate remedy, resort is had to
the last clause as expressing the latest intent in order
to save one instead of sacrificing both.*' Adams v.
Massey, supra, and cases cited.
The gift to the wife as contained in the 2d para-
graph, being dear and unmistakable in its terms, we
Digiti
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Matter or Fredbnburg. 305
Mise.] Surrogate's Court, Delaware County, January, 1921.
are called upon to determine the effect of the two sub-
sequent paragraphs. The first of these provides : ** In
the event of the death of my wife before any of my
children arrive at the age of 21 years, it is my will that
all of the property of which I shall die possessed shall
be sold, and the proceeds of such sale shall be divided
into four equal shares which shall be given to my
children, Harry, Carrie, Charles and George share
and share alike/'
To give effect to the language of this paragraph
would of necessity convert the estate of the wife from
a fee into a conditional life estate until at least one
of the children of the testator arrived at the age of
twenty-one years.
It seems to the court the language of this clause
must be construed as the expression of a desire; that
the words used are properly construed as precatory,
and 80 construed are consistent with the absolute gift
in the preceding paragraph to the wife. The word
** will ** in the clause in question may properly be
regarded as the expression of a desire.
There are many authorities in which similar pro-
visions, although not expressed in the s-ame language
and qualified by precatory words, have been held abso-
lute. In many of the cases the question has arisen
upon wills more antagonistic in their expression to an
absolute devise than is the instrument under consid-
eration. Foose V. WUtmoref 82 N. T. 405 ; Lawrence
V. Cooke, 104 id. 632; Matter of Gardner, 140 id. 122;
Clay V. Wood, 153 id. 134; Post v. Moore, 181 id. 15.
The succeeding clause reads as follows: ** In the
event of the death of my wife after either of my chil-
dren have arrived at the age of 21 years, and have
received the sums hereinbefore mentioned, then my
estate shall be sold and the proceeds of such sale shall
be divided into four equal shares and given to my ehil-
20
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306 Matter of Fredenburg.
Surrogate's Court, Delaware County, January, 1921. [Vol. 114.
dren Harry, Carrie, Charles and George share and
share ahke, except that the sums already paid to them,
when they had arrived at the age of 21 years shall be
deducted from their share."
It seems impossible to reconcile the provisions of
this paragraph with the preceding paragraphs of the
will. The language is not clear and definite. The
meaning and the intention of the testator can hardly
be ascertained from the language used. If literally
followed, it would seem that compliance with the pro-
vision, in the event of the death of the wife after any
of the children arrived at the age of twenty-one years,
would result in partial intestacy. This certainly
would be the result in the event of the death of the wife
after all of the children arrived at the age of twenty-
one years as is the situation here, for the reason
the testator directs that his estate shall be sold and
the proceeds of the sale equally divided between his
four children, with no provision that the heirs of such
children should share ; and then further provides that
the sums which may have already been paid to them
when they arrived at the age of twenty-one years,
under the conditions of the second proviso in the
2d paragraph of the will, shall be deducted from
their share, but makes no provision whatever as to
the disposition to be made of the sums so deducted,
and as to such sums, intestacy would result.
The clause is so indefinite and ambiguous it cannot
be given effect to cut down the gift to the wife, for
the intention to cut down the ^ft to the wife is not
expressed in the clear and unequivocal language
required under the authorities cited, supra.
Considerable stress is laid upon the language of the
succeeding paragraph of the will in which the testator
vests his wife with full power and authority to sell
and convey any portion of his estate with the con-
Digiti
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Matter of Fredenbtirg. 307
Misc.] Surrogate's Court, Delaware County, January, 1921.
sent and approval of his son Harry Fredenburg
and his daughter Carrie Fredenburg, the proceeds of
the sale to be applied to any debts that might be a
claim upon his estate.
It is contended this provision indicates the tes-
tator did not contemplate vesting title in his wife but
only to give her a life estate. The provision is not
necessarily to be construed in such manner. It seems
rather that the testator, desiring the home maintained
and having given all of the property to the wife,
coupled with the condition that she should maintain
the home, added a further condition by this clause of
the will by which he provided a way, if necessity
required, by which some of the property should be sold
for the payment of his debts and required as a condi-
tion that the eldest son and the daughter should con-
sent and approve of the sale.
It seems to the court that the construction of the
instrument in question already outlined is the only
possible construction to be given under the authori-
ties and as a matter of justice. It is of course true
the ** pole star" in the construction of wills is to
effectuate the intention of the testator, but it is incon-
ceivable to the court that the testator in this case own-
ing an ordinary farm with a small dairy, ever intended
to vest in his wife a life estate only, impose upon her
the burden of providing a suitable home for his chil-
dren, clothing, maintaining them in sickness and in
health and giving them an education, and then from
the income of such property should pay to each one
as they arrived at the age of twenty-one years, the
sum of $500, and to one the sum of $700 and at her
death the property should all belong to the children.
No question is raised but that the wife provided a
Iiome and cared for the children, but it appears the
condition relative to the payments provided for in the
Digiti
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308 Matter of PBEDENBUita.
Surrogate's Court, Delaware County, January, 1921. [Vol. 114.
2d paragraph of the will were not fully complied with
by the wife.
It appears the son Harry died a short time after
arriving at the age of twenty-one years without having
received his $500. The daughter married after arriv-
ing at the age of twenty-one years, and subsequently
died without receiving her $500. The son Charles is
still living but has not received the sum of $700 as pro-
vided in the will. The son George Fredenburg it is
conceded received $400 of his $500 after arriving at
the age of twenty-one years.
The failure to pay the sums as provided in the
second condition of the 2d paragraph of the will did
not render void the gift to the wife. The sons and
the daughter could enforce the payment of the amount
due or to which they were entitled under such provision
and may enforce the payment against the estate of
the deceased wife.
It is, therefore, the conclusion of the court that
under the will in question Etta Fredenburg took abso-
lute title to the real and personal property of David
Fredenburg, subject to the payment of his debts and
the performance of the conditions in the 2d para-
graph, and that such absolute estate was not divested,
limited or cut down by the subsequent provisions in
the succeeding paragraphs of the will.
A decree may be prepared in conformity with the
views above expressed and noticed for settlement.
Decreed accordingly.
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Matter of Dutf. 309
Misc.] Surrogate's Court, New York County, January, 1921.
Matter of the Estate of Michabl Dupp, Deceased.
(Surrogate's Court, New York County, January, 1921.)
Transfer tax— wliat subject to — estates in es^ectancy — willa--^
motions and orders — life estates — invalid exercise of power
of appointment.
The will of a decedent, who died in 1904, directed the division
of his residuary estate into two parts, the income from one to
be paid to his son for life, and on his death the share to pass
to his issue. In case no children survived the son, then the in-
oome was to be paid to decedent's daughter during her life,
and upon her death the share to pass to her issue, and if no
issue, then to whomsoever she should appoint by her wiU.
Alternative provision was also made in respect to the other
half, the income from which was to be paid to the daughter.
She died without issue in 1913, leaving her residuary estate to
her brother who died testate in 1918. In an action by the
executors of the son for the settlement of his account as trus-
tee under the will of his father, it was held that the attempted
exercise by the son, in his will, of the power of appointment
given to him under his father's will, was invalid, and that
there was a reversion in the estate of the father which passed
as if he died intestate, because no provision was made for the
disposition of the remainders in case of the failure of the exer-
cise of the power of appointment. It was also held that the
powers were contingent because they might be defeated if
either of the children of the father died leaving issue. In the
transfer tax proceedings in the estate of the father the ap-
praiser found the value of the life estates of the son and
daughter, but suspended taxation on the remainders because
of the powers of appointment thereover, and the order entered
on the appraiser's report contained no reference to the re-
mainders. Held, that a contention of the executors of the
father's estate that the latter part of section 220(5) of the
Tax Law (Laws of 1897, chap. 284) providing for the taxation
of the non-exercise of the power in the donee's estate, which
was in effect when the father died but repealed by chapter 732
of the Laws of 1911, which was in effect prior to the death of
the son, exempted the non-exercise of {he power from taxation,
fiovld not be sustained, f^^ since no transfer took place in the
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310 Matter of Duff.
Surrogate's Court, New York County, January, 1921. [Vol. 114.
donee's estate the l^slature was without power to tax the
property in his estate, the transfer tax must be paid on the
only transfer effected, which was in the donor's estate; hence
the taxation of the estates in expectancy was held in abeyance,
and they may be presently taxed against the persons in whom
they vested in possession and enjoyment on their full, un-
diminished value.
An application to vacate an order appointing a transfer tax
appraiser on the ground that the estate of the decedent herein
was not subject to further transfer tax, treated as a motion to
fix the tax without the appointment of an appraiser, and the
order entered will provide for vacating the order heretofore
made appointing the appraiser.
Application to vacate an order appointing an
appraiser.
Millard F. Johnson, for estate.
William W. Wingate, for State Comptroller.
Foley, S. This is an application to vacate an order
appointing an appraiser on the ground that the estate
of the decedent is not subject to further transfer tax.
Decedent died October 28, 1904. By his wiU he
directed that his residuary estate be divided into two
parts, the income from one of which was to be paid
to his son John for life, and on his death the share
to pass to John^s issue. In case no children survived
the son, then the income was to be paid to decedent's
daughter, Mary, during her life, and upon her death
the share to pass to her issue, and if no issue, then to
whomsoever she bhould api)oint by her will. Alter-
native provision was also made in respect to the other
half, the income from which was to be paid to
decedent's daughter. The daughter, Mary Carey, died
without issue in 1913, leaving her residuary estate to
her brother, John, who thereafter, and in the year
1918, died testate.
In an action in the Supreme Court by the execu-
Digiti
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Matter op Dufp. 31 1
Misc.] Snrrogate's Court, New York County, January, 1921.
tors of John for the settlement of his account as
trustee under the will of his father, Michael Duff, it
was held that the attempted exercise by the son in his
will of the power of appointment given to him under
his father's will was invalid, and that there was a
reversion in the estate of the father which passed as
if he died intestate, because no provision was made
for the disposition of the remainders in case of the
failure of the exercise of the power of appointment.
Duff V. Rodenkirchen, 110 Misc. Rep. 575; affd., on
opinion below, 193 App. Div 898. The powers were
held contingent because they might be defeated if
either of the children of decedent died leaving issue.
In the transfer tax proceedings in the estate of
Michael Duff the appraiser found the value of the life
estates of John J. Duff and Mary Carey, but sus-
pended taxation on the remainders because of the
powers of appointment thereover. The order entered
on the report contained no reference to the remainders,
and was not a binding adjudication as to their liability
for present or future taxation. Matter of Naylor,
189 N. Y. 556, affg. 120 App. Div. 738; Matter of
Goldenherg, 187 id. 692. The facts in Matter of
Naylor, supra, were very much like the facts here. In
the opinion of the Appellate Division, first depart-
ment, it is pointed out that the suspension of the tax
on the remainders was not a binding adjudication. In
that case also the court held that the remainders
should be taxed at their full and undiminished value,
notwithstanding that the report of the appraiser taxed
the life estates and only indicated the balance remain-
ing after the deduction of the life estates.
The executors also contend that the remainders are
in no way taxable because of the varying statutory
provisions existing at the date of the death of testator
and at the date of death of donee — John Duff. They
Digiti
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312 Matter of Dufp,
Surrogate's Court, N«w York County, January, 1921. [Vol. 114.
contend that the latter part of section 220, subdivision
5, of the Tax Law (Laws of 1897, chap. 284), provid-
ing for the taxation of the non-exercise of the power
only in the donee's estate, was in effect in 1904 when
Michael Duff died, and that this provision of the
statute was repealed by chapter 732 of the Laws of
1911, in effect July 21, 1911, prior to the death of
John Duff in 1918. They contend that the repeal
exempted the non-exercise of the power. This conten-|
tion cannot be sustained. The Court of Appeals in
Matter of Lansing, 182 N. Y. 238, 247, held that this
provision was unconstitutional. The court said where
there is no transfer ** there is no tax • • • the
act relating to taxable transfers • • • imposes no
direct tax and is unconstitutional since it * * *
impairs the obligation of contracts, and takes private
property for public use without compensation " I
hold, therefore, that this provision was at no time
valid or enforcible. That decision must be construed
as declaring not taxable the non-exercise of the power
by the donee, whether the will of a donor was executed
prior or subsequent to the enactment of that provision.
Since no transfer took place in the donee's estate the
legislature was without jurisdiction to tax the prop-
erty in his estate. The tax must therefore be paid on
the only transfer effected, which was in the donor's
estate. Hence the taxation of the estates in expectancy
was held in abeyance, and they may now be taxed
against the persons in whom they vested in possession
and enjoyment on their full, undiminished value. Tax
Law, § 230; Matter of Ooldenberg, supra.
This application may be treated as a motion to fix
tax without the appointment of an appraiser, and the
order to be entered should provide for vacating the
order heretofore made appointing the appraiser.
Decreed accordingly.
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Matter of Mbtzger. 313
Misc.] Surrogate's Court, Nefw York County, January, 1921.
Matter of Adoption of Justine B. Metzger, an Infant,
(SazTogate'8 Court, New York County, January, 1921.)
Adoption — when application by second husband of mother for
adoption of her child will not be granted against the oppo-
sition of the father — diyorce — husband and wife — Domestic
Relations Law, § 111(3).
The statute (Domestic Relations Law, § 111(3)) still provides
that the consent of a parent who has been divorced because of
his or her cruelty or adultery is unnecessary in adoption pro-
ceedings.
But where in a wife's action for a divorce she was awarded
the custody of her six-year-old daughter with provision that
the defendant should be entitled to visit her once a week, an
application by the husband of the mol^er for the adoption of
the child will not be granted against the opposition of the
father, as the effect of granting the adoption would be to
terminate, without legal reason, the natural rights of the
father.
Application for the adoption of an infant.
Ephraim Berliner, for petitioner.
Manfred Nathan, for objectant,
Foley, S. This is an application for the adoption
of an infant female of the age of six years. The peti-
tioner is the husband of the child's mother. The
mother secured a divorce from her first husband in
this state. The decree of divorce awarded the custody
of the child to the mother, but provided that the
defendant be entitled to visit his daughter once a week.
This application is opposed by the father. Previous
to 1913 in adoption proceedings notice was not
required to a parent who was divorced for his or her
cruelty or adultery. Chapter 569, Laws of 1913,
Digiti
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314 Matter of Metzgbtu
Surrogate's Court, New York County, January, 1921. [Vol. 114.
amended section 111 of the Domestic Relations Law
by providing for the giving of such notice and in such
manner to the divorced parent as directed by a judge
of a court of competent jurisdiction. The statute
(Dom. Eel. Law, § 111, subd. 3) still provides that
the consent of a parent who has been divorced because
of his or her cruelty or adultery is unnecessary. Upon
the return of notice given under the statute. has the
divorced parent the right to oppose the adoption,
although his consent is unnecessary thereto? I think
he has. Otherwise the amendment of 1913 to section
111 of the Domestic Relations Law would be without
reason or force. Section 113 of the Domestic Relations
Law provides that if the judge or surrogate be satis-
fied that the moral and temporal interests of the per-
son to be adopted will be promoted thereby he must
make an order allowing and confirming the adoption,
reciting his reasons therefor. The giving of notice to
the divorced parent at least enables him to acquaint
the court with the absence of such benefits to the child,
essential as they are, to enable the surrogate in his
discretion to grant or deny the adoption. In this in-
stance the opportunity given the divorced parent
justifies the legislative provision for notice. As stated
in Matter of Livingston, 151 App. Div. 1: ** By our
statute adoption cannot take place without the con-
sent of the parents of the minor child, unless such
parents have forfeited their natural rights to the
custody of the child under circumstances clearly
defined by the statute itself." The custody and right
of visitation of the child were fixed by the decree of
divorce. In effect the father's rights were curtailed,
not abrogated. Under section 1771 of the Code of
Civil Procedure these provisions of the decree of
divorce may later be modified in that tribunal, and the
father may ultimately be given custody of his daugh-
Digiti
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507 Madison Ave. Realty Co., Inc., v. Martin. 315
Misc.] Municipal Coxirt of New York, January, 1921.
ter. The natural rights of the parent to his child are
sacred and are jealously guarded by the law. The
powers of the state over a child are not superior to the
natural rights of the parent. The effect of granting
this adoption would be to terminate the natural rights
of the father without adequate legal reason and to
modify the decree of the Supreme Court. The parties
were examined before me at length, and I have care-
fully considered the different phases of this matter. I
am convinced that the interests of the infant will best
be served by denying this application. The applica-
tion is denied.
Application denied.
507 Madison Ave. Realty Co., Inc., Landlord, v.
Nicholas Maktin, Tenant.
(Municipal Court of the City of New York, Borough of Manhattan,
Ninth District, January, 1921.)
Lease — constrnction of — personal covenants — landlord and
tenant — cancellation clause — summary proceedings — evi-
dence.
If there is any doubt or uncertainty as to the meaning of a
lease, it will be construed in favor of the tenant. (P. 318.)
A lease not in terms providing that the conditions and
covenants thereof should bind the legal representatives, heirs
and assigns of the parties, contained the following:
" Said landlord reserves the right to terminate this lease
and the term thereof at any time after May 1, 1920, in case
of a bona fide sale of the property upon giving 90 days' notice
in writing to said tenant, addressed to said demised premises,
of his intention to so terminate the same, and this lease and
the term thereof shall cease, determine and end at the ex-
piration of 90 days from the day when such notice is given."
Held, that the covenant contained in said clause did not run
with the land but was purely personal to the landlord and he
having died without having exercised the privilege to terminate
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316 507 Madison Ave. Realty Co., Inc., v. Martin.
Municipal Court of New York, January, 1921. [Vol. 114.
the lease, it could not be exercised by any subsequent grantee
of the premises. (Pp. 317, 318.)
The present landlord in a summary proceeding against the
tenant as a holdover after service upon him of the ninety days'
notice called for by the lease, having failed to establish that
the conveyance of the premises to said landlord by the grantee
of the executors of the original landlord, was a bona fide sale
which would entitle the petitioner to any rights under the can-
cellation clause, even if it were held that the eovenant was
one running with the land, the tenant is entitled to a final order
dismissing the proceeding upon the merits. (Pp. 320, 321.)
The deposition of the agent of the landlord, who as broker
negotiated the lease with the tenant, was inadmissible in evi-
dence, the provision of the lease not being ambiguous. (Pj>.
319, 320.)
Summary proceedings.
Myers & Sherwin (David S. Myers, of counsel), for
landlord.
Arthur S. Luria (George L. Ingraham, of counsel),
for tenant.
Genung, J. This is a holdover proceeding brought
by the landlord to regain possession of premises on
the ground that the tenant is holding over after the
expiration of his lease.
The facts are not disputed. They involve the inter-
pretation of the lease under which the tenant is in
possession.
On or about Deoember 19, 1912, Simeon J. Drake
leased the premises to the tenant herein. Mr. Drake
died on October 6, 1914. His executors conveyed the
premises on or about August 11, 1915, to a corporation
known as 540 Madison Avenue Corporation. This con-
veyance contained a provision that the premises were
conveyed subject to the lease between Mr. Drake and
Mr. Martin, the tenant herein. On May 3, 1920, the
540 Madison Avenue Corporation served a notice on
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507 Madison Ave. Eealty Co., Inc., v. Martin. 317
Misc.] Munieipal Court of New York, January, 1921.
the tenant that, under paragraph 12 of the lease in
question, hereinafter quoted, the tenant was * ^ notified
that it is the intention to terminate the term of your
said lease, said termination to take effect ninety days
from the date of this notice.**
Some time after this notice was given and on or
about June 22, 1920, the 540 Madison Avenue Corpora-
tion assigned the lease to the petitioner in this pro-
ceeding.
The interesting legal question involved concerns the
said paragraph 12 of the original lease, which reads
as follows:
** 12. Said Icmdlord reserves the right to terminate
this lease and the term thereof at any time after May
1, 1920, in case of a hona fide sale of the property upon
giving 90 days* notice in writing to said tenant,
addressed to said demised premises, of his intention
to so terminate the same, and this lease and the term
thereof shall cease, determine and end at the expira^
tion of 90 days from the day when such notice is given.
And thereafter said landlord may re-enter upon and
take possession of the demised premises and every
part thereof, either by force or otherwise, without
being liable to prosecution or damages therefor, and
have and enjoy the said premises as of their former
estate, free, clear and discharged of this lease and of
all rights of the tenant hereunder. In the event of
the cancellation of this lease in the manner herein-
before provided the landlord shall pay to the tenant as
consideration for the surrender of the said premises
the sum of five thousand ($5,000) dollars.** (Italics
mine.)
It is the contention of the tenant that the privilege
of terminating the lease on 90 days' notice was per-
sonal to the original landlord, Mr. Drake, and that it
did not run with the land, and that inasmuch as Mr.
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318 507 Madison Ave. Realty Co., Inc., v. Martin.
Municipal Court of New York, January, 1921. [Vol. 114.
Drake died without having exercised the privilege, this
privilege necessarily terminated with his death and
could not be exercised by any subsequent transferee
of the property If this be so, it will follow that the
present proceeding cannot be maintained.
The lease does not contain any clause providing that
the conditions and covenants thereof shall bind the
legal representatives, heirs and/or assigns of the
parties.
The language used by the parties was clear and
unequivocal. It was neither indefinite nor ambiguous.
It presents a pure question of law, to wit, the con-
struction of the language thus employed.
It may well be observed preliminarily that in con-
struing a written lease the general rule is that it shall
be construed against the grantor and that if there be
any doubt and uncertainty as to the meaning of such
lease it shall be construed in favor of the grantee.
Smith V. Rector, 107 N. Y. 610, 619. Even irrespective
of this canon of construction it is my opinion that the
covenant contained in this clause is a purely personal
one and does not run with the land. Eeeves Real Prop.
833. Consequently the reservation of the right to
terminate being one personal to Mr. Drake, it ceased
with his death, and could not thereafter be exercised
by any subsequent transferee. I cannot find any
expressed intent in the entire instrument of lease to
give any right to terminate to the landlord's legal
representatives or assigns.
In Bruder v. Crafts <& D^ Amor a Co., 79 Misc. Rep.
88, the Appellate Term, first department, held that a
much similar clause was personal to the original land-
lord and could not be exercised by an assignee. The
court there said, speaking through Lehman, J.: ** The
original landlord was interested in preserving his
right to make a sale free from the incumbrance of any
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507 Madison Ave. Realty Co., Inc., v. Maetin. 319
Misc.] Municipal Court of New York, January, 1921.
lease and has provided in the lease that upon a sale
he shall have the right to terminate the lease. When
he sold the premises and his immediate assignee
accepted them subject to the lease the purpose of this
clause had ceased. It is true that the new landlord
might prefer to have the premises encumbered only by
a lease which he also could terminate, but in the
absence of appropriate words giving him such a right
I fail to see how we can consider that the right
reserved to the original landlord passed also to his
assignee/*
Thi^ ruling was followed in the subsequent case of
Krim Realty Corporation v. Varvori, 97 Misc. Rep.
407, where the Appellate Term, speaking through
Sheam, J., held a similar clause, worded even more
strongly in the landlord's favor, to be a privilege per-
sonal to the original landlord.
The other authorities relied upon by the landlord,
including Childs Co. v. Burke, 110 Misc. Bep. 103, are
readily distinguishable, as they all relate to covenants
manifestly running with the land, and are so worded
and provided, whereas the above-quoted covenant, in
my judgment, is merely personal.
At the trial the tenant offered in evidence the depo-
sition of the agent of the lessor, who negotiated this
lease as broker with the lessee, to which objection was
made by the landlord on the ground that it would tend
to alter, vary and contradict the terms of a written
instrument. While there are cases in which such a
deposition would be admissible to show the intention
of the parties {Thomas v. Scutt, 127 N. Y. 133; Mur-
doch V. Gould, 193 id. 369; Smith v. Finkelstein, 162
App. Div. 128), in view of the finding of the court that
the provision of the lease is not ambiguous, and clearly
indicates the intenton of the parties thereto, the depo-
sition is inadmissible under the authorities. Imperator
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320 507 Madison Ave. Realty Co., lire, v. Mabtiw.
Municipal Court of New York, January, 1921. [Vol. 114.
Realty Co. v. Tall, 228 N. Y. 447; Thomas v. Scutt,
supra; King v. Hudson River Realty Co., 210 N. Y. 467.
The provision of the lease in question refers to ** a
bona fide sale.** There is no question raised that the
sale by the executors of Simeon J. Drake, the original
lessor, to the 540 Madison Avenue Corporation, as
shown by the deed, dated August 11, 1915, was a bona
fide sale. But in the mind of the court there is a ques-
tion as to whether the sale from the 540 Madison
Avenue Corporation to the 507 Madison Avenue
Realty Co., Inc., was a bona fide sale. It appears that
on February 5, 1920, the tenant wrote a letter to the
540 Madison Avenue Corporation asking '^ as to what
are the possibilities of having cancellation clause in
our lease waived for the balance of our term.*' On,
February 7, 1920, the 540 Madison Avenue Corpora-
tion wrote to the tenant ** that there is no possibility
of our waiving the cancellation clause contained in
your lease at the present time.** On March 18, 1920,
the 540 Madison Avenue Corporation made a contract
for the sale of the property to the 507 Madison Avenue
Realty Co., Inc. On May 3, 1920, the 540 Madison
Avenue Corporation served the notice of termination
of the lease on the tenant. On May 5, 1920, the 540
Madison Avenue Corx>oration executed a deed for this
property to the 507 Madison Avenue Realty Co., Inc.
In other words, after the inquiry by the tenant as to
the possibility of waiving the cancellation clause, the
owner made a contract of sale to another corporation,
and two days after giving notice to the tenant of ter-
mination of the lease, the owner delivered the deed to
the other corporation, the petitioner in this proceed-
ing. Thereafter the 507 Madison Avenue Realty Co.,
Inc., brought this proceeding, relying on this transfer
as a bona fide sale, and claiming it would entitle it to
terminate the lease of the present tenant
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BOATB V. BOATB. 321
Misc.] Municipal Court of New York, January, 1921.
In view of these events the court is of opinion that
the landlord has failed to establish a bona fide sale
which would entitle the present landlord to any rights
under the cancellation clause even if it were held to
be a covenant running with the land. On this question
of fact the court finds in favor of the tenant.
It follows that the tenant is entitled to a final order
awarding him possession of the premises and dismiss-
ing the petition upon the merits.
Ordered accordingly.
Adriennb L. BoATEy Plaintiff, v. Gershon Boats,
Defendant.
(Municipal Court of the City of New York, Borough of Brooklyn,
Second District, January, 1921.)
Husband and wife — when payment under leparation aipreement
released by divorce.
Upon entry of the final decree in a wife's action for divorce,
the defendant's legal obligation to support her comes to an
end and he is released from the payment of any sum due under
a separation agreement which did not in terms provide as to
the length of time the weekly payments thereunder should
continue.
However, the defendant is liable for any payment falling
due prior to the entry of the final decree, and plaintiff is en-
titled to judgment for the amount thereof.
Motion for a bill of particulars in an action for
separation.
William A. Dempsey, for plaintiff.
Martin & Kesselman (David F. Price, of counsel),
for defendant.
Law, J. The case is submitted upon an agreed state
of facts. The plaintiff and defendant were husband
21
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322 BOATE V. BOATE.
Municipal Court of New York, January, 1921. [Vol. 114.
and wife. On or about July 10, 1918, they entered into
a separation agreement by which they agreed to live
separate and apart from each other during their nat-
ural lives. The defendant promised to pay the plain-
tiff the sum of ten dollars per week for her support
and maintenance in the following language of the
agreement: ** * * * that the said party of the
first part shall and will well and truly pay or cause to
be paid, for and towards the better support and
maintenance of his said wife, the sum of Ten ($10)
Dollars per week ; the first payment to be made on the
date of the signing of this agreement and weekly
thereafter, which the said party of the second part
does hereby agree to take in full satisfaction for her
support and maintenance; * * *.'' On September
30, 1920, a final judgment of divorce was entered in
the Supreme Court, Kings county, in favor of the
defendant herein against this plaintiff because of the
latter 's adultery. The action is to recover sums
claimed to have fallen due under the agreement since
the entry of the final judgment of divorce, except one
weekly payment that fell due prior thereto. The ques-
tion submitted by stipulation of the parties is whether
the entry of the final decree of divorce discharges and
releases defendant from the payment of any sum due
under the agreement.
I have not been able to find, nor have counsel cited,
any decided case directly in point. The plaintiff
relies upon the authority of the cases of Randolph v.
Field, 84 Misc. Rep. 403; Oalusha v. Galtisha, 116
N. Y. 635, and Clark v. Fosdick, 118 id. 7. But in none
of these cases had a final judgment of divorce been
granted the defendant because of the adultery of the
plaintiff. In the case of Randolph v. Field, supra, it
was held that in an action by a wife to recover pay-
ments alleged to be due under a separation agreement,
neither adultery on her part before the separation
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BoATE V. Boats. 323
Misc.] Municipal Court of New York, January, 1921.
agreement was made, though miknown to defendant^
nor her adultery thereafter, is a defense. This case
simply adopted the well-settled rule in England as
laid down in Fearon v. Earl of Aylesford, 14 Q. B. Div.
792. The rule is sound, but it rests upon reasons not
applicable to the instant case. The obligation of the
husband to support and maintain his wife and to pay
for necessaries purchased by her is not dependent
upon her good conduct, nor upon her fidelity to the
marriage vow. He is bound to support her because
of the marriage relation. In Oalusha v. Qal'oslia,
supra ^ Judge Parker said: ** Because of the marriage
relation the husband was bound to support his wife.
This legal obligation constituted the basis for a set-
tlement of their affairs, and the making of an agree-
ment by which it should be definitely determined how
much he should be obliged to contribute, and she enti-
tled to receive from him, for her support." The
separation agreement simply defines to the mutual
satisfaction of the parties the husband's legal obliga-
tion to support his wife. Hence it follows that he
would be liable under such an agreement for the pay-
ments therein provided, certainly so long as the
marriage relation continued to exist.
In the cases of Galusha v. Oalusha, supra, and Clarlc
V. Fosdick, supra, it was held that the agreement was
not invalidated by a subsequent violation of the mar-
riage vow on the part of the defendant, nor by the
granting of a decree of divorce to the plaintiff.
Again these cases are clearly distinguishable in prin-
ciple from the instant case. Where the wife has recov-
ered a final judgment of divorce against the husband,
his liability to provide for her support does not cease.
The statute empowers the court to require the wrong-
doing husband to provide for the support of the wife.
The agreement creates an express contractual obliga-
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324 BOATE V. BOATE.
Municipal Court of New York, January, 1921. [Vol. 114.
tion substituted by the act of the parties for the hus-
band's general legal obligation to support and main-
tain his wife while the marriage relation exists. The
express contractual obligation is equally a substitute
for his liability to provide for her support by order
of the court after she has recovered a judgment of
divorce against him. The agreement is a bar to the
allowance of alimony. So holding in the case of
Galusha v. GcUusha, supra, the court said: ** The argu-
ment that upon the granting of the decree of divorce
there was a failure of consideration to support the
agreement is without force." Clearly that would
be so.
But in the instant case the husband (defendant) has
recovered a final judgment of divorce against the wife,
the plaintiff herein. His legal obligation to support
her because of the marriage relation has come to an
end. The court has no power to require him to pay
alimony or in any manner to provide for her support.
Unless he is to be held under the naked terms of the
agreement, he is as free of obligation to her and of
liability to provide for her support as before the mar-
riage relation was contracted. The payments under
the agreement would no longer represent any legal or
moral obligation whatsoever. And yet it is contended
that because there was a consideration for the agree-
ment at the time it was made, the defendant must go
on making the weekly payments to the plaintiff for the
balance of her life. I cannot subscribe to that view.
That there can be a failure of consideration because
of events happening after the making of the separa-
tion agreement would seem to have support in the
Galusha case, above cited. At page 643 the court says :
** The consideration for an agreement of separation
fails, and the contract is voided when separation does
not take place ; or where, after it has taken place, the
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BOATE V. BOATE. 325
Misc.] Mnnieipal Court of New York, January, 1921.
parties are reconciled and cohabitation resumed. '* If
the consideration fails where the parties are recon-
ciled and cohabitation resumed^ it would seem clear
that the consideration would equally fail when the
defendant is released from all legal obligation and
liability resulting from the marriage relation.
But there is still another ground for holding that
the defendant is no longer liable under the terms of
the agreement. I think there was an implied condi-
tion that the defendant's obligation to make the weekly
payments should terminate with his marriage obliga-
tion to support the plaintiff and his liability to pro-
vide such support by order of the court or otherwise.
It will be observed that there is no express provision
in the separation agreement as to the length of time
the weekly payments shall continue. The agreement
does not say that the payments shall be made during
the plaintiff's natural life. The plaintiff does agree
to take the payments ** in full satisfaction for her
support and maintenance." It seems clear, then, that
it was not within the contemplation of the parties that
the defendant's obligations under the agreement
would survive a decree of absolute divorce in favor
of the defendant because of the plaintiff's adultery.
The agreement was in lieu of his legal obligation and
liability to provide *^ support and maintenance," and
was so accepted by the plaintiff. If such legal obliga-
tion and liability ceased to exist, there would no
longer be any just basis for the weekly payments
under the agreement, and it is reasonable to presume
that the parties contemplated that the operation of
the agreement would be limited accordingly. If, from
the nature of the contract, it is apparent that the par-
ties contracted on the basis of the continued existence
of the defendant's. liability to furnish support because
of the marriage, the implied condition exists, and it
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326 BOATE V. BOATE.
Municipal Court of New York, January, 1921. [Vol. 114.
is presumed that the contract was made upon sudi
condition and that the parties contemplated the con-
tinued existence of the defendant's marriage liability
for the support of the plaintiflf. Dexter v. Norton, 47
N. Y. 62-65; Stewart v. Stone, 127 id. 500. It could
hardly have been within the contemplation of the par-
ties that the defendant would go on making the weekly
payments for the plaintiff's ** support and mainte-
nance " after a decree of absolute divorce had
relieved him of the legal liability for which the agree-
ment was a mere substitute.
So far as concerns the payments falling due under
the agreement after September 30, 1920, the date of
the entry of the final decree of divorce, judgment
should be in the defendant's favor. To hold other-
wise would shock the common sense of justice. How-
ever, I think the defendant would be liable for any
payments falling due prior to the entry of the final
decree. In her bill of particulars the plaintiff alleges
that the defendant ** has failed to pay plaintiff the
said sum of Ten ($10) Dollars per week from the 25th
day of September, 1920 to date." The stipulation of
the parties does not in express terms admit the alle-
gations in the plaintiff's bill of particulars, but it is
obvious that such was the intention. It appears,
therefore, that a weekly payment came due September
25, 1920. The plaintiff is, therefore, entitled to judg-
ment for ten dollars.
Judgment for plaintiff.
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Guaranty Trust Co. v. Meeb. 32/
Mise.] Supreme Court, February, 1921.
0UARAKTY Trust Company op New York, Plaintiff v.
Joseph Meer, Defendant.
(Supreme Court, New York Special Term, February, 1921.)
Pleading — when demurrer to complaint sustained — contracts —
negotiable instruments — damages — foreign exchange — Per-f
wmal Property Law, §§ 146, 146(8), 166.
A complaint alleged a written contract under which plain-
tiff agreed to sell and deliver to defendant at the city of New
York 600,000 French francs, check on Paris, France, at the
rate of 8.33 francs per dollar. Within a few days after de-
fendant had notified plaintiff that he repudiated the contract,
plaintiff sold the francs in the city of New York at the then
current market rate of 16.56 francs per dollar, and as a result
of the credit to defendant of the amount realized on such sale,
defendant still remained indebted to plaintiff in a certain sum
for which judgment was demanded. Keld, that the measure
of damages, in the absence of an allegation of " special cir-
cumstances showing proximate damage of a greater amount,''
was under section 145(3) of the Personal Property Law the
difference between the contract price and the market price at
the time when the money ought to have been accepted.
It appearing that had plaintiff held the money until the date
fixed for its delivery, the loss sustained would have been several
thousand dollars less than established by the sale, a demurrer
to the complaint on the ground that plaintiff in his demand
for judgment had adopted the wrong measure of damages, will
be sustained.
Motion to overrule demurrer.
Frank M. Patterson, for plaintiff.
Jerome, Band & Kressel, for defendant.
Donnelly, J. This is a motion to overrule the
demurrer interposed by the defendant to the complaint
herein on the ground that it does not state facts suffi-
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328 Guaranty Tbust Co. v. Meer.
Supreme Court, February, 1921. [Vol.114.
cient to constitute a cause of action. The complaint
in substance alleges that heretofore, and on or about
the 9th day of October, 1919, the plaintiff and the
defendant entered into an agreement.in writing where-
in and whereby it was mutually agreed between them
that the plaintiff should sell and deliver to the defend-
ant at the city of New York, at any time during July,
1920, at the defendant's option, 500,000 French francs,
check on Paris, France, at the rate of 8.33 francs per
dollar, for the total sum of $60,024, and that the
defendant should accept the same from the plaintiff,
and pay therefor said sum of $60,024. That on or
about the 23d day of April, 1920, the defendant notified
the plaintiff that he repudiated said contract and
would not accept said 500,000 francs, or pay therefor,
or carry out the terms of said agreement on his part.
That the plaintiff was ready and willing to perform
said agreement on its part, and would have delivered
to defendant the said 500,000 francs, according to the
terms of said contract but for the defendant's said
repudiation. That on or about the 29th day of April,
1920, and subsequent to said repudiation the plaintiff
sold said 500,000 French francs, the amount of said
check on Paris, in the city of New York, at the then
current market rate of 16.56 francs per dollar, realiz-
ing as a result of the sale $30,193.33, and that as a
result of the credit of this item to the defendant, the
defendant still remained indebted to the plaintiff in
the sum of $29,830.77, for which the plaintiff
demanded judgment in that amount. The defendant
served a demurrer, reciting as its ground that the
complaint does not state facts sufficient to constitute
a cause of action. Plaintiff, upon receipt of such
demurrer, moved to overrule the same and for jud<r-
ment on the pleadings. The points made by the defend-
ant in support of the demurrer are: (a) That the
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Guaranty Trust Co. v. Meer. 329
Misc.] Supreme Court, February, 1921.
alleged contract comes within the purview and under
the provisions of the Personal Property Law of the
state of New York, and (b) that the plaintiff has
adopted the wrong measure of damages and no facts
from which the proper measure of damages can be
ascertained are alleged. It has been decided in at
least two recent cases that section 85 of the Personal
Property Law (Statute of Frauds) applies to the
sale of foreign exchange. Equitable Trust Co. v.
Keene, 111 Misc. Rep. 544; Reisfeld v. Jacobs, 107 id.
1. In the case of Equitable Trust Co. v. Keene, supra,
the court draws the distinction between a ** com-
modity ^^ and a ** chose in action," and holds that if
the agreement be regarded as one to sell ** English
pounds '^ it is covered by the rule that foreign money
when dealt in in this country is to be regarded as a
commodity ; if, on the other hand, it is a contract by
the plaintiff to make available to the defendant *'a
credit of the amount specified at the point specified,*'
then it is an agreement to sell a chose in action, and in
either case comes within the provisions of section 85
of the Personal Property Law. While it is true that
the Statute of Frauds is not available on demurrer
against this complaint — the allegation being that the
contract is in writing — yet these decisions are illumi-
nating in showing the trend towards treating these
contracts as dealings in commodities or choses in
action. The plaintiff contends that the contract in
question under the case of Equitable Trust Co. v.
Keene constitutes a sale of a chose in action, and that
by section 156 of the Personal Property Law a chose
in action is expressly excluded from the purview and
application of section 145 of the Personal Property
Law, which is the only section of that law germane to
the ground of ** improper measure of damages *'
raised by the demurrer. For the purposes of this
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330 Guaranty Tbust Co. v. Mebk.
Supreme Court, January, 1921. [Vol.114.
motion I am willing to agree with the contention of
the plaintiff to the extent of holding that the contract
in question is one for the sale of a chose in action,
and that section 145 of the Personal Property Law,
as modified by section 156 of that act, does not apply
to this sale. The plaintiff, however, insists that
neither the rule of damages as contained in the
Personal Property Law, nor as stated at common law,
and which is supposed to be codified by section 145 of
the Personal Property Law, applies to this particular
transaction ; that the instant case is one of first impres-
sion, and that the court should evolve a new measure
of damages to meet the exigencies of this class of
cases, and that the new measure of damages should
be predicated upon the idea that foreign exchange is
perishable in nature, and that therefore a vendor of
foreign exchange in case of an anticipatory breach by
the vendee is under a duty at the time of the breach to
sell the foreign exchange at once in order to mitigate
the loss of the vendee. The plaintiff further suggests
that this new rule of damages should be based on
logic and reason. I see no necessity for a new measure
of damages to compute the loss arising out of an
anticipatory breach of the sale of foreign exchange.
The sale of foreign exchange runs into millions every
year in this city, the same as the sale of other objects
of sale, and there is no reason that I know of why it
should have exclusive safeguards. The claim that
foreign exchange is perishable is not borne out by the
business generally, nor the instant case in particular.
Perishable goods in the very nature of things con-
tinue to decline in value as time advances, and are in
imminent danger of being rendered valueless. Foreign
exchange may enhance in value in the future as well
as decline, and in the transaction alleged in this com-
plaint had the plaintiff held the francs until the date
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GuAKANTY Tbust Co. V. Mebb. 331
Misc.] Supreme Court, January, 192L
of the delivery, July 31, 1920, the loss sustained by
the defendant would have been $9,000 less than was
established by the sale on April 29, 1920, the date of
the breach. In my opinion, whether the contract is
treated as one for the sale of a commodity or one for
the sale of a chose in action, the measure of damages
for an anticipatory breach would be the same. If
treated as a commodity, section 145 of the Personal
Property Law would apply, and the provisions of this
section are merely declaratory of the common law,
and if treated as a chose in action, the rules of damage
as stated at common law would obtain. Section 145
of the Personal Property Law provides as follows:
** Action for damages for nonacceptance of the goods.
3. Where there is an available market for the goods in
question, the measure of damages is, in the absence of
special circumstances, showing proximate damage of a
greater amount, the difference between the contract
price and the market or current price at the time or
times when the goods ought to have been accepted, or,
if no time was fixed for acceptance, then at the time
of the refusal to accept." There is no claim alleged
or advanced by the plaintiff of * * special circumstances
showing proximate damage of a greater amount. '^
The common-law rule in the case of an anticipatory
breach of a contract of sale of goods including the
ordinary measure of damages is stated in Windmuller
V. Pope, 107 N. Y. 674, as follows: '' The defendants
having on the 12th of June, 1880, notified the plaintiffs
that they would not receive the iron rails, or pay for
them, and having informed them on the next day that
if they brought the iron to New York they would do so
at their own peril, and advised them that they had
better stop at once attempting to carry out the contract,
so as to make the loss as small as possible, the plain-
tiffs were justified in treating the contract as broken
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332 Q-UARANTY Trust Co. v, Meer.
Supreme Court, January, 1921. [Vol. 114.
by the defendant at that time, and were entitled to
bring the action immediately for the breach, without
tendering the delivery of the iron, or awaiting the
expiration of the period of performance fixed by the
contract; nor could the defendants retract tlieir
renunciation of the contract after the plaintiffs had
acted upon it and, by a sale of the iron to the other
parties, changed their position (cases cited)." The
ordinary rule of damages in an action by a vendor of
goods and chattels for a refusal by the vendee to
accept and pay for them is the difference between the
contract price and the market value of the property
at the time and place of delivery. The plaintiff may
claim, however, on account of the fluctuation of the
market in foreign exchange that it was the duty of
the plaintiff to sell these French francs at the time of
the breach in order to mitigate the loss. This situa-
tion is disposed of by the case of Saxe v. Penokee Lum-
ber Co., 159 N. Y. 371, where the court at page 378 said:
** * There is another pertinent rule of damages, that the
party who suffers from a breach of contract must so
act as to make his damages as small as he reasonably
can.' A just rule, indeed, and applied wherever- need-
ful, but one wholly without practical application to a
case where the subject matter of the contract has a
market value at the time and place of delivery. '* The
motion to overrule the demurrer is denied, and the
demurrer is sustained on the ground that the plain-
tiff has adopted the wrong measure of damages in
demanding judgment.
Ordered accordingly.
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Hennenlotter v. De Okvaxanos. 333
Misc.] Supreme Court, February, 1921.
Theodore B. Hennenlotter, Plaintiff, v. Dolores
QuiNTANiLLA De Orvananos, Defendant.
(Supreme Court, Kings Trial Term, February, 1921.)
Negotiable instnimeiita — check drawn in Mexico and payable in
New York on condition considered to be a Mexican transaction
— when defendant entitled to judgment.
A check written in the Spanish language and payable in
dollars in New York city, was made by defendant, a firm of
bankers in Mexico, and there delivered to the payee upon the
condition in writing that if a draft given to defendant by the
payee at the time, was not paid, the check was to be void and
of no value. The draft was not paid, and payment of the
check was stopped. In an action on the check, which came
to plaintiff's assignor by indorsements made in Mexico, defend-
ant pleaded a breach of the condition upon which the check
was given, and all the facts showed that the case presented a
Mexican transaction as to all parties except the drawee of the
check. Held, that New York law does not apply and defendant
is entitled to judgment.
AcnoN on two instruments for the payment of
money.
Bonynge & Bonynge (Paul Bonynge, of counsel),
for plaintiff.
Stewart & Shearer (MoCready Sykes, of counsel),
for defendant.
Lazansky, J. Action on two instruments for the
payment of money similar in form to and conceded
to be checks such as are commonly used in this state.
The checks were executed and delivered in Mexico ** to
the order of " a person named, payable in dollars in
New York city by a firm conceded to be bankers and
were written in the language used in Mexico. They
came to plaintiff's assignor by indorsements made in
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334 HenneniiOtter v. Db Orvananos.
Supreme Court, February, 1921. [Vol.114.
Mexico. These indorsements were in the form used
in this state in the usual course of negotiation. The
checks, with others, were delivered to the payee upon
the condition in writing that if two drafts given to
the defendant at the same time by the payee were not
paid then the checks were to be void and of no value.
The drafts were not paid and defendant stopped pay-
ment of the checks in suit. As a defense, defendant
pleads breach of. the condition. If the laws of this
state be applicable to the obligation of the drawer of
the checks, the defense is not good, because plaintiff's
assignor is a holder for value in due course. If, how-
ever, the laws of Mexico apply, then the defense is
valid. According to the testimony, in Mexico these
checks are not negotiable and would be subject to the
defense. There a check may be payable to an in-
dividual and is not negotiable. A check payable to
the order of a person or a person or order is unknown
to Mexican law. A check may be payable to bearer
and is negotiable by delivery. If the checks wore
deemed bills of exchange or drafts as known here,
they would not be negotiable in Mexico, because, as
testified, they do not contain certain items essential
to such instruments under the law, and, therefore,
would be merely choses in action or ** credits '' and
subject to the defense. Do the laws of New York or
Mexico apply? The obligation of the drawer of a bill
of exchange is determined by the law of the place
where he delivered it. Amsinck v. Rogers^ 189 N. Y.
252. It might be interesting to consider the proposi-
tion that a check is practically the same as a bill of
exchange (which has been the subject of discussion
by the courts and text book writers) and, therefore,
the rule stated should be applied here. But that need
not be discussed in light of the conclusion reached.
While it was not necessarv to the decision in that case.
Digiti
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Hennenlottbr v. Db Orvananos. 335
Misc.] Supreme Court, February, 1921.
the court in Amsinck v. Rogers, supra, states as a rule
laid down in Hibernia National Bank v. La^ombe, 84
N. Y. 367, that the obligation of the drawer of a check
is determined by the law of the place where it is
payable. In thus stating this rule the court in the
Amsinck case was but differentiating the case of a
bill of exchange from that of a check. However, it
is so stated that it would seem to be a confirmation
of what the court says the Hibernia National Bank
case does hold. Under these circumstances, despite
the general rules laid down in Union National Bank
V. Chapman, 169 N. Y. 538, it would be necessary
to hold in this case that the law of New York is
applicable, were it not that the court in the Amsinck
case seems to have overlooked the effect in this respect
of section 321 of the Negotiable Instruments Law
which provides: ** Check defined — A check is a bill
of exchange drawn on a bank payable on demand."
See Casper v. Kuhne, 79 Misc. Eep. 411. This section
was discussed in the Amsinck case on a question of
whether the instrument under consideration was a
check or a bill of exchange. But as to whether it
changed the law as the court in the Amsinck case says
it was held in the Hibernia National Bank case was not
the subject of consideration. The Negotiable Instru-
ments Law was not in existence at the time of the
decision in the Hibernia National Bank case. Uni-
formity of rules was one of the reasons for the adop-
tion of this legislation. To apply the rule of the
Amsinck case to a check makes for uniformity and
ends a seeming difference which existed with but
little, if any, impressive reason. It will, therefore,
be held that the Mexican law is applicable. Because
the checks were drawn on a form common to our
state and unknown to Mexican law and because 100
of them came to the hands of plaintiff's assignor by
Digiti
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336 Hennenlotter v, De Orvananos.
Supreme Court, February, 1921. [Vol. 114.
negotiation in form usual in New York, it is argued
defendant is estopped to deny that New York law is
applicable. But plaintiflf's assignor was not led to
believe by any acts of defendant that she would not
assert a defense to the cheeks, if one she had, as she
would have the right under the Mexican law. Even
if she knew the checks had been negotiated as checks
are here negotiated, of which there is no proof, she
never indicated that she would not assert her rights
under the Mexican law. There is no proof that she
knew the significance of the form of the checks. There
is no estoppel to be invoked against defendant. It is
also insisted that the form of the check and the manner
of the negotiation of other of defendant's checks,
which reached plaintiff's assignor, indicated an inten-
tion of defendant to have the New York law apply. In
the first place there is no proof that she knew of the
significance of the form of the check and there is no
proof that she knew how others issued by her had been
negotiated. Defendant knew the checks in the case
were payable in New York. But in light of the condi-
tion on which they were issued to the payee, how can
it be said she intended the laws of New York to apply?
Such an intention would have made the conditional
agreement an idle transaction. Besides the facts in
the case show it was a Mexican transaction as to all
parties except the drawee. There will be judgment
for defendant.
Judgment for defendant.
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Matter of O'Connor v. Pub. Serv. Comm. 337
Misc.] Supreme Coart| February, 1921.
Matter of the Application of James K. O'Connor,
Individually and as Mayor of the City of Utica,
and the City of Utica, for a Writ of Prohihition,
Relators, v. The Public Service Commission of the
State of New York for the Second District, and
New York State Railways, Defendants.
(Supreme Court, Schoharie Special Term, February, 1921.)
Writ of prohibition — city of Utica — street railways — increase
of fare — public senrice commission — franchises —when motion
for alternative writ of prohibition deniod.
The New York State Railways, a domestic corporation
operating street surface railroads, among other places, in the
city of Utica, having instituted a proceeding before the public
service commission for permission to increase its rate of fare,
the city, as a basis of demand for an alternative writ of pro-
hibition commanding said corporation and the public service
commission to desist from further proceedings in the matter,
set up as a bar to the jurisdiction of the public service com-
mission, sixteen franchises granted by the city between May
6, 1886, and January 18, 1907, to said corporation, or its
predecessors in interest, all of which franchises were without
limitation except that the railway corporation would obey the
Railroad Law, including any changes in the rate of {are made
by the legislature or its delegated agent, the public service
commission. Held, that the motion for the alternative writ
of prohibition must be denied.
Application for an alternative writ of prohibition
directed to the public service commission of the state
of New York for the second district, and the New
York State Railways, commanding them and each of
them to desist and refrain from any further proceed-
ings in the matter of the application of the New York
State Railways, now pending before the said public
22
Digiti
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338 Matter of O'Connor v. Pub. Serv. Comm.
Supreme Court, February, 1921. [Vol. 114.
service commission, for permission to increase its rate
of fare to ten cents in the city of Utica.
Fred F. Scanlan, corporation counsel, for relator.
Kernan & Kernan (Warnick J. Kernan, of counsel),
for defendant New York State Railways.
No appearance for public service conmiission.
Nichols, J. The New York State Railways is a
domestic corporation operating street surface rail-
roads, among other places, in the city of Utica, N. Y.
Between May 6, 1886 and January 18, 1907, there was
granted to it or to its predecessors in interest by the
city of Utica, sixteen franchises which are now set up
as a bar to the jurisdiction of the public service com-
mission in the proceeding which has been instituted
by the New York State Railways for an increased rate
of fare and are made the basis of the demand of said
city for an alternative writ of prohibition directed to
the public service commission of the second district
and the New York State Railways, commanding them
and each of them to desist and refrain from any
further proceedings in the matter of the application
of the said New York State Railways for permission
to increase its rate of fare.
Six of the aforesaid franchises contain a statement
incorporated therein either to the effect that the
application is granted and franchise given, ** upon the
express condition that the provisions pertinent thereto
of the Act of the Legislature of the State of New York,
passed May 6th, 1884 entitled 'An Act to provide for
the construction, extension, maintenance and opera-
tion of street surface railroads and branches thereof in
cities, towns and villages,^ and all acts amendatory
thereof or supplemental thereto be in all things com-
Digiti
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Matter of O'Connor v. Pub. Serv. Comm. 339
Miso.] Supreme Courts February, 1921.
plied with *' or that the consent *' is given pursuant to
the provisions of chapter 252 of the Laws of 1884
• * • and the acts amendatory thereof * * */'
Hereinafter in this opinion, these six franchises will be
referred to as ** B '' franchises, the term ** B " being
used for convenience of reference to said franchises
and for another reason which will appear later in this
opinion.
Ten of the said sixteen franchises mentioned con-
tain a statement that the said consent is given on the
following express conditions, to wit: ** That the pro-
visions of article IV of the Railroad Law pertinent
thereto shall be complied with,*' which said ten fran-
chises will be hereinafter referred to as " C *' fran-
chises for convenience of reference thereto and for
another reason which will hereinafter appear.
Chapter 252 of the Laws of 1884, which was an act
to provide for the construction, extension, mainte-
nance and operation of street surface railroads and
branches thereof in cities, towns and villages, pro-
vided in section 13 thereof that ** No company or
corporation incorporated under, or constructing and
Operating a railroad * • * shall charge any
passenger more than five cents for one continuous
ride * * *'^ and section 4 of said act provided
'' The consent of the local authorities shall in all cases
be applied for in writing, and when granted shall be
upon the express condition that the provisions of this
act pertinent thereto shall be complied with, and shall
be filed in the office of the county clerk of the county
in which said railroad is located." Section 19 of said
act provides, ** The legislature may at any time alter,
amend or repeal this act."
Chapter 65 of the Laws of 1886 (which went into
effect March 22, 1886, before any of the franchises
herein were granted) amended chapter 252 of the
Digiti
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340 Matter of O'Connor v. Pub. Serv. Comm.
Supreme Court, February, 1921. [Vol. 114.
Laws of 1884 by the inclusion of a provision to the
effect that: ** The Legislature expressly reserves the
right to regulate and reduce the rate of fare on such
railroad or railway ;'' and afterwards, the General
Railroad Law (Laws of 1890, chapter 565), by section
101 provided: ** The legislature expressly reserves the
right to regulate and reduce the rate of fare on any
railroad constructed and operated wholly or in part
under such chapter (chapter 252, Laws of 1884) or
under the provisions of this article."
Section 5, subdivision 3 of the Public Service Com-
missions Law provides: "3. All jurisdiction, super-
vision, powers and duties under this chapter hot
specifically granted to the public service commission
of the first district shall be vested in, and be exercised
by, the public service commission of the second
district, including the regulation and control of all
transportation of persons or property, and the in-
strumentalities connected with such transportation,
on any railroad other than a street railroad from a
point within either district to a point within the other
district.''
Section 181 of the Railroad Law (Cons. Laws, chap.
49), so far as material here, is as follows: ** No cor-
poration constructing and operating a railroad under
the provisions of this article, or of chapter two hun-
dred and fifty-two of the laws of eighteen hundred
and eighty-four, shall charge any passenger more than
five cents for one continuous ride from any point on
its road, or on any road, line or branch operated by
it, or under its control, to any other point thereof, or
any connecting branch thereof, within the limits of
any incorporated city or village. • • * The legis-
lature expressly reserves the right to regulate and
reduce the rate of fare on any railroad constructed
and operated wholly or in part under such chapter
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Matter of O'Connor v. Pub. Sbrv. Comm. 341
Misc.] Supreme Courts February, 1921.
or under the provisions of this article ; and the public
service commission shall possess the same power, to
be exercised as prescribed in the public service com-
missions law."
Subdivision 1 of section 49 of the Public Service
Commissions Law is in part as follows :
'* ^ 49. Bates and service to be fixed by the com-
mission. 1. Whenever either commission shall be of
the opinion, after a hearing had upon its own motion
or upon a complaint, that the rates, fares or charges
demanded, exacted, charged or collected by any com-
mon carrier, railroad corporation or street railroad
corporation subject to its jurisdiction for the trans-
portiation of persons or property within the state, or
that the regulations or practices of such common
carrier, railroad corporation or street railroad
corporation affecting such rates are unjust, unreason-
able, unjustly discriminatory or unduly preferential,
or in any wise in violation of any provision of law,
or that the maximum rates, fares or charges, charge-
able by any such common carrier, railroad or street
railroad corporation are insufficient to yield reason-
able compensation for the service rendered, and are
unjust and unreasonable, the commission shall with
due regard among other things to a reasonable average
return upon the value of the property actually used
in the public service and to the necessity of making
reservation out of income for surplus and con-
tingencies, determine the just and reasonable rates,
fares and charges to be thereafter observed and in
force as the maximum to be charged for the service
to be performed, notwithstanding that a higher rate,
fare or charge has been heretofore authorized by
statute, and shall fix the same by order to be served
lipon all common carriers, railroad corporations, or
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342 Mattbb of O'Connor v. Pub. Sbrv. Comm.
Supreme Court, February, 1921. [Vol. 114.
street railroad corporations by whom such rates, fares
and charges are thereafter to be observed."
In Matter of International Railway Company v.
Public Service Commission, 226 N. Y. 479, the court
says: ** The power to regulate rates is the power to
increase them if inadequate just as truly as it is the
power to reduce them if excessive." The court say-
ing, at page 478: " This is a case where the local
authorities, in imposing a condition, have consented
that the legislature may change it, and have thus
renounced the right of forfeiture or revocation that
might otherwise be theirs. * Nothing in this contract
contained shall be construed to prevent the legislature
from regulating the fares of said companies, or either
of them.^ In the light of this provision, amendment by
legislation must be held to have been as much within
the contemplation of the parties as amendment by
agreement," and again at page 479: ** The situation
then, is this: Municipality and railroad have joined
in the declaration that the rate fixed by their agree-
ment shall be, not final, but provisional. It is to be
subject, in case of need, to re-examination and readjust-
ment by the agents of the state. The need that was
foreseen as possible, has arisen. In upholding the
jurisdiction of the conunission to deal with it, we do
not override the conditions of the franchise. We heed
and enforce thenL There are times when the police
power modifies a contract in spite of the intention of
those who have contracted. Here its action is in aid
of their intention. The covenant which limits rates
is a condition of the consent, but only in equal measure
with the covenant preserving and defining the power
of amendment. So far as the power of the conunis-
sion is concerned, the result is the same as if no condi-
tion had been imposed at all."
All of the *^ B " franchises were granted between
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Matter of O'Connor v. Pub. Sbbv. Coii«
Misc.] . Supreme Court, February, 1921.
May 6, 1886, and October 11, 1889; while tl
franchises were all granted between the 4tl]
October, 1895, and January 18, 1907. So tha
franchises **B'' and ** C " were granted
January 1, 1875, and July 1, 1907.
In People ex rel. Garrison v. Nixon, 229 N.
586, Crane J., in a dissenting opinion, says: **
think this right of the public service commi
regulate fares rests upon that clause of the f r
making the Railroad Law (Consol. Laws, C. 4J
thereof. The franchises are granted upon c
that the railroad shall comply with the provi
the Bailroad Law which includes section If
referred to. The franchises in the Qmnhy c
contain a similar provision. They were con
upon compliance with article 4, chapter 39 of
eral Laws of the state of New York of 1892. '
contained section 101 which later became sec
of the Bailroad Law. As above stated, sec
reserved the right in the legislature to regula
In deciding the Quinhy case we did not cons:
of sufficient importance to control our decisi<
The franchises in Matter of Quinhy v. Pith
ice Commission, 223 N. Y. 244, and in Mattel
of Niagara Falls, 229 id. 333, besides the pi
required by chapter 252 of the Laws of 1
section 101 of the Bailroad Law, contained a
provision limiting the rate of fare to be chc
the sum of five cents.
In People ex rel. Garrison v. Nixon, supra, t
of Appeals in a per curiam opinion, amoi
things say: ** We think that the following c]
franchises fall outside the scope of our dec:
Matter of Application of the City of Niagara
Public Service Commission of the State of N
for the Second District and the International
Supreme Court, February, 1921. [Vol. 114.
Company (decided herewith), 229 N. T. 333; Matter
of Qiunhy v. Public Service Commission, 223 N. Y. 244.
• • • 4. The following franchises granted between
January 1, 1875 andJuly 1,1907: (a) * • •. (b) The
franchise granted in and by the consent of the com-
mon council of the city of Brooklyn to the Prospect
Park and Coney Island Railroad dated December 21,
1885, consenting to the construction of a line on Park
avenue and other streets in Brooklyn, (c) The
franchise granted in and by the consent of the com-
mon council of the city of Brooklyn to the Nassau
Electric Railroad Company, dated June 19, 1893,
covering a number of lines as therein stated.^'
In the exception (b) above quoted, the franchise
contains the following condition: *^ Provided that this
consent is granted upon the express condition that
the provisions of chapter 252 of the Laws of 1884, of
the State of New York, entitled *An Act to provide
for the construction, extension, maintenance and
operation of street surface railroads and branches
thereof in cities, towns and villages,' pertinent thereto,
shall be complied with ; and shall be filed in the office
of the county clerk of the county of Kings ; provided,
also, that this consent is given to said The Prospect
Park and Coney Island Railroad Company subject
to all the obligations, liabilities and payments and all
the rights, Drivileges and franchises provided for by
the aforesaid act.''
The language of the franchise of the exception
** (b) " being substantially identical with the language
of the franchises ** B " and in the exception ** (c) "
above quoted, the language of the franchise is as
follows: ** This consent is granted upon the express
condition that the provisions of Article IV, of Chapter
565, of the Laws of 1890, and the Acts amendatory
thereof, shall be complied with. This consent is
Bebman, Inc., v. Am. Fruit Distributing Co. 345
Misc.] Supreme Court, February, 1921.
granted subject to all the obligations and liabilities
and all the rights, privileges and franchises provided
for by the aforesaid Act," being substantially the
same provision as contained in the ** C '' franchises
except that the words ** and the Acts amendatory
thereof " having been added to the exception (c).
While the Court of Appeals in People ex rel. Oar-
rison v. Nixon, supra, only excepted three express fran-
chises named therein, granted between January 1,
1875, and July 1, 1907, by a parity of reasoning it
must follow that franchises like the *' B '' and '' C "
franchises hereinbefore mentioned and which contain
no limitations except that the said railway corporation
would obey the Bailroad Law, including any changes
in the rate of fare made by the legislature or its dele-
gated agent, the public service commission, also fall
within the exceptions '' (b) " and '' (c) '* mentioned
in People ex rel. Garrison v. Nixon, supra.
The motion for an alternative writ of prohibition
must be denied, with ten dollars costs.
Motion denied, with ten dollars costs.
B. Bebman, Inc., Plaintiff, v. American Fbuit Dis-
TBiBUTiNG Company of Califobnia, Defendant.
(Supreme Court, Erie Special Term, February, 1921.)
Process — service by pnbUcation — where papers must be mailed
— when motion to vacate judgment granted — Oode Oiv. Pro.
§ 440.
Motions and orders — when defendant's motion for order of resti-
tntion denied — attachment — foreign corporations.
Serrice of an order of publication, together with the sum-
mons and complaint, by depositing the papers, contained in a
securely closed postpaid wrapper, in a letter-box other than
in the post-office, is not good.
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346 Bbrman, Inc., v. Am. Fruit Distributing Co.
Supreme Court, February, 1921. [Vol. 114.
Where an order for the service of the summons directed that
a copy of the summons and complaint and order of publication,
contained in a securely dosed postpaid wrapper, be deposited
in the post-office as required by section 440 of the Code of
Civil Procedure, but upon application for judgment the only
proof of mailing was an affidavit stating that the papers were
deposited in a depositary maintained by the United States
government in a privately owned building, the defect is juris-
dictional and not merely an irr^ularity, and defendant's
motion to vacate the judgment will be granted.
Defendant, a foreign corporation, which did not appear in
the action, has no property within this state and is not doing
business therein, delayed making the motion to vacate the judg-
ment for nearly a year. Held, that as in the event of granting
defendant's motion for an order of restitution of its property
taken by virtue of a warrant of attachment, plaintiff's only
relief would be to institute proceedings in the state of defend-
ant's residence, the motion will be denied.
Motion by defendant to set aside judgment and for
order directing restitution of property taken on
warrant of attachment.
Lawrence & Lathrop, for motion.
Walter C. Newcomb, opposed.
Brown, J. The order for service of the summons
directed that ** the plaintiff shall deposit in the post-
office at the City of Buffalo, County of Erie and State
of New York a copy of the summons and complaint
and of this order, contained in a securely closed post-
paid wrapper, directed to the defendant,'' etc. The
only proof of such required mailing presented upon
application for judgment was by affidavit stating:
'' That on the 23rd day of July, 1919, deponent
deposited in a depositary maintained by the United
States Government in the D. S. Morgan Bldg. in the
City of Buffalo, New York, a copy of a summons, com-
plaint, affidavits and order for publication, copies of
Berman, Inc., v. Am. Fruit Distributing (
Mise.] Supreme Court, February, 1921.
which are hereto annexed, contained in a seen
duly prepaid wrapper directed to the def enda
Section 440 of the Code of Civil Procedure ]
that the order of publication '^ must also
* • * a direction that, on or before the di
first publication, the plaintiff deposit in a pc
branch post-office or post-office station, one -
sets of copies of the summons, complaint an
each contained in a securely closed post-paid \
directed to the defendant,*' etc.
In Kom V. Lipman, 201 N. Y. 404, it was h
the mailing of a summons, complaint and or<
post-office box regularly maintained by the
ment of the United States and under the cai
post-office authorities at the borough of Ma
city of New York, which post-office box was
chute which extended from one of the uppei
of the Home Life Insurance Building at
Broadway, in the borough of Manhattan, city
York, to a United States post-office box loc
the ground-floor corridor of said building, wj
mailing of the summons, complaint and orde
post-office. To the same effect is the holding i
Ulrichs, 136 App. Div. 809, and Von Der I
Ditmars, 174 id. 390.
It is urged by the defendant that the provi
the statute authorizing the order of public;
direct a mailing at **a post-office, branch post-
post-office station '* permits of a mailing at th(
ing post-office letter box maintained by the
ment in the D. S. Morgan Building; that sue
receiving box is a post-office station. Such
undoubtedly does authorize such mailing at an
several post-office substations maintained in
of Buffalo, but to say that a letter box in tl
Morgan Building is a post-office station overL
348 Bbrman, Inc., v. Am. Fruit Distributing Co.
Supreme Court, February, 1921. [Vol. 114.
patent fact that the legislature, by sections 797 and
802 of the Code of Civil Procedure, have specifically
provided that the privilege of ser\ ing some kinds of
papers by mailing the same in the post-office or in any
post-offico box regularly maintained by the govern-
ment of the United States and under tiie care of its
post-office shall not apply to the service of a summons
or other process. In Schwartz v. Schwartz, 113 Misc.
Rep. 444, the summons was mailed in a mail box at
280 Broadway ; the learned justice saying : * ' Judicial
notice cannot be taken that this mail box was one
authorized or maintained under the provisions of the
postal laws. The case may be re-opened and the neces-
sary proof, if it exists, supplied." The necessarj'
proofs referred to must have been proof that the mail
box at 280 Broadway was a post-office, branch post-
office or post-office station, for it is only at such places
that a summons, etc., can be mailed under section 440
of the Code of Civil Procedure. The mere fact that
the box was a mail box authorized or maintained under
the provisions of the postal laws does not make it a
post-office, branch post-office or post-office station.
It may be that the meaningless statement in the
alleged proof of mailing, viz., ** contained in a securely
and duly prepaid wrapper '' should be treated as an
irregularity and an opportunity be given to prove that
the summons, etc., was contained in a securely closed
post-paid wrapper ; but it is clearly apparent that the
failure to prove that the papers were mailed at a post-
office, branch post-office or post-office station is juris-
dictional and not a mere irregularity.
The defendant's motion to vacate and set aside the
judgment must be granted. The proved fact that the
defendant is indebted unto the plaintiflF in a sub-
stantial sum not being denied, defendant not appear-
ing in the action, having no property within the state,
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International Railway Co. c. Pickars]
Misc.] Supreme Court, February, 1921.
not doing business within the state, having
making this motion for nearly one year, pi
only remedy for relief in the event of an oi
restitution being to institute proceedings i
fornia, such order will not be made.
Ordered accordingly.
International Railway Company, Plaintiff, v
PiGEARSKi and Ella C. Heinz, Defenda
(Supreme Court, Erie Equity Term, February, Ifl
Jndfments — Joint tort feasors — when pa3rment of jad
attorney not a satisfaction — assignments — eviden
It is only when one of several joint tort feasor
debtors pays the judgment that it is satisfied as to a
The mere fact that the attorney for one of the
debtors, without the knowledge of his client, pays tl
of the judgment to the judgment creditor and takes
ment thereof to a third person, is no proof that the
was to satisfy the judgment. Nor is the fact that t
ment was made for the purpose of collecting the judgi
the other joint judgment debtor proof that the pa^
made in satisfaction of the judgment.
A stranger may purchase a judgment without not:
party to it and thus acquire all the rights of the
creditor.
The authority of the attorney of an unsuccessful
ceases with the entry of judgment against him.
While the property of one of two joint tort feasor
debtors was under a levy made under an execution
the judgment, one who had been his attorney in t
without the knowledge of either of the judgment debt<
tarily paid the judgment from his own money, took
ment of the judgment to his stenographer, and after
tion had been withdrawn and the levy released, he iss
execution on the judgment against the property of
judgment debtor. Held, that such payment was nc
faction of the judgment.
350 Intebnational Railway Co. v, Pickarski.
Supreme Court, February, 1921. [Vol. 114.
In the absence of proof that the attorney acted for his
former client or even sustained the relation to him of attorney at
the time of making payment, the proof being that his former
client made no request that the judgment be paid, there was
no presumption that said attorney acted in the matter as
attorney for his former client, and the complaint in an action
by the other judgment debtor, to restrain the collection of the
judgment, will be dismissed.
Action to restrain the collection of a judgment, etc.
Penney, Killeen & Nye, for plaintiflf.
Loomis & Gibbs, for defendants.
Brown, J. On Jnne 10, 1919, judgment was
entered in Erie county clerk's office in favor of Alex-
andra Majchrowska against plaintiff and defendant
Pickarski as joint tort feasors for the recovery of
damages incurred by Majchrowska through the joint
negligence of the plaintiff and defendant Pickarski.
Upon an execution issued on the judgment the sheriff
of Erie county levied upon the property of the defend-
ant Pickarski to satisfy the same. On July 29, 1919,
while the property of the defendant Pickarski was
subject to the levy, the attorney for Pickarski, with-
out the knowledge of Pickarski, paid to the plaintiff in
the execution, Majchrowska, the amount of the judg-
ment, interest and costs, and induced Majchrowska to
assign the judgment to the defendant Heinz, who was
a stenographer in the office of the attorney for Pick-
arski. The money for this payment was the money
of the attorney and was paid to Majchrowska for the
twofold purpose of preventing any of the money
reaching the hands of the attorney for Majchrowska
and also for the purpose of releasing the property of
Pickarski from the levy under the execution and col-
Digiti
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International Railway Co. v. Pickarski. 351
Misc.] Supreme Court, February, 1921.
~ ■ *'
lecting the judgment from the plaintiff railway com-
pany, the joint tort feasor and judgment debtor with
Pickarski. After the assignment of the judgment to
the defendant Heinz the execution was withdrawn and
the property of the defendant Pickarski released from
the levy; thereupon and on August 1, 1919, the
attorney for Pickarski, acting for the defendant
Heinz, procured a new execution to be issued upon
the judgment directing a levy to be made thereunder
upon the property of the plaintiff railway company,
for the satisfaction of the judgment, money realized
therefrom to be paid to the defendant Heinz. In pur-
suance of the execution the sheriff of Erie county
levied upon the property of the plaintiff railway com-
pany, whereupon this action was commenced for
relief. The question is whether, under the circum-
stances, the payment of the moneys by the attorney
for Pickarski was a satisfaction of the judgment.
The law undoubtedly is that the payment of the
amount of the judgment by one of two joint tort
feasor judgment debtors to the judgment creditor is
a payment by both joint tort feasors and satisfies the
judgment. Harbeck v. Vanderbilt, 20 N. Y. 395; lAllie
V. Dannert, 232 Fed. Repr. 104.
If the attorney for Pickarski had paid the money
at the request of Pickarski the judgment undoubtedly
would have been satisfied. Gotthelf v. Krviewitch,
153 App. Div. 746.
The attorney for Pickarski voluntarily paid the
amount of judgment without knowledge of either judg-
ment debtor and took an assignment to his stenog-
rapher. The fact of taking the assignment has been
held to be evidence that the money was not paid in
satisfaction of the judgment when the payment is
made by a stranger not a party to the record. Dow-
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352 International Railway Co. v. Pickarski.
Supreme Court, February, 1921. [Vol. 114.
ling V. Hastings, 211 N. Y. 202; Harbeck v. Vander-
hilt, 20 id. 395.
There seems to be no question but that the attorney
for Majchrowska could have withdrawn the execution
against Pickarski and a levy have been made on that
execution upon the property of the plaintiff railway
company. It is only when one joint tort feasor judg-
ment debtor pays the amount of the judgment that it
is satisfied as to all defendants.
The reason that such a payment of money satisfies
the judgment and cannot be the basis of an assign-
ment, even though in fact an assignment be executed
and delivered, is that the judgment, being a joint
liability of the judgment debtors when owned by the
judgment creditor, ceases to be a joint liability when
owned by one of the joint judgment debtors. A judg-
ment debtor could not own a judgment against himself.
The owner of the fee cannot purchase, own and keep
alive a mortgage upon his own land; the mortgage
is merged in the fee and ceases to exist as a mortgage.
The same theory destroys the judgment when a judg-
ment debtor pays its amount and has it assigned to
himself. As was said in Harbeck v. Vanderbilt, 20
N. Y. 397: ** Where one of several defendants against
whom there is a joint judgment, pays to the other
party the entire sum due, the judgment becomes
thereby extinguished, whatever may be the intent of
the parties to the transaction. It is not in their
power, by any arrangement between them, to keep the
judgment on foot for the benefit of the party making
the payment. If, therefore, in such a case, the latter
take an assignment to himself, or, unless under special
circumstances, even to a third person for his own bene-
fit, the assignment is void and the judgment satisfied.
It is equally clear, that if the money be paid, not by
one who is a party to the judgment and liable upon
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International Kailway Co. v. Pickarski. 353
Misc.] Supreme Court, February, 1921.
it, but by some third person, the judgment will be
extinguished or not, according to the intention of the
party paying. The taking of an assignment, whether
valid or void, affords under all circumstances, unequiv-
ocal evidence of an intention not to satisfy the judg-
ment.'*
The mere fact that the attorney for one of the judg-
ment debtors, unknown to his client, pays the amount
of the judgment to the judgment creditor and takes
an assignment of the judgment to a third person, is
not proof that the judgment was intended to be satis-
fied ; nor does the fact that the attorney for one of the
judgment debtors had such an assignment made for
the purpose of collecting the judgment from the other
judgment debtor prove that the payment was made in
satisfaction of the judgment.
A finding cannot be made on the record that it was
intended by the attorney for Pickarski that the judg-
ment would be satisfied by his payment to Majchrow-
ska. It has long been the law that a stranger may
purchase a judgment without notice to any party to
it, and thus acquire all the rights of the judgment
creditor.
The authority of an attorney for an unsuccessful
defendant ceases with the entry of judgment against
him. Dusk v. Hastings, 1 Hill, 656; Cruikshank v.
Goodwin, 20 N. Y. Supp. 757; Davis v. Solomon, 25
Misc. Rep. 695. With no proof that the attorney who
had acted for Pickarski up to the time of the entry of
the joint judgment, acted as attorney for Pickarski
or even sustained the relation of attorney to him at
the time of making the payment, and with the unchal-
lenged direct evidence that Pickarski furnished no
part of the money, made no request that such money
be paid and had no knowledge of the transaction, the
presumption that such attorney acted as attorney of
23
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354 SCHUBACH V. KOKSHNEB.
Supreme Court, February, 1921. [Vol. 114.
Pickarski cannot be indulged in. Upon the proofs
presented, the inference that the attorney was not a
stranger to the judgment at the time he paid the
money and took the assignment does not arise. The
defendants must have judgment dismissing the com-
plaint.
Judgment for defendants.
JosBPH ScHUBACH, Plaintiff, v. Pinkus Konshneb,
Defendant.
(Supreme Court, Erie Equity Term, February, 1921.)
Statute of Franda — sale of real eatato — insuffident memorandum
— contracts — apeciilc performance — when complaint dia-
misaed.
Where by an oral contraet for the purchase of real estate
it was agreed that the balance of the purchase price, after
certain cash payments, should be paid by plaintiff assuming an
existing mortgage on the property and giving a mortgage for
the difference, a writing which while acknowledging receipt of
the cash payment, did not specify the terms of the mortgage
to be given, how long it was to run or the rate of interest, is
an insufficient memorandum under the Statute of Frauds and
the complaint in an action for specific performance of the
contract will be dismissed, but without costs.
Action for specific performance.
Corcoran & Corcoran, for plaintiff.
Leo P. Donnelly, for defendant.
Wheeler, J. This action is brought to enforce
.specific performance of a contract for the sale of
certain premisos known as 906 Sycamore street in the
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SCHUBACH V. KONSHNBB. 355
Misc.] Supreme Court, February, 1921.
city of Buffalo, N. Y. After some negotiations the
plaintiff paid the defendant $100 on account of the
purchase price of the property, and the defendant
gave the plaintiff the following written receipt:
'' Buffalo, N. Y., Nov. 28, 1918.
** Received of Joseph Schubach One hundred Dollars,
deposit on property 906 Sycamore Street, Purchase
price $5,500 payable as follows: $900 or more April
1, 1920, and mortgage given and assuming for $4,500.
**$100. PiNKus Konshner/'
The defendant Konshner shortly after left the $100
paid at the plaintiff's house and refused to convey
the property. The action is to compel specific per-
formance. The principal defense is that the contract
does not comply with the requirements of the Statute
of Frauds.
Section 259 of the Real Property Law of the state
reads :
'' When contract to lease or sell void — A contract
for the leasing for a longer period than one year, or
for the sale, of any real property, or an interest
therein, is void, unless the contract, or some note or
memorandum thereof, expressing the consideration,
is in writing, subscribed by the lessor or grantor, or
by his lawfully authorized agents."
To entitle a party to the specific performance of
a contract, '^ a note or memorandum, sufficient to take
a contract of sale out of the operation of the Statute of
Frauds, must state the whole contract with reason-
able certainty so that the substance thereof may be
made to appear from the writing itself without
recourse to parol evidence.** Mentz v. Newwitter, 122
N. Y. 491.
The receipt given by the defendant seems to be suf-
ficiently definite and certain to meet all the require-
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356 SCHUBACH V. KONSHNEB.
Supreme Court, February, 1921. [Vol. 114.
ments of the rule stated save in one particular. The
price is specified, $5,500, the names of the parties
given, the property described, and the date of closing
the deal given. It will be noted, however, that the cash
payment was to be $1,000, the $100 paid November 28,
1918, and the $900 to be paid April 1, 1920. The
balance of the purchase price, $4,500, was to be made
up by assuming an existing niortgage on the prop-
erty, and by giving a further mortgage for the dif-
ference. It appeared from evidence given on the
trial that the mortgage to be given would amount to
a considerable sum. The memorandum or receipt
signed by the defendant does not specify the terms of
such mortgage, how long it was to run, or the rate of
interest it should bear. As to the rate of interest
probably the law would presume the parties con-
templated the legal statutory rate. However, as to the
time for which such mortgage should run and the
terms of payment of interest the memorandum is
silent. There was no evidence given on the trial as
to anything said between the parties on that subject,
although under the rule such parol proof would have
been inadmissible.
Under the general rule governing cases of this kind
we think the memorandum relied on is insufficient to
entitle the plaintiff to specific performance. It is too
indefinite and uncertain in the particulars pointed out
to sustain this action. In the case of Milliman v. Hunt-
ington, 68 Hun, 258, the action was one for specific
performance. The memorandum relied on in that case
provided a part of the purchase price was to "be
secured by bond and mortgage of not less than three
years duration.^ ^ The court held the contract too
indefinite to be specifically enforced. The court said
the contract must ** be certain and definite in all its
material provisions," citing Wright v. Weeks, 25 N.
.Digiti
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Kank Realty Co. v. Brown,
Misc.] County Court, Saratoga County, February
T. 153 ; Btickmorster v. Thompson, 36 id. 558
V. Millery 58 id. 192; Brown v. N. Y. C. R. .
id. 79; Drake v. Seaman, 97 id. 230.
In the case of Wright v. Weeks, 25 N. Y
memorandum signed by the owner provide
sale of certain property ^^upon the terms as s
These terms were shown by parol to have
tain cash payments, and the assumption of
ing mortgage, but the court held the agreemi
tive under the Statute of Frauds.
The court cannot make a contract for th(
"We therefore find in this case the plainti
entitled to recover. Under the circumstaTices,
we think the complaint should be dismissed
costs.
Ordered accordingly.
Ejlnk Realty Company, Plaintiff, v. Bernare
Defendant.
(County Court, Saratoga County, February, 192
Adjoining land ownem — falling branch of tree — when
trespass will not lie.
Where during a storm of unusual violence one of
of a tree on defendant's land was so broken that it
plaintiff's land, the mere fact that defendant's
experienced man, went upon plaintiff's land and in £
in a proper manner to remove the limb, which as a
his weight and movements in the tree hud fallen uf
tiff's house, doing damage, does not constitute an
trespass, and defendant's motion for a dismissal of
plaint will be granted.
Action in trespass.
John A. Slade, for plaintiff.
Harold H. Corbin, for defendant.
358 Kank Realty Co. v. Brown,
County Court, Saratoga County, February, 1921. [Vol.114.
McKelvey, J. The parties aie the owners of
adjoining premises at Saratoga Springs, upon each
of which there is erected a dwelling house. A tree of
medium size stood on the defendant's lands near the
boundary. A wind storm of unusual violence broke
one of the limbs of the tree so that it overhung the
plaintiff's premises and menaced his dwelling. A
short time thereafter the defendant employed an
experienced man to remove the limb. When the man
went into the tree with his ropes and other appli-
ances the limb, already weakened, fell as the result
of his weight and his movements. Striking the plain-
tiff's house it caused damages, the amount of which
the jury have estimated by a special finding which is
not questioned.
The plaintiff sues in trespass, there being neither
proof nor allegation of negligence. Moreover, the
defendant's agent, sworn by plaintiff, teetified that
what he did was necessary and proper, and was done
in a proper manner.
The question is, then, whether the mere fact that
an agent of defendant went upon plaintiff's lands,
and in doing a proper act in a proper manner, caused
damage, constitutes an actionable trespass. I call it
a proper act because, with the limb thus menacing his
neighbor's dwelling, it was his moral duty to remove
the menace, regardless of whether, in strict legal
theory, it was or was not his legal obligation. This
question, thus presented upon a remarkably simple
state of facts, has been somewhat disturbing both to
court and counsel, and I was in such doubt upon tii
trial that I deemed it the better practice to reserve
decision upon the defendant's motion for dismissal,
pending the determination by the jury of the amount
of damages, and also of the question whether the limb
did in fact fall by reason of the act of defendant's
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Kank Realty Co. v. Brown.
Misc.] Connty Coort, Saratoga County, February,
agent. The findings of the jury that th« fall of
was due to an act of defendant's agent, am
to the amount of damages, are unchallenged
parties.
The determination of this question depends
in my opinion, upon whether there was or ^
trespass, within the meaning of the rules wi
been applied to that form of action from tin
morial; and a careful examination of a numb
cases cited on both sides leads me to the c(
that an actionable trespass, such as would c
right to damages, must necessarily presupi
involve a wrongful or unjustifiable entry i
lands of another; or the performance of £
proper, careless, wrongful or unnecessary act
An act done in good faith, in a careful an
manner, and in the performance of a legal <
duty, does not, in my opinion, constitute sue
pass. In this holding I believe I am supports
more authoritative cases, and I feel that the
of Judge Earl in Losee v. Buchanan, 51 N. Y.
not only illustrates the distinction very cle
covers the present case in apt and concig
Speaking of the general rule of trespass th<
judge said: ** The rule, as thus announced, 1
exceptions, even when one makes a persoi
upon the lands of another. I may enter my n
close to succor his beast whose life is in d^
prevent his beasts from being stolen or to pi
grain from being consumed or spoiled by i
to carry away my tree which has been bio
upon his land, or to pick up my apples wl
fallen from my tree upon his land, or to takt
sonal property which another has wrongfn
and placed there, or to escape from one who
my life.*'
360 Kank Reax.ty Co. v. Brown.
County Court, Saratoga County, February, 1921. [Vol.114.
This appeals to me as a fair statement of the rule,
for all the purposes of the case at bar. It accords
with the justice and equity of the present situation,
and its application will prevent what would otherwise
result in a palpable injustice.
So far as this proof goes, the tree was not dangerous
before the storm — it became a menace to plaintiff's
property by reason of an act of God, and without the
intervention or fault of defendant. Finding it thus a
menace to his neighbor's home, the defendant, with
reasonable diligence and prudence, and through the
medium of an experienced agent exercising due care,
attempted to remove it in the usual way and in a care-
ful manner. Its fall is not claimed to have been due
to negligence or want of care.
If I am correct in my conception of an actionable
trespass, and unless it can be held that every entry
upon another's lands, for purpose right or wrong, and
with method good or bad, must impose liability for
damages for any and all accidental occurrences, I
think that there can be no basis for recovery in the
case at bar. Had the plaintiff alleged and proven
negligence of any kind, or in any respect, then, con-
fessedly, the rule would be otherwise; but this is
plainly and definitely an action for trespass, and
nothing more.
I therefore grant the defendant's motion for the dis-
missal of the complaint, upon which decision was
reserved pending the answer of the jury to the special
questions submitted.
Ordered accordingly.
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Matteb of KoiiB.
Misc.] Surrogate's Court, BroDX County, Februar
Matter of the Transfer Tax upon the
C. GoTTLOB KoLB, Deceased.
(Surrogate's Court, Bronx County, February, : !
Transfer tax — what not mibject to — statutes — t
davits — Tax Law, § 221(b)— Oode Oiy. Pro. § !
The statute imposing a transfer tax, being a [
law, will be construed strictly against the state ax
to the taxpayer to the end that he may not be I
special burdens without clear warrant of law.
Where the appraiser in fixing a transfer tax i
savings bank account standing in decedent's name i
his daughter, but the proof embodied in an affic i
daughter is that the moneys in said account wei
derived from gifts to her from various persons, ai
by her to decedent who deposited them in the tn I
and that the only withdrawal therefrom was made ;
her request and the money delivered to and used \
account should not have been included in the apprai i
as subject to a transfer tax.
A contention that section 829 of the Code of Civil
applies to the affidavit made by the daughter is unti
while the fact that the affidavit is self serving mi
sidered in deciding what weight should be given to i1
is not warranted in disregarding it particularly as
stand uncontradicted and unimpeached.
Only such transfers of investments as are taxi
article 10 of the Tax Law become liable to taxa
section 221(b) of the Tax Law, which was in force i
of decedent's death, but before the tax thereunder ;
the value of the transfer should be ascertained by
from the value of the investments so much of the d
chargeable against them.
In appraising the fair market value of the transi
investments at the time of decedent's death, the accn
thereon to that date must be included*
Proceedings on appeal from order fixing
tax.
362 Matteb of Kolb.
Surrogate's Court, Bronx County, February, 1921. [Vol. 114.
Ehrich, Wheeler & Walter (William C, Stone, of
counsel), for appellant.
John A. Boyle, Jr., for state comptroller.
ScHXTLz, S. The executors of the last will and
testament of the decedent appeal from the report of
the transfer tax appraiser and the order entered
thereon in this proceeding.
The first ground of error asserted is that in fixing
the tax there was included an account in the Bowery
Savings Bank in form as follows: '^ Christian G.
Kolb, in trust for Marie E. D. Kolb, daughter.'' This
account amounted with interest to the sum of $2,417.51.
It is contended that the moneys evidenced thereby
were the property of the said daughter before the
death of the decedent and form no part of his estate
and that the trust which the form of the account evi-
denced was irrevocable.
The daughter of the decedent named in the account
submitted an aflSdavit in which she set forth that the
moneys deposited therein were her own moneys
derived from gifts made to her by various persons and
entrusted by her to her father, the decedent, who
deposited the same in the said account and that the
only withdrawal was made by her father in the year
1917 at her request in the sum of $400, and was
delivered to and used by her. So far as the record dis-
closes, the appraiser did not require the deponent to
appear and be examined nor was any other witness
interrogated.
The form of the account standing alone establishes
a tentative trust revocable at will, until the depositor
died or completed the gift in his lifetime by some
unequivocal act or declaration, such as the delivery of
the pass book or notice to the beneficiary. Matter of
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Matter of Kolb. 363
M^sc] Surrogate's Court, Bronx County, February, 1921.
Totten, 179 N. Y. 112 ; Matthews v. Brooklyn Savings
Bank, 208 id. 508.
In this matter we have nothing but the presumption
which the form of the account raises, on the one side,
and on the other, the aflBdavit in question which, if it
truthfully states the facts, rebuts the presumption,
shows that the moneys deposited were in fact the prop-
erty of the daughter and would lead to the conclusion
that the account should not have been included for
purposes of taxation. See cases cited in Matter of
Klein, 92 Misc. Rep. 318.
I find no support in the authorities for the conten-
tion that section 829 of the Code applies to the aflBdavit
in question. The same are to the contrary {Matter
of Gould, 19 App. Div. 352; 156 N. Y. 423; Matter of
Brundage, 31 App. Div. 348; Matter of Bentley, 31
Misc. Rep. 656), and while the affidavit is self-serving
which fact must be considered in deciding what weight
shall be given to it, and must be received with caution,
that of itself does not warrant me in disregarding it.
Matter of McGUlicuddy, 194 App. Div. 28. In view of
the fact that the aflSdavit was received, the deponent
not subjected to an examination or cross-examination
and that its recitals stand uncontradicted and unim-
peached, I reach the conclusion that the account in
question should not have been included for purposes
of taxation. The law imposing the tax, being a special
tax law, must be construed strictly against the govern-
ment and favorably to the taxpayer, so that the latter
may not be subjected to special burdens without clear
warrant of law. Matter of Vassar, 127 N. Y. 1, 12.
When there is any doubt as to whether a tax is to be
levied or not, it should be resolved against the state.
Matter of Wiemann's Estate, 179 N. Y. Supp. 190.
Another ground of appeal is that a tax was fixed
upon some investments pursuant to the provisions of
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364 Matter of Kolb.
Surrogate's Court, Bronx County, February, 1921. [Vol. 114.
section 221-b of the Tax Law (Cons. Laws, chap. 60,
as amd. by Laws of 1917, chap. 700, § 2), which
section is claimed to have been in violation of the Con-
stitution of the United States and that of the state of
New York.
Since the argument of the matter, however, the
United States Supreme Court has rendered its opinion
in Matter of Watson, N. Y. L. J., Dec. 11, 1920, to the
eflFect that the statute in question violated neither the
state nor the federal Constitution. In the brief of the
appellants it was conceded that a decision in that
matter would dispose of the constitutional question
raised by them on this appeal.
It is further claimed by the appellants that it was
error to fix the amount of said tax under section 221-b
of the Tax Law, supra, without deducting from the
value of the investments subject to such tax a pro-
portionate amount of the debts and other charges paid
by the executors, and further that under the section in
question, accrued interest should not have been
included in determining the value of the investments.
Section 221-b, since repealed by chapter 644 of the
Laws of 1920, was in force upon the date of the dece-
dent *s death and provided so far as material to the
question involved, that: '* Upon every transfer of an
investment, as defined in article fifteen of this chapter,
taxable under this article, a tax is hereby imposed, in
addition to the tax imposed by section two hundred
and twenty-one-a, of five per centum of the appraised
inventory value of such investment, * * *.*'
The report of the appraiser fixes the gross value of
the estate of the decedent at $323,940.44; the deduc-
tions at $43,672.44 and the net estate at $280,268. In
the gross estate are contained investments taxable
under the section stated which the appraiser has
valued at the sum of $161,029.47, so that it is evident
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Matter of Kolb. 365
Misc.] Surrogate's Court, Bronx County, February, 1921.
that the securities bear the same proportion of the
deduction which the value of such securities bear to
the value of the gross estate which is forty-nine and
seven-tenths per cent thereof or in value $21,705.20.
It is claimed that the appraiser was in error in failing
to deduct said amount from the value of said securities
before imposing the tax of five per cent under section
221-b.
The question to be considered has been the subject
of an opinion by the comptroller of the state of New
York, reported in 14 State Department Beports, 535,
in which he states that the language of the section pro-
viding that if the investments are liable to this addi-
tional tax it must be five per cent of the " appraised
inventory value *^ precludes any consideration as to
how much a legatee or distributee may actually
receive, and that this additional tax becomes the
state's property upon the death of the owner without
any reference whatsoever to such amount.
From the language of the section itself, it is
apparent that the tax under section 221-b is not a tax
upon the property itself, but is only a tax upon the
transfer thereof just as that under the other sections
of the article have been held to be. Matter of Watson,
226 N. Y. 384; affd., U. S. Sup. Ct., N. Y. L. J. Dec. 11,
1920; Matter of Hazard, 228 N. Y. 26; Matter of Van-
derbUt, 187 App. Div. 716; Matter of Penfold, 216
N. Y. 163; Keeney v. State of New York, 222 U. S. 525.
As only such transfers of investments as are taxable
under article 10 become liable for the tax which sec-
tion 221-b imposes upon them {Matter of Wa^h-
bourne, 180 N. Y. Supp. 507; affd., 190 App. Div. 940;
affd., 229 N. Y. 518; Matter of Zimmerman, 110 Misc.
Rep. 295), and as debts are deducted from the estate
before the value of the transfer is fixed for purposes of
taxation under article 10, it would seem to me that
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366 Matter of Kolb.
Surrogate's Court, Bronx County, February, 1921. [Vol. 114.
before the tax under section 221-b is imposed, the value
5f the transfer should be ascertained by similarly de-
ducting from the value of the investments so much of
the debts as are chargeable against them. The sections
of article 10 should be read together. Matter of Aus-
tin, 109 Misc. Rep. 584 and cases cited. If we construe
the phrase ** appraised inventory value '' to mean the
market value of the investments at the time of the
death of the decedent regardless of the liabilities
which exist against them instead of as meaning the
inventory value of the investment as appraised for
purposes of taxation, that is after the deduction of a
proportionate amount of the debts, it would appear
that the tax would not be a tax upon the transfer but
rather a tax upon the property itself, whereas in
Matter of Watson, 226 N. Y. 384, 401, the court said:
* ' It is a flat tax of five per cent upon the transfer of
property not theretofore taxed as specified.'^
Startling results might follow if such a construction
were favored. Assuming an estate to consist of
$100,000 in investments as defined by article 15 of the
Tax Law, and $1,000 of other property, and to be sub-
ject to debts of $100,000, the transfer in such estate,
assuming that it goes to a person of the five per cent
class, would be taxable under article 10, hence it would
be taxable under section 221-b. The tax under section
221-a would be on $101,000, less debts of $100,000, that
is on $1,000, whereas the additional tax under section
221-b would be five per cent of $100,000, although it
would be necessary to apply approximately $99,010 of
the investments to the payment of the debts. Only
about $990 of the investments would remain and be
transferred, upon which a tax of $5,000 would be
imposed.
The use in the statute of the phrase ** appraised
inventory value '' was unfortunate, and while the
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Google
Matter of Kolb. 367
Misc.] Surrogate's Court, Bronx County, February, 1921.
question is not free from diflSculty, I do not believe
the intent of the legislature was to the effect claimed
by the counsel for the comptroller. I find support for
this view in the decisions of the surrogates of the
counties of New York and of Kings. Thus in Matter
of Kemp and in Matter of Peck, both reported in the
New York Law Journal of March 3, 1920, the learned
surrogate of Kings county reversed orders fixing
transfer taxes and remitted the matters to the
appraiser to deduct proportionate amounts of the
debts and administration expenses from the value of
the securities taxable under section 221-b of the Tax
Law. In Matter of Kent and in Matter of Turner,
N. Y. L. J. June 17, 1920, it was held by one of the
learned surrogates of New York county that the
appraiser erred in not including the funeral and
administration expenses and commissions in making
an allowance for the proper deduction from the market
value of the securities in fixing the sum on which the
tax should be imposed under section 221-b.
In Matter of Watson, 226 N. Y. 384, the court said:
** Again, it must be noted, that if the amount of an
estate is eaten up by debts so that the assets consisting
of these investments do not pass to anybody, of course,
there can be no tax. Likewise the investments should
pay their proportionate part of the debts without
tax " (italics are mine), and while it may be urged
that the statement quoted was dictum, it is the only
expression by the Court of Appeals that I have been
able to find upon the question.
I hold that a proportionate amount of the deduc-
tions should have been charged against the invest-
ments mentioned before fixing the value of their trans-
fer for purposes of taxation under section 221-b.
The contention that the interest to. the date of the
death of the decedent should not be included in
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Surrogate's Court, New York County, February, 1921. [Vol. 114.
appraising the value of such investments is not sus-
tained. It is the fair market value of the transfer at
the decedent *s death which must be ascertained (Tax
Law, § 230), and this includes accrued interest. Mat-
ter of Peck, supra.
The fourth ground of appeal is from the taxation
of the securities hereinbefore referred to under section
221-b aforesaid, it being claimed that such section was
suspended, nullified and repealed by the provisions of
chapter 627 of the Laws of 1919. This ground, how-
ever, was not urged in the brief, and in my opinion i»
not tenable.
The order appealed from is reversed for the rea-
sons stated and the report remitted to the appraiser
to proceed as above indicated.
Order reversed.
Matter of the Estate of John Fox, Deceased.
(Surrogate's Court, New York County, February, 1921.)
Wills — conBtruction of — what does not work a forfeiture of a
legacy — gift over — accounting.
A testamentary provision that in case any beneiiciary shall
directly or indirectly contest or litigate the validity, factum
or effect of the will in any action or proceeding with a view
to void or annul the will, the legacy of such contestant shall be
revoked and any devise or bequest in favor of such contesting
person shall be absolutely void, and the will take effect and
be administered as though such contesting person predeceased
the testator, does not work a forfeiture of the legacy to a con-
testant, unless there is a gift over in ease of breach of the
condition, and a gift of the residue is not such a gift over.
Proceeding npon an accounting by a trustee.
Edwin C. Mulligan, for The Equitable Trust Com-
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Matter of Fox.
Misc.] Surrogate's Court, New York County, February.
Ellwood M. Eabenold, special guardian for
arine Hogan O'Brien and John Fox O'Brien.
Eleanor B. Fox, beneficiary under the ^
person.
CoHALAN, S. In this accounting proceedi
court is asked to pass upon the validity or el
the *' in terrorem " clause contained in par
22 of the will as against Eleanor B. Fox by
of her action in the Supreme Court to have i
will and testament of the deceased set asi<
adjudged invalid. Paragraph 22 of the will p
in substance that in case any beneficiary na
the will shall directly or indirectly contest or
the validity, factum or effect of the will in any
or proceeding with a view to void or annul tl
the legacy of such contestant shall be revoke
any devise or bequest in favor of such cor
person shall be absolutely void and the will
take effect and be administered as though su
testing person died before me." The cases he
a forfeiture of a legacy is not effected by such
vision in a will unless there is a gift over in
the breach of the condition, and a gift of the
is not such a gift over. Matter of Wall, 76 Mis
106 ; Matter of Arrowsmith, 162 App. Div. 623.
graph 22 contains no gift over in particular tei
provides that the will shall be construed as
contesting person — in this case, Eleanor B.
I had predeceased the testator. We must theref (
j at the provisions of the will which would be e
1 in case Eleanor B. Fox were not living at the
the death of the testator. Paragraph 17 of i
provides that in case of the death of Eleanor
without issue her share of the estate is beques
Katharine O'Brien. The legacy is in expres
24
370 Matter of Mitchell.
Surrogate's Court, New York County, February, 1921. [Vol. 114.
the gift of the residue of the estate. This general
residuary clause under the authorities above cited
does not appear to be sufficient to make the forfeiture
effective. Furthermore, the one primarily interested
in sustaining the forfeiture is Katharine O'Brien, as
under the terms of paragraph 17 of the will she
would be entitled to Eleanor B. Fox's share. The
O'Brien infants, children of Katharine O'Brien, repre-
sented by the special guardian in this proceeding, are
only contingently interested in the share of Eleanor
B. Fox in the event of the latter 's death without issue,
which they would take provided their mother, Katha-
rine O'Brien, should predecease them. Katharine
O'Brien makes no claim of forfeiture against Eleanor
B. Fox. In view of all the foregoing it is the opinion
of the court that no forfeiture has resulted.
The proceeds of the sale of the furniture, furnish-
ings and appurtenances of the residence ** Foxhurst "
should be distributed equally between Katharine
O'Brien and Eleanor B. Fox.
A decree may be submitted on notice settling the
account accordingly.
Decreed accordingly.
Matter of the Estate of John A. Mitchell, Deceased.
(Surrogate's Court, New York County, February, 1921.)
WillB — oonstmction of — speciflc legacies — corporations — part-
nership agreements.
An agreement between partners, contemplating the incorpo-
ration of their business as a publishing company, stated that
it was the desire of both to retain within their own control, so
far as possible, the entire management of the corporation about
to be formed, with power to purchase each other's stock.
Held, that this option only existed during the lifetime of the
parties. One of the partners who at his death, twenty- fi-e
years later, was the o^vner of three-fourths of the capil.il
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Matter of Mitchell.
Misc.] Surrogate's Court, New York Connty, Febmar}
stock of the company, bequeathed one hundred ai
shares thereof to his sister, cousin and three of his
in the business, in different allotments, with proviso tl
of said legatees should not survive him the share w
legatee would have received should go to his or her
children in equal shares, or in default of such issue
' the testator, then such shares should go to the next
each of the original legatees in equal shares, per st
not per capita. The remaining shares owned by test
bequeathed in trust for his wife for life, and at 1
to several of his business associates, including the t
▼iously remembered. Held, that all the legacies wei
and the legatees were severally entitled to a pro rata
tion of a dividend on the stock, declared within a ye
death of the testator.
During a four months' illness of a servant who ha<
testator's employ for the fourteen months preceeding
he paid her medical and hospital expenses and thougl
not discharged she received no salary. The hospital
were in excess of her wages during her absence, t
resuming work she continued in the ser\'ice of the test
his death, seven months later. Held, that under a clai
will reading : " I give and bequeath * * * to ea
other servants who are in my employ * • * at
of my death and have been so employed by me foi
than one year preceding my death, the sum of five
dollars," said servant was entitled to the legacy.
Proceeding upon the judicial settlement
accounts of executors.
Spencer, Ordway & Wierum (Nelson S. f
of counsel), for executors Charles Holt and
H. Ordway.
Root, Clark, Buckner & Rowland (Grenvill
and Cloyd Laporte, of counsel), for objecting: 1
Murray, Ingersoll, Hoge & Humphrey (T
F. Humphrey, of counsel), for executor Georj
Ingersoll.
Francis J. Hogan, for Mary Broderick.
Surrogate's Court, New York County, February, 1921. [Vol.114.
F0I4EY, S. On the accounting two questions arise.
John A. Mitchell executed his will May 27, 1918, and
died about a month later. He bequeathed 750 shares
of stock in the Life Publishing Company, of which 180
were given outright to his sister, his cousin and three
associates in his business. The remaining 570 shares
he gave in trust to his widow for life, and on her
death to several of his associates, including the three
previously remembered. The weekly magazine Life
was founded by himself and Andrew Miller in 1882.
Mr. Mitchell's interest was three-fourths, and Mr.
Miller's one-fourth of the firm. In 1892 the partner-
ship was incorporated, with a capital of $10,000. Mr.
Mitchell received 750 shares and Mr. Miller the
remaining 250 shares in the company, which each
retained up to Mr. Mitchell's death. The former was
president, and the latter secretary and treasurer of the
company. The business grew from an original capital
of $600 to a valuation, in 1920, of $1,000,000.
The first question in dispute is whether the legacies
of 180 shares are general, as claimed by the executors,
or specific, as contended by the legatees. The decision
of this question also involves the payment of a
dividend, declared within one year of the death of
testator, amounting to $100 i)er share, or a total of
$18,000. If the legacies are specific this amount goes
to the legatees ; if general, it goes into the residuary
estate left to the widow. I hold that the legacies are
specific. Matter of Security Trust Co., 221 N. Y.
213, sustains this finding. The 2d paragraph of the
will, which relates to this stock, is as follows:
** Second. I give and bequeath to my sister, Anna M.
Richards, one hundred shares of the capital stock of
Life Publishing Company; to my cousin, Amelia H.
Ames, fifty shares * * * ; to Edward S. Martin ten
shares * * *: to James S. Metcalfe ten shares
Matter of Mitchell. 373
Misc.] Surrogate's Court, New York County, February, 1921.
• • •; to Thomas L. Masson ten shares * * *.
If any of said legatees shall not survive me, then I
give and bequeath the shares of stock which any such
legatee would have received under this paragraph if
he or she had survived me to his or her children who
shall survive me, in equal shares, or if any of such
legatees should leave no . children surviving me, then
I give and bequeath the same to his or her next of
kin in equal shares, per stirpes but not per capita.'^
The 3d paragraph bequeathed the remaining 570
shares.
In Matter of Security Trust Co., supra, 219, Mr.
Justice Crane says: ^^ It is the intention of a testator,
as gathered from his entire will, which determines
whether the legacy be general or specific." A very
slight indication of an intention to give shares owned
by him when the will is executed is enough to make
the legacy specific. Thayer v. Paulding, 200 Mass.
98,
The indications of intent in this will are just as
strong as those in Matter of Security Trust Company.
The stock of the Life Publishing Company was not
publicly dealt in. The corporation here was even a
closer one, with but two stockholders. The agreement
of 1892 between Messrs. Mitchell and Miller stated:
** The parties desire * * * to retain as far as
possible the entire management of said corporation
so to be formed within their own control. ' ' Under this
agreement also each had the power to purchase the
other's stock, in the event of a desire to withdraw
or to sell the stock to an outsider. A fair construc-
tion of this contract is that this option only existed
during the lifetime of the parties. After the death of
either, the executor of the deceased did not possess
the option to purchase from the survivor. In the
present case Mr. Mitchell bequeathed and owned at
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374 Matter of Mitchell.
Surrogate's Court, New York County, February, 1921. [Vol. 114.
his death 750 shares out of a total issue of 1,000,
whereas in the Security Trust Company case the
decedent held and bequeathed 2,024 out of 5,000 shares
in the company. Mr. Mitchell must have known that
his executors would not be able to replace the stock
bequeathed by him in case he disposed of it, in whole
or in part, during his lifetime. His will disposes of
the exact number of shares owned by him at the time
it was executed. At his death he possessed the same
amount of stock. The legatees here were favored rela-
tives and business associates who apparently had
helped to make the business successful. His intention
was plainly to give them an immediate interest. More-
over, he provided for a complete disposition of the
stock, to the children or next of kin of the legatees,
in case any one predeceased him. Finally it is claimed
by the executors that there is a distinction between
the gift of the 180 shares and the gift of the remainders
in the 570 shares, because of the use of the word ^* my '*
in paragraph 3 referring to the latter, which
authorizes the trustees ** to retain all of my said 570
shares.'* This contention cannot be sustained. The
executors concede that the legacies of the 570 shares
are specific. Tifft v. Porter^ 8 N. Y. 516. There is no
actual diflFerence between these two groups. The
words of gift in each case are the same. In the case
of the 570 shares which were left in trust he neces-
sarily conferred powers upon, and gave instructions
to, his trustees. Certain of the legatees receive shares
under both clauses. The use of the word '^ my,'* there-
fore, does not limit one group but characterizes all of
the legacies as specific. 2 Jarman Wills (6th ed.),
1028, 1077; Kunkel v. MacGill, 56 Md. 120. For these
reasons the legatees are entitled to the specific shares
and to a pro rata distribution of the dividend of
$18,000, but without interest.
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Matter of Rowley. 375
Misc.] Surrogate's Court, Westchester County, February, 1921.
The second question has to do with the claim of
Mary H. Broderick, one of his servants, under the
5th paragraph of the will, which reads: '^ I give and
bequeath * * * to each of my other servants who
are in my employ * * • at the time of my death
and have been so employed by mo for not less than
one year preceding my death, the sum of five hundred
dollars." The executors dispute her claim. It appears
that Mary H. Broderick was employed by the testator
for fourteen months, from May 1, 1917, to his death
on June 29, 1918. During this period she became ill
and was obliged to go to the hospital. Mr. Mitchell
paid her medical and hospital expenses amounting to
$262. It is true that her salary was not paid during
the four months of her illness, but she was not
discharged and she was excusably absent. The hospi-
tal expenses were in excess of her wages during her
absence. As soon as she was able she resumed her
work and continued until his death seven months later.
It is neither in harmony with the spirit of his will,
nor his generous treatment of her, that she should be
deprived of this small legacy. I hold that she is
entitled to it.
Decreed accordingly.
Matter of the Probate of the Last Will and Testament
of William S. Rowley, Deceased.
(Surrogate's Court, Westchester County, February, 1921.)
Surrogates ' OonrtB — service by publication — probate ~- when
motion to vacate service of citation by publication denied —
wiUs.
The presumption in favor of the regularity of judicial pro-
cess should not be lightly disregarded, and the statement in
the moving affidavit on a motion to vacate the service of the
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376 Matteb of Bowley.
Surrogate's Court, Westchester County, February, 1921. [Vol. 114.
citation to attend the probate of a will, that '^ I did not receive
the citation or summons by mail" cannot be accepted as a
reason for opening up the decree admitting the will to probate.
Motion to vacate and set aside a decree admitting
a will to probate.
Horace Comfort (Frederick P. Close, of counsel),
for motion.
Mott & McCready, in opposition.
Slater, S. Upon notice of motion, Samuel Rowley
Macdonald and John Rowley seek to vacate and set
aside the decree entered herein on the 7th day of
October, 1920, admitting to probate the will of William
S. Rowley, and for leave to file objections to the pro-
bate of said will. The petition was served upon them
and others by publication and mailing. The petition
for the order of publication recited that Samuel Row-
ley Macdonald resides at Wallingford, Conn., and
John Rowley resides at Palo Alto, Cal. Pursuant to
the order of publication, citation was duly published
and mailed to them at said addresses, as appears by
the affidavits of publication and mailing. The citation
issued July 13, 1920, and was returnable September
28, 1920. They both swear in their affidavits, and
Samuel Rowley also appearing personally, and stated,
that they never received the citation by mail and were
not otherwise informed as to the probate of the will
until late in October, 1920.
When service of process is made by mail, the deposit
in the post office is the service. Elliot v. Kennedy, 26
How. Pr. 422. The provision of the statute for service
by publication is a substitute for personal service, and
it must be strictly observed. Fink v. Wallach, 47 Misc.
Rep. 242; Fair v. Kenntf, 103 id. 412. The serv-
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Matter of Rowley. 377
Misc.] Surrogate's Court, Westchester County, February, 1921.
ice of the citation in every way complied with the
Code. It is presumed that, when papers are mailed,
they are received by the person who is addressed, and
that the person is fairly and fully apprised. Mish-
kind V. Sidorsktf, 189 N. Y. 402 ; Heller v. Levinson, 166
App. Div. 673. The burden of proving want of juris-
diction is upon the party questioning it, and it must
be established in a clear and satisfactory manner to
nullify the decree. Steinhardt v. Baker, 20 Misc. Rep.
470; affd., 163 N. Y. 410. Upon motion to vacate a
service of citation, the moving party must distinctly
negative the existence of circumstances which would
render the service valid.
By subdivision 6 of section 2490 of the Code of Civil
Procedure the surrogate is authorized: ** To open,
vacate, modify, or set aside, or to enter as of a former
time, a decree or order of his court ; or to grant a new
trial or a new hearing for fraud, newly discovered
evidence, clerical error, or other sufficient cause
• • * only • • • in the same manner, as a court
of record of general jurisdiction exercises the same
powers. '' The complaining parties do not allege
fraud, newly discovered evidence or clerical error.
Do they come under ** other sufl&cient cause!'' Matter
of Toivnsend, 215 N. Y. 442; Matter of TUden, 98 id.
434; Matter of Henderson, 157 id. 423; Ferguson v.
Crawford, 70 id. 253. The excuse offered is that they
did not receive the citation through the mails. It was
admitted by Samuel Rowley Macdonald that he was at
Wallingford, Conn., throughout the summer of 1920
and was well known to the postal authorities. John
Rowley stated in his affidavit that he had not lived at
Palo Alto, Cal., but at Berkeley, Cal., for over twelve
years last past. However, deeds executed by him in
1910, recorded in the Westchester county register's
office, recite him as a resident of Palo Alto, Cal. The
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378 Matter of Rowlbt.
Surrogate's Court, Westchester County, February, 1921. [Vol. 114.
attorney for the proponent, upon inquiry, was
informed by members of the family on the day of the
funeral of the decedent that John Rowley's post office
address last known to them was Palo Alto. At this
hearing no one was produced who knew otherwise.
The circumstances under which the power may be
exercised are questions addressed to the court to
which application is made. Matter of Severance, 106
Misc. Eep. 710, and cases cited; Matter of Tilden, 98
N. Y. 434; Matter of Henderson, 157 id. 423; Matter
of Toivnsend, 215 id. 442; Matter of Hermann, 178
App. Div. 182.
In Matter of Norwood, 111 Misc. Rep. 530, the peti-
tioner had knowledge of the correct address of the
persons served; but mailed the citation to another
place and, consequently, the decree of probate was
opened. In Pfotenhauer v. Brooker, 52 Misc. Rep. 649,
statement was made that not only was no summons
ever served, but at the time when, and place where,
the service was alleged to have been made, the defend-
ant was not present and had not been at that place.
It appears from the evidence that both Samuel Row-
ley Macdonald and John Rowley had engaged the same
attorney early in July, 1920. On the day of the issu-
ance of the citation, July 13, 1920, the attorney for
the proponent wrote Mr. Comfort and said: *' Refer-
ring to your favor of the 13th instant in the matter of
the estate of William S. Rowley, we filed the original
will and probate papers on the 13th instant and
obtained order for publication of citation returnable
on September 28th at 10 a. m. at White Plains.''
From letters in evidence it seems that throughout
the summer the two moving parties were considering
a contest of the probate of the will. The whole matter
was gone over with counsel. John Rowley wrote to
Digiti
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Matter of Bowlbt. 379
Misc.] Smrogate's Court, Westchester County, February, 1921.
his attorney on August 20, 1920: '' The matter of a
contest I leave entirely in your hands. *'
I can imagine a case where the citation, though prop-
erly served by publication and mailing, never was
received by the party sought to be served because he
was absent in a distant country and could not and did
not receive notice until after the decree of probate.
Such facts do not exist in the instant case. The pre-
sumption in favor of the regularity of judicial process
should not be lightly disregarded. I have been unable
to find a case anywhere where the excuse *^ I did not
receive the citation or summons by mail '' was offered
and accepted as a reason for opening up a decree or
judgment. A practice which would permit decrees
to be opened from time to time on such an excuse
would lead to intolerable consequences and dangers to
judicial determinations. Opportunity would be
offered, and in fact invited, for fraud to be practiced.
The conclusiveness of surrogates' decrees, section
2550 of the Code, would be shallow indeed. In the
instant case the attorney failed to suggest to his
clients what he knew, namely, that the citation had
issued and was returnable September 28, 1920. His
oversight, or neglect, and his clients' statements that
they failed to receive the citation are not sufficient
causes, in my opinion, to open the decree of probate.
No valid grounds of objections within my jurisdiction
are presented, and the decree admitting the will to
probate should not be set aside.
Under section 2763 of the Code of Civil Procedure,
the Appellate Division is called upon on appeal to
review this determination as if an original application
were made to that court. Matter of Shonts, 229 N. Y.
374, 378.
Counsel opposed to the motion called for certain
correspondence passing between Mr. Comfort and the
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380 Chemung Iron & Steel Co. v. Hobn.
Appellate Term, First Department, February, 1921. [Vol. ]14.
moving parties hereto. They refused to produce the
correspondence, but stipulated upon the record that
the court should read the letters and insert in the
record such part thereof as reflected upon the question
involved. This I have done.
Motion denied.
Chemung Iron and Steel Company, Appellant, v.
Herman S. Horn and Another, Respondents.
(Supreme Court, Appellate Term, First Department, December,
1920, Term — Filed February, 1921.)
Oontracts -r- delay in delivery of goods — rescission — evidence.
The rule that while delay in the performance within a rea-
sonable time of a contract calling for successive deliveries of
goods may give rise to a cause of action for damages it will
not always permit rescission, does not apply to an executory
contract of sale where delivery within a reasonable time is a
concurrent condition to any obligation of the buyer to accept
and pay and where the time to perform such condition has
expired before notice of rescission was given.
More than four months after the making, on September 13,
1918, of a contract for the sale and delivery of certain iron,
and at a time when plaintiff was not ready to deliver the
goods, defendants in writing cancelled the order, and while the
testimony on behalf of plaintiff in an action for damages
tended to show that the average time in which it was possible to
secure delivery of goods called for by the contract, during the
war, was from four to five months, one of the defendants
testified that plaintiff stated that it could deliver the goods
within four or five weeks. Held, that a finding that on Jan-
uary 16, 1919, when the order was cancelled because of plain-
tiff's delay, more than the reasonable time contemplated for the
delivery of the goods had elapsed, was warranted.
The trial court having found upon proper evidence thut
plaintiff did not deliver the goods within a reasonable time, as
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Chemung Iron & Steel Co. v. Horn. 381
Misc.] Appellate Term, First Department, February, 1921.
required by the contract of sale, the plaintiff had no right of
action for damages, and a judgment dismissing the complaint
upon the merits will be affirmed.
Appeal by plaintiflf from a judgment of the Munic-
ipal Court of the city of New York, borough of Man-
hattan, second district, in favor of defendants dismiss-
ing the complaint upon the merits.
Morrell, Bates, Topping & Anderson (Laurence A.
Anderson, of counsel), for appellant.
Cohen, Haas & Schimmel (Isadore Cohen, of coun-
sel), for respondents.
Lehman, J. The contract herein was made on Sep-
tember 13, 1918. When the defendants wrote to the
plaintiflf that they cancelled the order, more than four
months had passed, and concededly even at that time
the plaintiff was not ready to deliver the goods. While
the plaintiff produced testimony to show that the aver-
age time in which it was possible to secure delivery of
goods of this kind during the war was from four to
nine months because, as one witness stated, deliveries
were made " at the mill's convenience," there can be
no doubt but that in view of the defendant's testimony
that the plaintiff stated it could deliver within four
or five weeks, the trial justice was entirely warranted
in finding that on January sixteenth, when the defend-
ants notified the plaintiff that they cancelled the order
because of plaintiff's delay, far more than the reason-
able time as contemplated by the parties for the
delivery of the goods had elapsed.
In the case of Pope v. Terre Haute Car <& Mfg. Co.,
107 N. Y. 61, the court stated: *' There is no allega-
tion in the complaint as to the time within which the
contract was to be performed by delivery of the iron.
Digiti
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Appellate Term, First Department, February, 1921. [Vol. 114.
and no time is mentioned in the written contract. The
law supplies the omitted term, and the contract in legal
effect was an engagement on the part of the plaintiffs
to deliver within a reasonable time. The promise of
the plaintiffs to sell and deliver the iron, and of the
defendant to receive and pay therefor were mutual
and concurrent and neither party can maintain an
action against the other for a breach of the contract
without proving performance on his part. It was,
therefore, necessary, as a matter of proof, that the
plaintiff slouW show that he delivered, or offered to
deliver, the iron within a reasonable time, for this was
his contract, and whatever is essential to a cause of
action must be averred.'' That rule of law was well
established and well recognized even before the time
of that decision, and I cannot find that it has ever been
overruled or even questioned by any decision since
then, but was expressly reaffirmed in the case of
Eppens, Smith S Weimann Co. v. Little John, 164
N. Y. 187. In the present case the trial justice has
found upon proper evidence that the plaintiff did not
deliver or offer to deliver the goods it sold within a
reasonable time as required by its contract, and it
would, therefore, seem that the plaintiff has no right
of action against the defendants.
It is claimed, however, that under the decision of
Taylor v. Goelet, 208 N. T. 253, even though the plain-
tiff had failed to perform its contract within a reason-
able time, the defendants had no right to give notice
of cancellation without prior notice to the plaintiff
requiring performance within a reasonable time speci-
fied in the notice. In that case the court decided that
no rescission can be made of an executory contract
where the time of performance has been left indefinite
until time has been made an essential element of the
contract by a reasonable notice demanding perform-
Chemung Iron & Steel Co. v. Horn. 383
Misc.] Appellate Term, First Department, February, 1921.
ance and stating that the contract will be rescinded
if the notice is not complied with. It is to be noted,
however, that the court was there considering the
rights of the parties under a building contract involv-
ing successive or continued acts, and which necessarily
remained in existence until rescinded by one party,
and which if rescinded after performance was begun,
would necessarily result in a forfeiture, by the party
partially performing, of the value of his work. It
would not, however, seem to have any application to
an executory contract of sale of goods not to be
specially manufactured by the seller and where the
seller was required merely to perform the one act of
delivering the goods to the buyer. In such a case as
shown above, the seller must tender delivery within
a reasonable time, and if he fails to do so, the buyer
is under no obligation to accept the goods. No rescis-
sion of the contract by the buyer is, therefore, neces-
sary, but the buyer's obligation has ceased when the
seller failed to perform the concurrent condition to be
performed on his part. A notice on the part of the
buyer that the contract is cancelled is, under such
circumstances, not a wrongful act on his part nor a
roj^udiation of his obligation, and, therefore, cannot
give rise to any cause of action on the part of the
seller. It should be regarded rather as an intimation
on the part of the buyer that in his opinion the reason-
able time for delivery had passed, and that therefore
the seller need not go to the trouble and expense of
making a tender which will not be accepted. In send-
ing such notification the buyer assumes the risk of the
court or jury deciding that a reasonable time had not
in fact yet elapsed, but he assumes no other risk or lia-
bility. While the case of Taylor v. Goelet, supra, has
not been expressly limited, it is significant that in the
subsequent case of Brede v. Rosedale Terrace Co., 216
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384 NORTHMANN V. HaAS.
Appellate Term^ First Department, February, 1921. [Vol. 114.
N. Y. 246, it is cited as an example of the rule that :
** Where a contract involving successive or continued
acts is to be performed in a reasonable time, delay,
though it will give rise to a cause of action for dam-
ages, will not always permit rescission.'' It has been
applied to executory contracts of sale where the
goods were to be specially manufactured, and to
executed contracts of sale where the price was paid
and title passed before delivery, but it evidently has
no application to an executory contract of sale where
delivery within a reasonable time was a concurrent
condition to any obligation of the buyer to accept and
pay, and where the time to perform such concurrent
condition had expired before the notice was sent.
Judgment should therefore be affirmed, with twenty-
five dollars costs.
Guy and Wagner, JJ., concur.
Judgment affirmed, with twenty-five dollars costs.
Henry E. Northmann, Landlord, Respondent, v.
Abraham Hass, Tenant, Appellant.
(Supreme Court, Appellate Term, First Department, December,
1920, Term — Filed February, 1921.)
Lease — exercise of option to renew — notice — landlord and ten-
ant — summary proceedings — evidence.
By a lease expiring April 30, 1920, the tenant had the option
of a renewal for three years upon giving notice to the land-
lord by registered mail between April 1 and November 1, 1919.
During that time the tenant gave both oral and written notice
to the general agent of the landlord having charge of the prem-
ises and collection of rents, that he exercised his option to
renew. Held, that where the testimony of the tenant in a sum-
mary proceeding against him as a holdover brought by one
Digiti
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NORTHMANN V. HaAS. 385
Misc.] Appellate Term, First Department, February, 1921.
who became the owner of the premises during the continuance
of the lease, was to the effect that when he gave the oral and
written notice he was told by the agent that notice by regis-
tered mail was not necessary, was denied by the agent, a ques-
tion of fact was presented and a final order in favor of the
landlord entered by direction of the court after a jury trial
will be reversed and a new trial ordered.
Appeal by tenant from a final order entered in favor
of the landlord in the oflBce of the clerk of the Munic-
ipal Court of the city of New York, borough of The
Bronx, first district, upon direction of a verdict by
the court after trial before a jury.
Bernard S. Deutsch, for appellant.
Robert E. Bergnmn (Louis Steckler, of counsel), for
respondent.
Wagner, J. Holdover proceedings were brought to
recover possession of premises occupied by the tenant
under a written lease expiring April 30, 1920. The
premises were owned by one Ebling and during the
continuance of the leasehold were sold to the plain-
tiff herein, the actual conveyance taking place on April
10, 1920. The lease contained a provision that the
tenant could exercise an option of renewal for three
years upon giving notice to the landlord by registered
mail addressed to the landlord at liis residence
between April 1 and November 1, 1919. The tenant,
as appears by his testimony, did during that time give
both oral and written notice to one Sudbrink, plain-
tiff's agent, that he had exercised his option to renew
according to the provisions of the lease and upon
inquiry as to whether it was necessary to send fur-
ther notice by registered mail was informed that they
were aware of his intention to renew and that formal
notice by registered mail was not necessary. At the
25
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Appellate Tenn, First Department, February, 1921. [Vol. 114.
conclusion of the trial, the learned justice directed a
verdict in plaintiff's favor and we think erroneously.
It was admitted upon the trial that Sudbrink was
Ebling's agent, and the testimony discloses that such
agency was not a limited one but general so far as
these premises were concerned. He had entire charge
of them, collected the rents, superintended them
during all the time covered by defendant's lease. All
the checks were made to his order for payment of
rent. Although clearly the notice of an election to
renew must be given in strict accordance with the
requirements provided for in the lease, and the tenant
here had failed in their strict observance, nevertheless
the general agent under the circumstances and the
power vested in him by the owner had the right to
orally waive, or rather on behalf of his principal elect
not to treat the tenant's failure to give the required
notice as an indication that he did not desire a renewal.
United States Realty S Imp. Co. v. Swing, 172 N. Y.
Supp, 214, Although evidence given by tenant to the
effect that he was told by Sudbrink that notice by
registered mail would not be required and that he
could have the renewal as he requested, was denied by
the agent, we think it presented a question of fact for
the determination of the jury and the trial court was
without warrant in directing a verdict.
Final order reversed and new trial granted, with
thirty dollars costs to appellant to abide the event.
Guy and Lehmait, JJ., concur.
Final order reversed and new trial granted, with
thirty dollars costs to appellant to abide event.
Habbis v. Einhorn. 387
Misc.] Appellate Term, First Department, February, 1921.
AtaBebt Habbis, Respondent, v. Willum Einhobn,
Appellant.
(Supreme Court, Appellate Term, First Department, January Term
— Filed February, 1921.)
Sales — action for goods sold and delivered — retention of partial
deliyery — connterdaim — damages.
While a vendee who accepts, retains and uses a partial
delivery of goods due in a single delivery may be held for the
purchase price thereof he is also entitled to relief against the
vendor for damages because of delay or default in the delivery
of the balance of the goods.
An oral contract for the sale of luminette called for the
delivery of three pieces at once, and twenty-one pieces to be
shipped during the months of October and November, 1919,
upon plaintiff's receipt of same. Prior to the date when pay-
ment for the three pieces fell due, the plaintiff had received
a number of pieces from his consignor but none had been
delivered to defendant though he made frequent requests there-
for. Plaintiff's demand for payment for the three pieces was
refused because of his failure to deliver the remaining pieces
called for by the contract. In an action for goods sold and
delivered the defendant counterclaimed for the increased value
of the goods not delivered because in the meantime their market
price had risen. Held, that whether defendant suffered any
damages by reason of plaintiff's failure to deliver according to
the contract, was a question which should have been submitted
to the jury, and a judgment entered upon a verdict directed
in plaintiff's favor, after the dismissal of the counterclaim,
will be reversed and a new trial ordered.
Appeal by the defendant from a judgment of the
City Court of the city of New York, in favor of the
plaintiff, after dismissal of defendant's counterclaim
upon the direction of a verdict by the court.
L. 0. Rothschild, for appellant.
Marks & Marks (Henry Poarlman, of counsel), for
respondent.
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388 Harris v. Einhorn.
Appellate Term, First Department, February, 1921. [Vol. 114.
Wagner, J. Admitting the plaintiff 's cause of
action for goods sold and delivered, the defendant
counterclaimed for breach of contract on the part of
the plaintiff in failing to deliver the balance of the
merchandise. It appeared by stipulation made at the
inception of the trial that plaintiff and defendant
entered into an oral agreement on October 6, 1919,
whereby plaintiff agreed to sell, and defendant agreed
to purchase three pieces of luminette, to be delivered
at once, and twenty-one pieces to be shipped during
the months of October and November, upon plaintiff's
receipt of the same. Immediate delivery was made of
the three mentioned pieces, payment for which became
due seventy days after delivery, namely, December
16, 1919. Prior to the last mentioned date, though
plaintiff had received a number of pieces from his
consignor, none had been delivered to the defendant,
though the latter made frequent requests, plaintiff
making the false explanation that he had received
none.
Upon the trial plaintiff gave as a reason for his
failure to deliver that he feared defendant's credit
and desired to take no further risk.
On December 16, 1919, when the payment for the
delivery of the three pieces in suit fell due, payment
was demanded, met by defendant's refusal to pay
because of plaintiff's failure to keep his engagement
to deliver the remaining pieces provided for by the
contract. In the meantime the market, defendant
claimed, for this commodity had risen in price, the
increased value thereof forming the foundation for
the counterclaim interposed.
It appears from an examination of the colloquy
ensuing between court and counsel at the termination
of the trial, that the theory upon which the learned
court below dismissed the counterclaim and directed a
Digitized by
Google
Harris v. Einhorn. 389
Misc.] Appellate Term, First Department, February, 1921.
judgment in plaintiff's favor, was that although the
plaintiff had broken his contract by failing to make
deliveries as agreed before any breach by the defend-
ant had taken place, the defendant had not, prior to
December sixteenth, elected to treat the failure as a
breach, and that his default on that date was fatal to
any claim of breach on plaintiff's part by way of coun-
terclaim. Analyzing the logic of this view it reduces
itself to the following proposition: The plaintiff^s
failure to deliver goods as per contract was not a
breach, because the defendant did not elect to treat it
as a breach, but defendant's failure to pay for goods
already delivered was such a breach as to deprive
defendant of his cause of action which had arisen,
though plaintiff had not elected to treat it as a breach.
It is undisputed that at the time the defendant
defaulted in payment, the plaintiff had already com-
mitted six respective breaches of his contract to
deliver the goods as received by him. Repeated
requests for the delivery of the promised goods were
made, with the response of inability of compliance. It
is difficult to perceive how an election to treat the non-
delivery as a breach, prior to its discovery by defend-
ant, as the learned court held, was incumbent upon
defendant, was possible under the circumstances.
Consequently no reservation of rights was made, and
defendant was relieved of any duty to rescind or take
affirmative action with respect to such breaches until
knowledge of plaintiff's deliberate act of deception in
misleading the defendant had been brought to his
attention.
When the date of payment for the prior lot had
arrived and discovery of plaintiff's deception as to his
contractual engagement had been made, payment was
declined and demand made for damages suffered by
reason of failure to deliver the remaining pieces.
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390 Harris v. Einhorn.
Appellate Tenn, First Department, February, 1921. [Vol. 114.
Therefore, both of the parties stood in identical posi-
tions. Both had breached their contract. Neither took
any step to rescind it by reason of the other ^s breach.
Under the circumstances the defendant clearly was
entitled to counterclaim his damages, if he suffered
any, because of such breach against the purchase price
of the goods which he had received, and the dismissal
of the counterclaim and a direction for plaintiff was,
therefore, error.
It has been well settled that a vendee who accepts,
retains and uses a partial delivery of goods due in a
single delivery, may be held for the purchase price
thereof, and on the other hand may have relief against
the vendor for damages because of delay or default in
the delivery of the balance of the goods. Deeves S
Sons V. Manhattcm Life Insurcmce Co., 195 N. Y.
324; Avery v. Willson, 81 id. 341; Brady v. Cassidy,
145 id. 171.
Tracing the logic of the rule to the situation here
presented, we find it equally applicable, and so it has
been recently held in Ooodyear Tire <& Rvbher Co. v.
Vulcmized Products Co., 228 N. Y. 118, 125. There the
goods in question were sold on terms of thirty days;
the vendor delayed in delivery, and finally ceased to de-
liver. The last delivery was made on June twenty-fif tii,
which would have made payment due on July twenty-
fifth. The defendant did not refuse to make payment
or take a stand of any kind regarding plaintiff *8
breach until some time in October. The court, never-
theless, held that the defendant was entitled to recover
on its counterclaim for plaintiff's failure to deliver as
per contract, saying: **As has already been stated,
the respondent finally refused to pay the purchase
price due for goods actually delivered unless its claim
for damages was recognized and assurances given of
future deliveries. It did not attempt to cancel the
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Habbis v. Einhorn. 391
Mise.] Appellate Term, First Department, February, 1921.
contract because of past defaults on the part of the
vendor and we do not think that the record sustains
this refusal to pay the purchase price or any part
thereof * * *. Upon this refusal to pay, the vendor
rescinded the contract and refused to make further
deliveries and the question is whether these acts of
the respective parties have in any way affected
respondent's right to damages because of failure to
make deliveries due before the rescission. We do not
think that they have. Assuming that the vendor's
prior and existing default did not prevent it from
treating respondent's refusal to pay as a breach war-
ranting rescission, we do not see that this relieved it
from the liability which had already accrued for failure
to make deliveries long past due. The very rule which
entitles appellant to claim the purchase price for par-
tial deliveries made by its assignor, entitles respond-
ent to assert the right which accrued at the same time
to offset damages for failure to deliver the balance of
the goods and we do not think that this right was lost
by its subsequent conduct."
This case is direct authority for appellant^s posi-
tion here. In both the vendor failed to deliver as
agreed. In both the purchaser failed to make pay-
ments for deliveries when due. In fact the validity of
the contention is emphasized by comparison in the
respective laxity and promptness of the claims made
in the two cases. See, also, McDowell v. Starobin El.
Supply Co., 190 App. Div. 676.
The rule enunciated in Hadfield v. Colter, 188 App.
Div. 563, relied upon by the respondent, relates to an
anticipatory breach of a contract which was kept
alive by subsequent acceptances of later deliveries,
and insistent refusals to consent to a proposition oif
cancellation. That clearly distinguishes it from the
present case. Upon the evidence as adduced a ques-
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392 Carroll v. Harris.
Appellate Term, First Department, February, 1921. [Vol. 114.
tion of fact was presented as to whether defendant
suffered any damages because of plaintiff's failure to
deliver according to the contract, which question of
fact should have been submitted to the jury.
It follows, therefore, that the judgment must be
reversed and a new trial ordered, with thirty dollars
costs to the appellant to abide the event.
Guy and Lehman, JJ., concur.
Judgment reversed and new trial ordered, with
thirty dollars costs to appellant to abide event.
Thomas P. Carroll et al., Respondents, v. David
Harris, etc., Appellant.
(Supreme Court, Appellate Term, First Department, January
Term — Filed February, 1921.)
Ships and shipping — discharge of cargo — lease of off-shore
berth — lighters — eyidenoe — contracts — cnstom and usage.
The hiring of an off-shore berth on a North river pier means
that the ship discharges its cargo off the side into lighters or
scows.
One side of a North river pier leased by defendant for an
off-shore berth was occupied by one of its steamships for five
days and the stipulated per diem rate paid. The lighters
remained in the berth five days longer. In an action to recover
an additional charge at the same per diem rate a witness for
plaintiff on his direct examination was asked : " What is the
custom with regard to an off-shore berth, are lighters con-
sidered part of the ship for the transaction?" to which the
witness answered " in this special case, yes." Held, that
defendant was entitled to show whether it had control over the
lighters after its steamship had left the pier, or whether it
had any connection with the owner of the cargo, and that the
exclusion of such testimony was error for which a judgmeut
in favor of plaintiff will be reversed and a new trial ordered.
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CabrolL v. Harbis<
Misc.] Appellate Term, First Department, Febraary,
Parties who contract on a subject matter conce
known usages prevail, incorporate such usages by
into their agreement, if nothing is said to the con
Appeal by defendant from judgment of tl
ipal Court of the city of New York, borougl
hattan, fifth district, in favor of the plaintiffi
Robert S. Mullen, for appellant.
Clarke & Clarke (Richard H. Clarke, of cou
respondents.
Guy, J. Plaintiffs, lessees of pier 2, Noi
alleged in their complaint that defendant h(
and during the period from February 21 to
1920, leased and hired from the plaintiffs for
and wharfing purposes the south side of th(
the rental of $100 a day, and the defendant i
occupied the pier for docking and wharfage ]
for the period mentioned for which he agree*
plaintiffs $100 a day; that defendant paid
account of the rental, leaving a balance of ^
and owing plaintiffs.
Plaintiff put in evidence an agreement in
dated February 21, 1920, between '' Cor
Transportation Co. [the name under which d(
carried on business] at 41 Liberty Street, N(
City, s/s Lake Beacon hereinafter known as i
pant and the Carroll, Hagon & Carroll of Ne
lessees and mortgagees of pier #2 North Riv<
inafter known as the landlord. It is agreec
lows : — to lease the south side of pier #2, Nor
for an off shore berth without dock space, ^
to commence today at 7 a, m. at the rate of J
day.^'
The hiring of an off-shore berth meant thai
discharged its cargo off the side into lighters
394 Cakroll v. Habbis.
Appellate Tenn, First Department, February, 1921. [Vol. 114.
The steamship Beacon occupied the berth about five
days, for which a bill for $500 was sent to defendant,
and that amount was paid by defendant. The lighters
remained in the berth or slip five days longer, how-
ever, for which a bill for an additional $500 was ren-
dered by plaintiffs to defendant, which defendant
refused to pay; and it was to recover for this addi-
tional charge that the action was brought and for
which the court awarded a judgment in plaintiffs*
favor.
Despite the fact that plaintiff's claim as pleaded was
that the defendant used and occupied the pier for
docking and wharfage purposes not only for the time
that the steamship Beacon was in the slip but also for
the five additional days during which the lighters
remained in the slip after the departure of the Beacon,
the trial judge refused to allow the defendant to show
whether the defendant had any control over the light-
ers remaining at the pier after the steamship left, or
whether the defendant had any connection with the
owner of the cargo. The evidence thus offered by
defendant was relevant to the issue whether the
defendant, or the Beacon, had occupied the berth as
pleaded, and its exclusion was erroneous.
On the back of the written agreement are certain
printed conditions made a part of the contract, and
one of these conditions reads: ** Berth is not vacated
until vessel is out of slip, all merchandise removed
from and pier cleaned. '^ This clause is susceptible
of the construction, which was evidently given it by
the trial judge, that although none of the cargo was
put on the pier, if the lighters remained in the slip
after the departure of the steamship, the occupation
of the lighters might be regarded as a continuance of
the occupation by the steamship. And plaintiffs'
counsel on the direct examination of their witness
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Kahrs v. Eygabroad. 395
Misc.] Appellate Term, First Department, Febraary, 1921.
Donohue asked that witness ** What is the custom with
regard to an off-shore berth, are lighters considered
part of the ship for the transaction!** to which the
witness answered ** in this special case, yes; '* not-
withstanding which defendant was not permitted to
show the custom with reference to lighters occupying
docking space. Having thus brought out the custom,
as claimed, the respondents evidently conceded that
the contract was ambiguous. Under the circum-
stances the appellant should have been permitted to
show what he claimed to be the custom, and it was
error to exclude that evidence. Parties who contract
on a subject matter concerning which known usages
prevail incorporate such usages by implication into
their agreement if nothing is said to the contrary.
Hostetter v. Park, 137 U. S. 30. In commercial trans-
actions incidents may be annexed to the written agree-
ment by usage or custom. Williston Cont. § 652.
McCooK, J., concurs in result.
Judgment reversed and a new trial ordered, with
thirty dollars costs to appellant to abide the event.
Herman H. Kahrs, Landlord, Appellant, v. Charles
L. Eygabroad, Tenant, Respondent
(Supreme Court, Appellate Term, First Department, January
Term — Filed February, 1921.)
Summary proceedings — Btatntes — landlord and tenant — trial —
pleading — evidence — when iinal order reversed and new
trial granted.
A summary proceeding under the statute (Laws of 1929,
chap. 942) was instituted upon a landlord's petition alleging
that he was in good faith seeking to recover possession of an
Digiti
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396 Kahrs v. Eygabroad.
Appellate Term, First Department, February, 1921. [Vol. 114.
apartment occupied by the defendant tenant in petitioner's
ten-family apartment house, for the immediate and personal
use of himself and family, as a dwelling. The answer was a
general denial, and the landlord on his direct examination was
asked : " Do you intend to occupy for yourself as a dwelling
place for yourself and family, for usual purposes, the apart-
ment now occupied by " the defendant tenant. An objection by
the tenant's counsel that the answer called for a conclusion
was sustained and exception taken. The court correctly charged
that the good faith of the landlord in the matter was a ques-
tion for the jury. Held, that the exclusion of the testimony
sought to be elicited by the question was error for which a
final order in favor of the tenant entered upon the verdict
will be reversed and a new trial granted.
Appeal by the plaintiff, landlord, from a final order
of the Municipal Court of the city of New York,
borough of The Bronx, second district, in favor of the
tenant, entered upon the verdict of a jury.
Martin GoUubier, for appellant.
Amstein & Levine (Sidney S. Levine, of counsel),
for respondent.
Wagner, J. The landlord instituted the summary
proceeding under chapter 942 of the recently enacted
rent laws, alleging that as owner of the premises in
question, a ten-family apartment house, he was seek-
ing in good faith to recover possession of the apart-
ment occupied therein by the defendant tenant for the
immediate and personal use of himself and family as
a dwelling. The tenant answered said petition by the
interposition of a general denial. After a somewhat
extended trial before the court and jury, the latter
returned a verdict in the tenant's favor resulting in a
dismissal of the petition upon the merits and the
denial of the motion made to set the verdict aside.
The test by which applications of this character
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Kahrs v. Eygabroad. 397
Misc.] Appellate Term, First Department, February, 1921.
under chapter 942 of the Laws of 1920 are to be gov-
erned is evident from an examination of the phrase-
ology the legislature saw fit to employ. Good faith on
the part of the landlord is the cornerstone upon which
the whole provision rests. Actual and bona fide intent
to make such use of the premises as he alleges in his
petition following the language of the statute is the
condition precedent upon which the right to the relief
afforded by it depends. Otherwise its salutary effect
could at will be nullified and the underlying purpose
which prompted its passage entirely thwarted. Not
only must his petition allege bnt the proof must show
the good faith animating him in seeking to obtain the
use of the property for personal purposes.
In the present case, the landlord was asked upon
his examination: '' Do you intend to occupy for your-
self as a dwelling place for yourself and family, for
usual purposes, the apartment now occupied by Mrs.
Eygabroad! " Upon the ground that the answer
called for a conclusion of the mtness, the tenant's
counsel's objection was sustained to which timely
exception was taken. It is urged upon us on this
appeal, and we are convinced by the authorities that
the exclusion of this testimony constituted error
requiring a reversal of the judgment.
It is true that intent is usually to be judged by the
light of surrounding facts and circumstances, for the
reason that they afford a satisfactory test which is
known and capable of consideration by the triers of
fact. But as was aptly stated in Cortland County v.
Herkimer County, 44 N. Y. 26: *' here the witness
speaks of an intent which may be at variance with
the surrounding facts and circumstances, and of
which none can know but himself.'' It has repeat-
edly been held since the decision in Seymour v.
Wilson, 14 N. Y. 567, that the motive with which an
Digiti
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398 Kahbs v. Eygabboad.
Appellate Tenn, First Department, Febraary, 1921. [Vol. 114.
act was done may be inquired into by asking of the
party perpetrating the act, and that the real activating
motive may be stated as a fact and considered in con-
nection with the other evidence. Pope v. Hart, 36
Barb. 636; Dillon v. Anderson, 43 N. Y. 236; Pritchard
V. Hirt, 39 Hun, 380. We think the following quota-
tion from the opinion of the court in More v. Deyoe,
22 Hun, 208, 223, is a succinct declaration of the rule :
** But where the act is equivocal in character, and the
intent is directly in issue, it may be ascertained by
direct questions, as was sought to be done in this case.
Not that the answer would be absolutely conclusive
but it would be an item of admissible evidence.'^
Since the jury were rightly instructed that the good
faith of the landlord as to the use of the premises for
himself and family was a question of fact for them to
determine, it would seem clear that his intention in
that regard constituted a material and important
factor for their consideration. We express no view
in that respect of an answer by the plaintiff to the
question propounded. Both principle and authority,
however, compel us to hold that an answer to such
question should have been allowed by the learned trial
justice, and for this error of exclusion we direct a
new trial.
Final order and judgment reversed and new trial
granted, with thirty dollars costs to appellant to abide
the event.
Guy and McCook, JJ., concur.
Final order and judgment reversed and new trial
granted, with thirty dollars costs to appellant to abide
event
Digiti
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Harris v. Eclipse Light Co. 399
Misc.] Appellate Term, First Department, Februaryy 1921.
Lawrence S. Harris, Eespondent, v. Ecupsb Light
Company, Appellant. •
(Supreme Court, Appellate Term, First Department, January
Term — Filed February, 1921.)
Trial— Jury— false answer of Juror as to qualiflcatlons — affi-
davits — motion to set aside verdict granted.
To permit one to sit as a juror who gave a false answer
to a material question, is a fraud upon the court and the
parties, and an order denying a motion to set aside the verdict
on the ground of misconduct of said juror will be reversed
and the motion granted.
Upon motion to set aside a verdict in favor of plaintiff, for
misconduct of a juror in giving a false answer to the question
whether he knew the defendant or any of its ofScers, put to
him before he was accepted as a juror, the principal moving
affidavits tended to establish that after the verdict said juror
in the presence of several persons admitted that he did know
the defendant and was prejudiced against it, and that he had
gratified this prejudice by influencing his fellow jurors in
plaintiff's favor. All this, together with other matters stated
in the moving affidavits, was denied by the juror in his answer-
ing affidavit. Held, that an order denying a motion to set aside
the verdict will be reversed and a motion granted in the
interests of justice.
Appeal by defendant from an order of the City
Court of the city of New York, denying its motion to
set aside verdict in favor of plaintiff on the ground
of misconduct of a juror. The motion was heard by
the same judge who tried the case. The judgment
upon the verdict has been previously affirmed by this
court.
Horace London (Charles L. Hoffman, of counsel),
for appellant.
George F. Mattuck (David C. Myers and Joseph H.
Kutner, of counsel), for respondent.
Digiti
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400 Harris v. Eclipse Light Co.
Appellate Term, First Department, February, 1921. [Vol. 114.
McCooK, J. Upon the trial of the action, which was
to recover for salesman's commissions alleged to be
due plaintiff from defendant, the jurors were asked
separately, among other questions, whether they knew
the defendant company or its officers, naming them.
The negative answers received influenced counsel for
defendant in his selections. Among the jurors so
chosen was one Leon, a salesman, -whose alleged mis-
conduct is the subject of the motion to set aside this
judgment.
By his answering papers, respondent establishes the
fact that in the deliberations of the jury Leon had no
greater influence with his associates than any other
juror; that he showed no prejudice; and, indeed, that
very little discussion was required because the jurors
all felt that the defendant's witnesses were untruthful
and made for that reason a quick decision in favor of
plaintiff.
Respondent contends that this alone disposes of the
appeal. His argument is that if Leon did not influence
the verdict the result could not have been affected by
any misconduct on his part and should not be dis-
turbed. This does not follow. An unprejudiced juror
might well have disagreed with his associates ; he might
even have persuaded them all to his w^ay of thinking.
It therefore becomes necessary to consider the grounds
assigned for granting this motion.
The gist of the charge is that after the verdict Leon
made in the presence of several persons admissions to
the effect that he did know the defendant in the action
and was prejudiced against it, and that he had grat-
ified this prejudice at the expense of defendant upon
the trial in question. If these charges are true, they
mean that he falsely denied in answer to questions by
defendant's counsel his acquaintance with the defend-
ant concern and its officers, that he was disqualified
DigitHzed by VjOOQIC
Harris v. Eclipse Light Co. 401
Misc.] Appellate Term, First Department, February, 1&21.
to sit on the jury and that truthfnl answers wonld
have disclosed the disqualifying facts, and he would
have been excused.
Appellant's principal aflSdavits tend to establish
Leon's admissions; they are by three persons, one of
whom is related to an oflScer of defendant, another was
formerly an employee of defendant, and the third, so
far as appears, is disinterested. Other affidavits tend
to establish that Leon formerly called at the office of
the defendant, asked to See and saw one of its officers,
applied for a position with defendant, giving false
references, and attempted at other times (unsuccess-
fully) to sell it goods. These particular affidavits are
all by interested witnesses.
The only answering affidavit, other than those of
the jurors, is by Leon himself. He makes denial that
before the trial he knew the defendant or any of its
officers, that he ever went to their office, attempted to
enter their employ or sell them goods, and he denies
further that after the trial he told anybody he had
kno^vn them or was prejudiced against them or had
gratified this prejudice by influencing his associates
on the jury in favor of the plaintiff. He concedes that
about the time alleged he was at the office of the New
Home Gas and Electric Supply Company, Inc., where
the other admissions are charged to have been made,
having sold it a bill of goods, that he was then asked
if he was selling any goods to the defendant and there-
upon stated he had been a juror in a case where de-
fendant was being sued.
This makes the issue clear; either Leon did admit
his prejudice and was guilty of the misconduct alleged,
or else an innocent statement by him in the presence
of a relative of defendant and two other persons, one
of them disinterested, was seized upon, elaborated and
made the occasion of a conspiracy. For the latter
26
Digiti
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402 Harris v. Ecmpse Light Co.
Appellate Tenn, First Department, February, 1921. [Vol. 114.
alternative, it wonld be necessary further to believe
that two employees of the defendant and one of its
officers, none of them present at the trial, joined in a
conspiracy to establish certain other facts not true.
Without deciding where the truth lies, we are of
opinon that this is a case where the interests of jus-
tice require a new trial.
Eecent authorities emphasize the requirement that
triers of fact should be beyond suspicion. Ament v.
Schubert Piano Co., 172 App. Div» 423; Robinson v.
Ball, 187 id. 799. It is desirable in the formation of a
jury that every legal right shall be preserved to a
party, to the end that the verdict when recorded shall
be understood to be the result of an unbiased judgment
of the appeal. Every suitor is entitled to a fair trial
before unprejudiced jurors, and if a juror is permitted
to sit on account of a false answer given by him to a
material question, it is fraud upon the court and the
parties, and the verdict may well be set aside. Slater
V. United Traction Co., 172 App. Div. 404. See, also,
McGarry v. City of ^Buffalo, 53 N. T. St. Repr. 882;
Fealy v. Bull, 11 App. Div. 468; Maiter of Nuns, 176
N. Y. Supp. 858.
Order appealed from reversed, with ten dollars costs
and disbursements, defendant's motion to set aside
verdict granted, judgment vacated and a new trial
ordered.
Guy and Wagner, JJ., concur.
Order reversed, with ten dollars costs and disburse-
ments*
Digiti
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Weinman v. Tbainor. 403
Misc.] Appellate Term, First Department, February, 1921.
Emma Weinman, Landlord, Respondent, v. Owen
Trainor and Another, Tenants, Appellants.
(Supreme Court, Appellate Term, First Department, January
Term — FUed February, 1921.)
Bmnmary proceedings — when will not lie against tenant as a
holdover — landlord and tenant — lease.
The agreement of a tenant that in case of a sale of the
premises he will vacate them on thirty days' notice, is a condi-
tion and not a conditional limitation of the lease.
While the refusal of a tenant to vacate the premises on the
day set by such a notice entitle? the landlord to bring an action
in ejectment or for breach of covenant, the tenant is not a
holdover until his lease expires, and summary proceedings
will not lie against him as a holdover.
Appeal by tenants from a judgment of the Municipal
Court of the city of New York, borough of Manhattan,
seventh district.
House, Grossman & Vorhaus (Henry E. Cohen, of
counsel), for appellants.
Philip J. Sinnott, for respondent.
Per Curiam. The tenant is in possession of the
premises in question under a written lease which con-
tains the following provision : ** Should the said prem-
ises be sold the tenant agrees to vacate same to any
time on 30 days notice.'* The premises were sold and
a notice was given '* that in accordance with the terms
of the lease must ask you to vacate house 619 West
142 Street within 30 days from June 1.'*
The tenant failed to vacate on the day set and this
summary proceeding was brought to dispossess the
tenant as a holdover. The court below decided that
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404 LOEW V, OSTREICHER BrOS.
Supreme Court, February, 1921. [Vol. 114.
the tenancy had expired and awarded the possession
of the premises to the landlord.
This conclusion we think was error. The provision
of the lease under which the landlord claims possession
is a condition of the lease and not a conditional limi-
tation. The term of the lease did not expire hy the
giving of the thirty days ' notice. By refusing to vacate
the tenant has breached a covenant which gives the
landlord the right to re-enter or a suit for damages.
The tenant is not a holdover until his lease has
expired. Therefore sunmiary proceedings did not lie.
Ee-entry can only be accomplished by an action in
ejectment.
Judgment appealed from reversed, with thirty dol-»
lars costs and petition dismissed.
Present: Guy, Wagner and McCook, JJ.
Judgment reversed, with thirty dollars costs.
IVIax Loew, Plaintiff, v. Ostreicher Bros., a Corpora-
tion, Defendant.
(Supreme Court, Bronx Special Term, February, 1921.)
Pleading — when motion for order reaniring plaintiff to serve an
amended complaint granted — allegations contained in com-
plaint — damages — actions.
A plaintiff taking the ground that his complaint states but
a single cause of action should plead the facts in such manner
as to enable the defendant to hold him to that position through-
out the litigation.
Where as against the contention of the defendant that the
facts alleged in the complaint may readily be made the basis
of an action either for an assault, false imprisonment or mali-
cious prosecution, the plaintiff maintains that the allegations
of the complaint constitute but a single cause of action grow-
Digiti
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LOEW V, OSTREICHER BrOS.
Misc.] Supreme Court, February, 1921.
ing out of a series of occurrences having relation
continuous transaction with special circumstances
or aggravation as to each step in the progress of
defendant's motion for an order requiring plaintiff t
amended complaint separately stating and numberin]
constituting the various causes of action which i
claims to be embraced in the complaint, will be gran i
within the time fixed by the order to be entered plaii
lates in writing that he intends and desires to sti I
cause of action for false arrest and imprisonmei ;
should specify which allegations are pleaded in :
which in aggravation of damages.
Motion by the defendant to require the pla i
serve an amended complaint wherein he sh i
arately state and number the facts constitu
various causes of action now embraced in II
plaint herein.
Louis W. Osterweis, for motion.
William C. Scofield, Jr., opposed.
GTiEGERicH, J. The defendant moves for a
requiring the plaintiff to serve an amended cc
wherein he shall separately state and number 1
constituting the various causes of action claim
embraced in the complaint. The complaint
stance alleges that while the plaintiff was lav
and upon the premises occupied by the defend
merchant tailor in the borough of Manhatt;
York city, the agents and servants of the de
with the knowledge and consent of said def em
in the course of its business, without the
cause or provocation, threw or attempted to t
plaintiff from said store and then did seize i
the plaintiff back into the store and about t]
ises; that at such times and during the ac
related, the agents and servants of the defend
406 LOEW V. OSTREICHBR BrOS.
Supreme Court, February, 1921. [Vol.114.
in the course of such assaulting and employment,
pulled the plaintiff back into the store and surrounded
him and imprisoned and detained him in the said store
and premises and caused his arrest by a police officer;
that the plaintiff was forced by the defendant, its
agents and servants, to accompany such police officer
to a public station house, where he was charged with
the crime of malicious mischief, and in which he was
imprisoned until he was arraigned before a police
magistrate, and that upon being arraigned before the
magistrate the plaintiff was again maliciously and
without probable cause falsely charged with the crime
of malicious mischief, but after a hearing the charge
was dismissed and the plaintiff was discharged from
custody. The complaint further alleges that the
malicious acts complained of were contrary to the laws
and customs of this state and in violation of the same
and against the will of the plaintiff, whereby he was
not only greatly hurt, humiliated and greatly dis-
tressed in mind and body, but injured in credit, hin-
dered in business and suffered a nervous breakdown,
by reason whereof and whereby the plaintiff alleges
he sustained damages in the sum of $25,000. The com-
plaint is divided into paragraphs, but no words or
figures are used to indicate whether one or more causes
of action were intended to be alleged. The defendant
insists that the facts set forth in the complaint may
readily be made the basis of an action either for an
assault, false imprisonment or malicious prosecution.
The plaintiff, on the other hand, maintains that the
several statements contained in the complaint consti-
tute but a single cause of action growing out of a series
of occurrences and have relation to but one continuous
transaction alleged, with special circumstances of
injury or aggravation as to each step in the progress
of the affair. In Sheldon v. Lake, 9 Abb. Pr. N. S. 306,
Digiti
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LOBW V. OSTREICHEB BrOS. 407
Mise.] Supreme Court, February, 1921.
the complaint alleged that the defendant assaulted the
plaintiff, dragged him violently through the public
streets, imprisoned him in the custody of the sheriff
and restrained him of his liberty without probable or
reasonable cause, whereby he was wounded, injured
in credit and hindered in business. The defendant
moved to strike out parts of the complaint as irrele-
vant and redundant, or if more than one cause of
action was intended to be set up, that the complaint be
made more definite and certain and causes of action
be separately stated and distinctly numbered, and it
wa« held that the complaint stated but one cause of
action, but that the allegation that the acts complained
of were in violation of law, not being a traversible
allegation, was irrelevant and redundant and should
be stricken out. In that case, however, it was con-
ceded by the plaintiff *s attorney on the motion that
the action was for false imprisonment and that alone.
In Tyson v. Bauland Co., 68 App. Div. 310, cited by the
defendant, the complaint combined in a single count
two causes of action, one for false imprisonment and
another for malicious prosecution. The defendant
failed to demur to the complaint, but at the commence-
ment of the trial made a motion to require the plaintiff
to elect which cause of action she intended to pursue.
The court in the course of its opinion at pages 312
and 313 said: ** The complaint contains but a single
count, which might be either for false imprisonment
or malicious prosecution. It was treated on the trial
as a complaint for both causes of action. • • • The
two causes of action, however, could not be combined
in a single count (Code Civ. Pro. § 483), although they
may be united in the same complaint. Marks v. Town-
send, 97 N. Y. 590, and cases cited. By not demurring
the appellant must be deemed to have waived the
defect, and was probably not entitled to the election at
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408 LOBW V. OSTREICHER BrOS.
Supreme Court, February, 1921. [Vol.114.
the commencement of the trial as a strict matter of
right. As it must be assumed from the record that
both causes of action were submitted to the jury and
the verdict may have been founded on either, the judg-
ment appealed from cannot be sustained unless the
proof established both causes of action.'' In Daly v.
Wolaneck, 29 Misc. Rep. 162, I held that where the
nature of the action is conceded, allegations of assault
and also of false imprisonment may be joined in the
statement of one cause of action, but where the com-
plaint does not disclose the theory of the action the
plaintiff may be compelled to make his complaint more
definite and certain by separately stating the causes
of action and by numbering them, unless the plaintiff
stipulates that he intends and desires to state but a
single cause of action specifying which allegations
are set forth in chief and which in aggravation. The
plaintiff's brief in the case at bar states that the action
was and is one for false arrest and imprisonment.
The defendant advances the argument that such con-
cession is not made in a manner which could work an
estoppel and that a fonpal order of the character indi-
cated in Daly v. Wolaneck, supra, should be entered
so that the plaintiff may not upon the trial change his
position and attempt to have submitted to the jury an
issue other than one of false arrest and imprisonment.
In Fay v. Marx, 2 Bradbury PL & Pr. 81, the complaint
contained allegations showing causes of action for
both negligence and nuisance, but in so uncertain a
manner as to leave it in doubt whether the plaintiff
sought to recover on one or both grounds. The defend-
ant moved to compel the plaintiff to separately state
and number his causes of action, and on the hearing
of such motion counsel for the plaintiff stated that
only one cause of action was intended, and that for
nuisance, and it was held that the plaintiff should be
Digiti
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Fletcher v. Manhattan Life Ins. Co. 409
Misc.] Supreme Court, February, 1921.
required to amend his complaint accordingly, as such
statement of the plaintiff *s counsel on the motion
could not constitute an election. Although the plain-
tiff takes the ground that but a single cause of action
is stated, he should, nevertheless, do it in such a man-
ner as to enable the defendant to hold him to that
position throughout the litigation. Blake v. Barnes,
9 N. Y. Supp. 933; 30 N. T. St. Repr. 299. The motion
should therefore be granted unless within a time to be
fixed in the order to be entered hereon the plaintiff
stipulate in writing that he intends and desires to
state but a single cause of action, to wit, that of false
arrest and imprisonment, and he should specify which
allegations are set forth in chief and which in aggra-
vation. Motion disposed of as above indicated, mth
ten dollars costs to the defendant to abide the event of
the action.
Ordered accordingly.
George H. Fletcher and Another, Plaintiffs, v. The
Manhattan Life Insurance Company, Defendant.
(Supreme Court, New York Special Term, February, 1921.)
Pleading — foreclosare — answer — Statute of Frauds — account-
ing— when motion for judgment on the pleadings denied.
Prior to the sale on foreclosure of a mortgage in which
plaintiffs and defendant were participating owners, it was
orally agreed that plaintiffs would refrain from bidding at the
sale and that defendant should become the purchaser of the
premises at a price not in excess of the amount due on the
mortgage, together with taxes and expenses. Defendant, who
bought in the premises at the sale, refused to carry out the
agreement and held the property as its own for a number of
years, collecting the income, and without notice to plaintiffs,
conveyed the property and appropriated the proceeds of sale
Digiti
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410 Fletcheb v. Manhattan Life Ins. Co.
Supreme Court, February, 1921. [Vol.114.
to its own use. In an action alleging the facts and demanding
judgment declaring defendant a trustee for plaintiffs and
requiring defendant to account for the proceeds of the sale in
excess of the amount adjudged to be due it under the judgment
of foreclosure and sale, the answer, besides a general denial,
pleaded the Statute of Frauds as a defense. Held, that the
facts pleaded, if proven, would make out a prima facie case,
and defendant's motion for judgment on the pleadings will be
denied.
Motion for judgment on the pleadings.
Fletcher, McCutchin & Brown, for plaintiff.
Henry W. Kennedy (D. Theodore Kelly, of counsel),
for defendant.
Dblehanty, J. Defendant moves for judgment on
the pleadings. The complaint states that the parties
hereto were participating owners in a mortgage for
$240,000 on certain premises in the city of New York
of the value of not less than $250,000; that in an action
for the foreclosure of said mortgage it was adjudged
that the defendant was entitled to $193,499.77 as its
interest in said mortgage and that the plaintiffs were
entitled to the sum of $39,019.59; that prior to the
foreclosure sale it was agreed between the defendant
and the plaintiffs that the plaintiffs would abstain
from bidding at said foreclosure sale and that the
defendant would purchase the premises at a price not
in excess of the amount due it, together with taxes and
exDenses. and would thereafter convev the Dremises to
Digiti
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Fletcher v. Manhattan Life Ins. Co, 41 1
Misc.] Supreme Court, February, 1921.
own, held the same for a number of years, collected
the income therefrom, and that subsequently without
notice to the plaintiffs sold the same and appropriated
the proceeds of the sale to its own use. Judgment is
demanded declaring the defendant to be a trustee for
the plaintiffs as to the premises in question and
requiring the defendant to account for the income of
the sale in excess of the amount due it under the judg-
ment of foreclosure and sale. The answer contains
a general denial and an affirmative defense to the
effect that the agreement alleged in the complaint is
void under the Statute of Frauds because not in writ-
ing. The sole question for determination is whether
the Statute of Frauds constitutes a defense. It is well
established that an oral agreement to convey an estate
or interest in real property other than a lease for a
term not exceeding one year is nugatory and unen-
f orcible. Wooley v. Stewart, 222 N. Y. 347, 350. How-
ever, where a party has an existing interest in a mort-
gage upon real property and enters into an oral agree-
ment with others for the protection of his rights in
connection therewith, courts of equity will recognize
such agreement as binding in order to prevent the per-
petration of a fraud. Ryan v. Dox, 34 N. T. 307;
Canda v. Totten, 157 id. 281; Congregation Kehal
Adath V. Universal Building <& Construction Co., 134
App. Div. 368. InWheeler v. Reynolds, 66N.T. 227,
236, 237, the court says: ** It is a mistake to suppose
that parol agreements relating to lands are any more
valid in equity than at law. They are always and every-
where invalid. But courts of equity have general juris-
diction to relieve against frauds, and where a parol
agreement relating to lands has been so far partly
performed that it would be a fraud upon the party
doing the acts, unless the agreement should be per-
formed by the other party, the court will relieve
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412 Fletcher v. Manhattan Life Ins. Co.
Supreme Court, February, 1921. [Vol.114.
against the fraud and apply the remedy by enforcing
the agreement. It is not the parol agreement which
lies at the foundation of the jurisdiction in such a
case, but the fraud. • • • But in cases of fraud
courts of equity will sometimes imply a trust and will
treat the perpetrator of the fraud as a trustee
ex maleficio, for the purpose of administering a remedy
against the fraud. '^ In a somewhat similar situation
Justice Houghton, writing for the Appellate Division
in this department, said in Congregation Kehal Adath
V. Universal Building & Construction Co., 134 App.
Div. 368, 370: *' I understand the rule to be that where
the owner of property about to be sold at judicial sale
enters into an agreement with his mortgagee for a val-
uable consideration and a promise not to bid or pro-
cure bidders, that the mortgagee shall bid off the prop-
erty and hold it for him, the mortgagee, in an action in
equity to compel performance, cannot take advantage
of the Statute of Frauds and escape because his con-
tract was not in writing. Such is the distinct holding
in Ryan v. Dox (34 N. Y. 307). While that decision
has been subject to some attack it has never been over-
thrown and was recognized in Canda v. Totten (157
N. T. 281) and in Mackall v. Olcott (93 App. Div. 282)
as still good law. It is based upon the proposition that
the party obtaining title obtained it through fraud and
that equity will not permit the Statute of Frauds to be
made a shield for fraudulent acts.'' I think the
facts alleged in the complaint if proven make out a
prima facie case, and, therefore, the motion for judg-
ment on the pleadings made by the defendant must be
denied.
Motion denied, with ten dollars costs.
Digiti
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Greaves v. Am. Inst, for Scientific Research. 413
Misc.] Supreme Court, February, 1921.
R. Henry Greaves, Plaintiff, v. American Institute
FOR Scientific Research, Defendant.
(Supreme Court, New York Trial Term, February, 1921.)
Oorporations — membership — lack of power of officer to contract
for life employment.
While an agreement made by an agent of a corporation is
not to be condemned, yet in the absence of an express authori-
zation of or a ratification of the agent's acts, the agreement
cannot be upheld.
Certain funds of a membership corporation were awarded
to its secretary and treasurer for disbursement under the direc-
tion of the trustees, to pay for psychical research work and
salaries of employees in connection therewith. Held, that the
secretary and treasurer had no power to make a contract of
employment with plaintiff as offtce manager for the term of
his life.
Such a contract is unenforcible and where, not only from
the oral testimony but from letters written by plaintiff to the
secretary and others, the conclusion is irresistible that no such
agreement was made, a compromise verdict in favor of plain-
tiff will be set aside as against evidence and the weight of
evidence, and the complaint dismissed.
Motion to set aside verdict.
I. Balch Louis, for plaintiff.
Dawson, Merrill & Dawson (Edwin S. Merrill, of
counsel), for defendant.
Erlanger, J. The memorandum published in this
matter on February seventeenth is hereby recalled
and the following substituted in place thereof :
Claiming that he was employed as office manager by
the defendant, a membership corporation, for the term
of his life, and that he was unlawfully discharged,
Digiti
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414 Gebaves v. Am. Inst, for Scibntitic Research.
Supreme Court, February, 1921. [Vol.114.
plaintiff brought this action to recover his damages
for such breach. It is alleged that the hiring occurred
in December, 1909, and was terminated by notice at
the end of the year 1916. His salary was at first $15
each week ; was increased to $75 per month, and later
to $100 each month, which latter sum he received at
the time of his discharge. Plaintiff's employment was
in connection with defendant's department known as
the Psychical Eesearch Society. During the period
mentioned, James A. Hyslop was defendant's secre-
tary and treasurer and it is claimed that he made the
contract declared upon. Within this same period the
defendant's other officers were a president and vice-
president, besides a board of trustees, of which
Hyslop was one. The trustees, from time to time,
awarded to Hyslop funds, characterized as a ** sub-
sidy," out of which the psychical research work, as
well as the salaries of the employees connected with
it, were paid. This ** subsidy" was disbursed by
Hyslop under the direction of the trustees. The
making of the contract was denied by the answer, and
among other defenses it was urged that the defendant
was without power either to make or ratify it; that
such an. agreement was unreasonable and would
deprive future boards of directors of the power vested
in them by statute to manage defendant's affairs, and
was therefore null and void. The illegality of the con-
tract was urged throughout the trial, but the case on
the facts was sent to the jury, who returned a verdict
for the plaintiff for $650. It was clearly a compromise
verdict, but the new trial moved for was upon all the
grounds mentioned in section 999 of the Code,
Motions to dismiss were made at the end of plaintiff's
case and again at the close of the entire case, and in
each instance decision was reserved. Whether or not
officers or agents of a corporation may make a life
Digiti
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Greaves v. Am. Inst, for Scientific Research. 415
Misc.] Supreme Court, February, 1921.
contract with one of its employees, binding on it, has
been before onr courts a number of times. Authorities
exist on both sides of the question. In Schivarz v.
Regensburg & Son, 168 App. Div. 903; affd., 223 N. Y.
521, it was held that an agreement with a former
employee that if he would retire and refrain from
competing with the defendant for the rest of his life
or from engaging in its line of business, the defendant
would pay him a fixed sum yearly for life, in weekly
installments, was enforcible. In Beers v. New York
Life Ins. Co., 66 Hun, 75, and Carney v. New York
Life Ins. Co., 162 N. T. 453, it was decided that agents,
however plenary their power, could not make such a
contract unless specifically authorized so to do. In
another line of cases it was asserted that the corpora-
tion may be estopped from denying the agent's author-
ity to make such an agreement. Usher v. Neiv York
C. & H. B. B. R. Co., 76 App. Div. 422; affd., 179
N. Y. 544; MontwU v. Am. Locomotive Co., 159
N. Y. Supp. 21. From this contrariety of views
it is evident that each case depends upon its
peculiar circumstances, and that such agreements,
while not condemned, will not be upheld in the absence
of an express authorization of or a ratification of the
agent's acts. Applying the authorities to the case in
hand it seems quite clear that the right of Hyslop to
bind the defendant simply because he employed all
the help in connection with his work, and because of
his absolute charge of the ** subsidy *' from which all
his aids were paid, invested him with no power to
make the agreement. The fact that the plaintiff aban-
doned his work as a Unitarian pastor to ally himself
with Hyslop does not aid him. Nor again does
Hyslop 's deception in the alleged promise made to
plaintiff help the latter in the dilemma he is now in.
The question is purely one of power. There was no
Digiti
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416 Madden v. Bosseter.
Supreme Court, February, 1921. [Vol.114.
proof from which such power can even be inferred,
nor was it made to appear that the trustees were ever
informed or had the slightest knowledge that plain-
tiff ever claimed that a life contract was made with
him. Contracts of such a character, except in rare
instances, have been held to be unreasonable, because
they hampered the course of future trustees of cor-
porations in the conduct and management of their
affairs. When the evidence is considered, not alone
the oral proof but the letters written by the plaintiff
to Hyslop and others, the conclusion is irresistible
that no such agreement was made. True the jury
found the facts in favor of the plaintiff and awarded
to him the most trifling damage. That sympathy
played an important part in the finding is undoubted.
That it was a compromise verdict is also self-evident.
The verdict was clearly against the evidence and the
weight of the evidence, and must be set aside. On the
law of the case, the contract having been held by me
to be unenforcible, no new trial should be granted, but
the complaint should be and is dismissed. Exception
to plaintiff. Thirty days stay; sixty days to make a
case.
Ordered accordingly.
John E. Madden, Plaintiff, v. John H. Bosseteb,
Defendant. ^
(Supreme Court, New York Special Term, February, 1921.)
Injimctions — when plaintiff will be granted a mandatory injunc-
tion — contracts — animalg — receivers.
Where by a written agreement of sale defendant was to
have the possession and use of a valuable stallion, in California,
during the seasons of 1919 and 1920, the plaintiff to have him
Digitized by
Google
Madden v. Bosseteb. 417
Misc.] Supreme Court, February, 1921.
for use in Kentucky during the seasons of 1921 and 1922,
and "thereafter on new arrangements mutually satisfactory,"
the defendant has no legal right to insist upon any condition
for the return of the horse to plaintiff except to ship him to
plaintiff's stock farm in Kentucky, the season of 1921 now
opening.
Where defendant flatly refuses to abide by the agreement
unless plaintiff ^ers into a new agreement which is unsatis-
factory to him, w^laintiff will be granted a mandatory injunc-
tion requiring defendant to ship the horse in accor^nee with
their agreement, and enjoining other disposition of ^b.
IfftQu giving a bond a receiver of the stallion will be
appointed with power to take appropriate steps, in California
or elsewhere, and to invoke the aid of any court to gaiuyftos-
session of the horse, and ship him to plaintiff's stock farm/to
which place he should have been sent in Aug^ust or September,
1920.
Motion for an injunction.
Kalish & Kalish (Charles A. Kalish, of counsel) ,
for plaintiff.
Thomas F. Kane and John B. Dahlgren (Thomas F.
Kane, of counsel), for defendant.
Ford, J. Plaintiff is a resident of New York and
the defendant of California. Each owns a half interest
in the thoroughbred stallion Friar Eock. which the
plaintiff now values at $250,000. In fact the defend-
ant paid the plaintff $30,000 for a half interest in the
horse more than two and a half years ago.
Under the written agreement of sale coated June 29,
1918, the defendant was to have possession and use of
Friar Eock in California during the seasons of 1919
and 1920, the plaintiff to have him for use in Kentucky
during the seasons 1921 and 1922; ** thereafter on new
arrangements mutually satisfactory.^*
The season 1921 is now open or opening and
27
\
Digiti
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418 Madden v. Rosseter.
Supreme Court, February, 1921. [Vol. 114.
plaintiff by the agreement is entitled in his turn to
possess and use the stallion, but defendant flatly
refuses to abide by his agreement unless the plaintiff
enters into a new agreement which is unsatisfactory
to him.
The defendant has utterly no right to insist upon
any conditions of any kind for returning the horse to
plaintiff except those expressed in the agreement of
sale and those require his shipment forthwith to the
plaintiff's stock farm in Kentucky. Indeed he has
already been kept by the defendant so far beyond the
reasonable time of shipment as to substantially preju-
dice the plaintiff's rights. The horse should have been
sent in August or September of 1920 in order to get
the stallion acclimated and fit for the season of 1921,
during which the plaintiff is entitled to his possession.
Personal service of the summons upon the defend-
ant has been made in this state and he has duly
appeared by his attorneys. Upon the verified com
plaint and affidavits the plaintiff now asks for al
mandatory injunction requiring the defendant to ship
Friar Bock to Kentucky as provided in the agreement
and enjoining other disposition of him;jtlso for a
roceiveFof the stallion with jnwpr tn propfted to Cali-
fornia and to take appropriate steps there or^elge-
w]>ere, including the mvoking of the aid of the courts
of that or any other state, or of the Federal courts,
to gain possession of the animal and ship him to the
plaintiff's stock farm in Kentucky.
Plaintiff's application for relief is quite novel but
so is the situation in which he finds himself. Already
his rights have been prejudiced and further irreparable
damage is threatening him. There must be a remedy
and I do not believe this court is powerless to give
it to him. Th^ relief prayed for seems to be the most
practicable and appropriate which is available to him.
I
Di^itizelabyGoOQle
People ex rel. A. L., H. & P. Co. v. Cantor. 419
Misc.] Supreme Court, February, 1921.
Jha-COBrts^of sister states may be relied npon-Jx) aid
jIL-fifirying the ends of jn'sticpi whfinftvftr nnr own
jrocessjalls short of effectiveness. \
The^otion will be' granted and the amount of the
receiver's bond will be fixed npon the settlement of
the order.
Motion granted.
People ex rel. The Astoria Light, Heat and Power
Company, Relator, v. Jacob A. Cantor, Richard H.
William, Arthur H. Murphy, George Henry
Payne, James F. O^Q-rady, James P. Sinnott and
Lewis M. Swasey, Constituting the Board of Taxes
and Assessments of The City of New York,
Defendants.
(Supreme Court, New York Special Term, February, 1921.)
Oertiorari — taxes — debt due from United States not exempt —
when proceeding to review an assessment for personal prop-
erty will be dismissed — United States Revised Statutes,
§8701 — Tax Law, §2(8).
The unpaid balance of a debt which was due and owing
from the United States, on October 1, 1919, on certain war
contracts fully performed, is not exempt from taxation under
section 3701 of the United States Revised Statutes but is an
asset subject to municipal taxation under section 2(8) of the
Tax Law of the state, for the year 1920, as a debt due from
a solvent debtor, and proceedings on a writ of certiorari under
section 12 of the Tax Law, to review an assessment which dis-
allowed the deduction of such a debt, will be dismissed.
CebtioIiabi proceedings.
Curtis A. Peters, for relator.
John P. O^Brien, corporation counsel (Max Solo-
mon, of counsel), for defendant.
Digiti
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420 People ex rel. A. L., H. & P. Co, v. Cantor.
Supreme Court, February, 1921. [Vol.114.
Lydon, J. This is a certiorari proceeding brought
to review personal property assessment of $1,458,300
for the year 1920, made by the defendants as tax com-
missioners of the city of New York against the
relator herein pursuant to section 12 of the Tax Law.
There are no disputed facts. The relator, however,
claims that the assessment is erroneous and should
be reduced from $1,458,300 to $849,073.95 upon the
ground that the defendants erroneously disallowed the
deduction of the item amounting to $609,317.30 repre-
senting a debt due and owing from the United States
government to the relator on October 1, 1919.
The question, therefore, to be determined by me is
as follows : Is the debt of $609,317.30 due and owing
from the United States government on October 1,
1919, which is the taxable status day for the year
1920, exempt from taxation on the ground as alleged
by the relator that the same comes within, section 3701
of the United States Eevised Statutes!
The defendants contend that the item of $609,317.30
is a taxable asset in that it represents money due
from a solvent debtor which is personal property as
defined by section 2, subdivision 8, of the Tax Law,
which provides as fellows: ** The terms * personal
estate ' and * personal property ' as used in this chap-
ter, include chattels, money, things in action, debts due
from solvent debtors, whether on account, contract,
note, bond or mortgage ; * * *.'^
It is not contended by the relator that this item of
$609,317.30 is not a debt due from a solvent debtor
and therefore not properly included, but the claim is
made that inasmuch as this indebtedness is due from
the United States government as an unpaid balance
on certain war contracts (which have been fully per-
formed) it is exempt under section 3701 of the
United States Revised Statutes, which provide?
Peopus ex BEL. A. L., H. & p. Co. V. Cantor. 421
Misc.] Supreme Court, February, 1921.
as follows: **A11 stocks, bonds, treasury notes and
other obligations of the United States shall be
exempt from taxation by or under state or municipal
or local authority.*^ Does this debt come within
the meaning of the words ** and other obligations of
the United States '^ in the provision of that statute!
The relator to support its contention refers at great
length to the case of Banks v. Mayor, 7 Wall. 16, but
that case involved the question as to whether certifi-
cates of indebtedness issued by the United States
government were subject to local taxation, and the
court held that they were not. There, supplies had
been furnished to the United States government to
enable it to carry on the war for the integrity of the
Union, and certificates of indebtedness had been
issued by the United States to the creditors in pay-
ment for the supplies, and under the terms of these
certificates the government promised to pay the sums
of money specified in them, with interest, at a time
named. The court quite properly held that these cer-
tificates were beyond the taxing power of the states.
In the instant case, the money owing by the United
States government to the relator is not represented
by any written instrument whereby the government
promises to pay this amount, with interest, at a time
named, and, therefore, in my opinion it is not the
same kind of an obligation as the certificates of
indebtedness. Furthermore, in the case of People
ex reL Bank of New York v. Board of Supervisors,
etc., 37 N. Y. 21, 23, the court expressed its view upon
the meaning of the words ** oth^ obligations *^ when
it used the following language in referring to the act
of Jxme 30, 1864, the phraseology of which is prac-
tically the same as that used in section 3701 of the
Revised Statutes: ** By that act the secretary was
authorized to borrow $400,000,000 upon the credit of
Digiti
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422 People ex rel. A. L., H. & P. Co. v. Cantor.
Supreme Court, February, 1921. [Vol.114.
the United States, and to issue bonds therefor, and to
issue $200,000,000 of treasury notes, both of said
securities bearing interest and payable at a future
day ; and it was enacted that * all bonds, treasury notes,
and other obligations of the United States, shall be
exempt from taxation.' This also, in my judgment,
should be limited to the subject matter of the act,
to wit: bonds and treasury notes, or, at the most, to
the other bonds and treasury notes of the various
kinds I have mentioned, which might be deemed
' other obligations ' of a like character. If it had been
intended to exempt legal tender notes, apt words to
describe them would have been used, or the notes in
the act referred to would have been specified. It is
inconceivable that congress should have continued to
repeat and reiterate this exemption on six different
occasions, if the acts of February 25, 1862, and of June
30, 1864, were intended to embrace aU the securities or
obligations of the United States in all imaginable
forms.*'
Likewise in the case of Hibernia Savings <B Loan
Society v. San Francisco, 72 Pac. Eepr. 920; affd., 200
U. S. 310, the court at page 922 said: " The statute
relied on (Sec. 3701, U. S. Revised Statutes) was
enacted simply in furtherance of the principle enun-
ciated in McCiUloch v. Maryla/nd, (4 Wheat. 316, 4 L.
Ed. 579), and to indicate the determination of congress
that the usefulness of certain instruments as a means
of carrjdng on the government would be enhanced by
exemption from taxation. See Bank v. Supervisors,
supra. The words '•and other obligations,' read in
connection with the context, * stocks, bonds, Treasury
notes,' include only obligations of the government
similar in character to those specifically named, and
given under the general power to borrow money on
the credit of the United States, and to issue in return
Digiti
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Peopi^b ex rel. a. L., H. & P. Co. v. Cantor. 423
Misc.] Supreme Court, February, 1921.
therefor obligations in any appropriate form (see
Legal Tender Case, 110 U. S. 421, 444; 4 Sup. Ct. 122,
28 L. Ed. 204), and do not include checks given in pay-
ment of such obligations.^^
The government must necessarily carry out a great
many of its functions through contractors or agents,
and simply because they are doing government work
it does not necessarily follow that the money due
them from the government in payment of such serv-
ices or work performed is free from local taxation.
Whether or not the agencies of the federal govern-
ment are exempt from taxation by the state is depend-
ent, not upon the nature of the agents, nor upon the
mode of their constitution, nor upon the fact that they
are agents, but upon the effect of the tax, that is, upon
the question whether the tax does in truth deprive
them of power to serve it, or hinder the efficient exer-
cise of their power. A tax upon the property of the
agents having no such necessary effect, and leaving
them free to discharge the duties they have under-
taken to perform may be rightfully imposed by the
state. Railroad Company v. Peniston, 18 Wall. 5.
The taxing power exists in the state unrestricted
by the Federal Constitution or government, except as
to the means necessary to the latter to discharge its
functions. There are many agencies of the federal
government which do not enjoy any exemption what-
ever from taxation by the states, and they do not claim
such exemption even in respect of property which
they use when serving the government. Not a small
portion of their earnings, and the dividends which
they distribute among their stockholders, is derived
from the government. They even pay to the state
taxes upon those earnings.
In the case of Railroad Company v. Peniston, supra,
at pa^^e 30, the court said: ^' While it is true that
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424 People ex rel. A. L., H. & P. Co. v. Cantor.
Supreme Court, February, 1921. [Vol.114.
government cannot exercise its power of taxation so
as to destroy the State governments, or embarrass
their lawful action, it is equally true that the States
may not levy taxes the direct effect of which shall be
to hinder the exercise of any powers which belong to
the National government. The Constitution contem-
plates that none of those powers may be restrained by
State legislation. But it is often a difficult question
whether a tax imposed by a State does in fact invade
the domain of the General government, or interfere
with its operations to such an extent, or in such a
manner, as to render it unwarranted. It cannot be
that a State tax which remotely affects the efficient
exercise of a Federal power is for that reason alone
inhibited by the Constitution. To hold that would be
to deny to the States all power to tax persons
or property. Every tax levied by a State withdraws
from the reach of Federal taxation a portion of the
property from which it is taken, and to that extent
diminishes the subject upon which Federal taxes may
be laid. The States are, and they must ever be, co-
existent with the National government. Neither may
destroy the other. Hence the Federal Constitution
must receive a practical construction. Its limitations
and its implied prohibitions must not be extended so
far as to destroy the necessary powers of the States,
or prevent their efficient exercise. *'
And again, at page 36, the court said: **A11 State
taxation which does not impair the agent's efficiency in
the discharge of his duties to the government has been
sustained when challenged, and a tax upon his prop-
erty generally has not been regarded as beyond the
power of a State to impose.''
The fact that the contracts in evidence were for fur-
nishing materials and doing work to carry on the war
is of no moment, because these contracts were
Digiti
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Dietrich v. Palisades Interstate Park Comm. 425
Misc.] Supreme Court, February, 1921. I
executed contracts, and the item of $609,317.30, the
balance due on said contracts, is nothing more than a
debt due from a solvent debtor, and in my opinion is
taxable by the local authorities. It is hard to conceive
how the taxation of this debt by the city of New York
will in any way interfere with the federal government
carrying on any of its functions.
Having held that the item in question is properly
taxable, I deem it unnecessary to discuss the other
points raised by the corporation counsel upon the
trial. The certiorari proceedings herein are therefore
dismissed, with costs.
Proceedings dismissed, with costs.
Martha Dietrich, an Infant, by George B. Dietrich,
her Guardian ad Litem, Plaintiff, v. Palisades
Interstate Park Commission, Defendant.
(Supreme Court, New York Special Term, February, 1921.)
NegUgence — action for personal injuries — statutes — carriers —
corporations — pleading — tort.
An action against a common carrier to recover damages for
personal injuries to a passenger is an action ex delicto and
not ex contractu.
Where the complaint alleges that while plaintiff was a pass-
enger on defendant's steamer, and without fault on his part, a
door was closed on his hand by reason of the negligence of
defendant, its agents, servants and employees, to his personal
injury, for which he demanded judgment in a certain sum,
the action is in tort.
An allegation that defendant, the "Palisades Interstate
Park Commission," is a domestic corporation is subject to the
modification that the court must take judicial notice of and
review the statutes relating to defendant, its organization and
purposes, precisely the same as if said statutes had been incor-
porated in the complaint.
Digiti
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Supreme Court, February, 1921. [Vol.114.
The fact that defendant by the statute creating it (Laws of
1900, chap. 170, and amendatory acts) was given express
power to sue and be sued, does not subject it to liability to an
individual for negligence in the performance of a public duty,
and the complaint on demurrer will be dismissed, with leave to
plaintiff to plead over on presentation of an affidavit showing
facts that will enable him to overcome the defects in his
pleading.
Demurrer to complaint.
Arthur J. Levine, for plaintiff.
Barry, Wainwright, Thacher & Symmers (Herbert
Barry and Joseph A. Warren, of counsel), for
defendant.
Lydon, J. This is a demurrer to a complaint brought
on for trial as a contested motion. The defendant
demurs to the complaint upon three grounds: (1)
That it appears upon the face of the complaint that
the court has not jurisdiction of the person of the
defendant; (2) that the court has not jurisdiction of
the subject of this action, and (3) that the complaint
does not state facts suflScient to constitute a cause of
action. The complaint alleges that the defendant is a
domestic corporation; that it is the owner of the
steamer Clermont ; that it operated the said steamer
as a common carrier of passengers for hire ; that on a
certain date while the plaintiff was a passenger for
hire on the defendant's said steamer, and which said
steamer was proceeding from Bear Mountain to New
York city, a door of said steamer was closed on the
plaintiff's hand, without any fault on the part of the
plaintiff and by reason of the negligence of the
defendant, its agents, servants and employees, and
thereby the plaintiff was injured, and damages are
prayed for in the sum of $5,000.
Digiti
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Dietrich v. Palisades Interstate Park Comm. 427
Misc.] Supreme Court, February, 1921.
The complaint sets up only that the plaintiff was a
passenger and was injured by the negligence of the
defendant's agents. No breach of contract is alleged.
I am, therefore, obliged to hold that the action is in
tort notwithstanding the claim of the plaintiff that it
is an action on contract. It is now well settled that
an action against a common carrier for personal
injury to a passenger by negligence, where no con-
tract is specifically pleaded, is an action ex delicto
and not ex contractu, although the complaint may
allege that the plaintiff held a ticket for transporta-
tion. In the case of Atlantic d Pacific B. R. Company
V. Laird, 164 U. S. 393, in an opinion written by Chief
Justice White, it was stated **The doctrine is very
clearly expressed in Kelly v. Metropolitan Railway
Company (1895), 1 Q. B. 944, where the Court of
Appeals held that an action brought by a railway pas-
senger against a company for personal injuries caused
by the negligence of the servants of the company,
while he was traveling on their line, was an action
founded upon torf
Having thus determined that the action as alleged
in the complaint is founded upon tort, I now approach
the question, whether the plaintiff has the right to
institute such an action against the defendant. The
allegation that the defendant herein, the Palisades
Interstate Park Commission, is a domestic corpora-
tion is subject to the modification that the court must
take judicial notice of the statutes relating to the
defendant, its organization and its purposes, and to
review them precisely the same as if incorporated in
the complaint. A consideration of these statutes shows
that the members of the defendant commission are
appointed by the governor (Laws of 1900, chap. 170,
§ 1) to acquire and maintain an interstate park for
the enjoyment of the public, and to provide and main-
Digiti
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428 Dietrich v. Palisades Interstate Park Comm.
Supreme Court, February, 1921. [Vol.114.
tain means of transportation to and from it in order
to make it accessible to the public. Laws of 1900, chap.
170, § 2, as amd. by Laws of 1915, chap. 562 and Laws
of 1920, chap. 283; Laws of 1900, chap. 170, § 4, as
amd. by Laws of 1906, chap. 691, and Laws of 1910,
chap. 361; Laws of 1900, chap. 170, § 5, as amd. by
Laws of 1906, chap. 691, Laws of 1910, chap. 361, and
Laws of 1917, chap. 168. The defendant is, therefore,
conducting this interstate park and operating the
steamer Clermont not for private gain but as a public
enterprise under legislative authority to entertain the
public ; it is a state agency charged with a public duty.
It performs no private functions; the commissoners
are not even compensated. In the matter herein the
defendant was acting within its statutory authority.
It therefore clearly appears that the action is against
the state. In the case of Di Marco v. State of New
York, 110 Misc. Rep. 426, the court said: ** It is a well
settled principle of law that the state in consequence
of its sovereignty is immune from prosecution in the
courts and from liability to respond in damages for
negligence except in those cases where it has expressly
waived immunity or assumed liability by constitu-
tional or legislative enactment. ''
Likewise in the case of Sipple v. State of New York,
.99 N. Y. 285, 287, the court said: '' It must be con-
ceded that the State can be made liable for injuries
arising from the negligence of its agents or servants,
only by force of some positive statute assuming such
liability.'^ This doctrine was further securely estab-
lished in the case of Locke v. State of New York, 140
N. Y. 480, 481, when the following language was used
by the court: ** The sovereign cannot be impleaded
nor made liable in damages for any cause whatever in
the courts of justice, save in such cases aa it has itself
consented to be made liable. ^^
DiETTJCH V. Palisades Interstate Park Comm. 429
Misc.] Supreme Court, February, 1921.
Upon the aforementioned authorities, the defendant
herein, in the absence of clearly expressed statutory
consent to liability, is not liable. No such consent is
shown by the plaintiff, nor do I find any in the stat-
utes. I do find, however, that the Palisades Interstate
Park Commission created by the Laws of 1900, chap-
ter 170 (amd. by Laws of 1914, chap. 15; Laws of 1915,
chap. 562, and Laws of 1920, chap. 283) has been given
express power to sue and be sued, but I do not believe
that this power subjects it to liability to an individual
for negligence in the performance of a public duty,
Stephens v. Commissioners of Palisades Interstate
Park, 108 Atl. Repr. 645; Freeholders v. Strader, 18
N. J. Law, 108.
I conclude, therefore, that the defendant is not
liable in this action. The demurrer to the complaint
is sustained, with ten dollars costs, upon all of the
grounds advanced by the defendant, and complaint
dismissed, with costs, with leave to the plaintiff, how-
ever, to plead over within ten days after the service of
a copy of the order to be entered hereon, with notice of
entry thereof, upon payment of said motion costs,
provided the plaintiff presents, upon settlement of the
order, an affidavit showing facts which will enable him
to overcome the defects in the pleading.
Ordered accordingly.
George B. Dietrich, Plaintiff, v. Palisades Inter-
state Park Commission, Defendant.
(Supreme Court, New York Special Term, February, 1921.)
See Dietrich v. Palisades Interstate Park Commission, imme*
diately ante.
Demurrer to complaint.
Digiti
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430 Miller v. Walsh.
Supreme Court, February, 1921. [Vol.114.
Arthur J. Levine, for plaintiff.
Barry, Wainwright, Thacher & Symmers (Herbert
Barry and Joseph A. Warren, of counsel), for
defendant.
Lydon, J. This is a demurrer to a complaint
brought on for trial as a contested motion. The com-
plaint states a cause of action brought by the father
for the loss of services and earnings of his infant
daughter, and also for expenses incurred as a result
of the injuries the said infant daughter received while
a passenger on the steamer Clermont, alleged to be
owned and operated by the defendant. The facts, as
well as the grounds of the demurrer, are precisely the
same as in the case of Dietrich v. Palisades Interstate
Park Commission, the decision in which is handed
down herewith. I make my opinion in that case stand
as my determination in this case.
Ordered accordingly.
George Douglas Miller, Plaintiff, v. Edward S.
Walsh, Individually and as Superintendent of Pub-
lic Works of the State of New York, Defendant.
(Supreme Court, Monroe Special Term, February, 1921.)
Injunctions — stunmaiy appropriation by the state of disputed
land, under Laws of 1911, chap. 746, for canal uses, is a com-
plete answer to a motion to continue an injunction.
The rule that a public body may not institute proceedings
under the Condemnation Law to condemn property which it
claims to own, is not operative as against the state in its
appropriation of lands for canal terminal uses.
Several notices sent by the state superintendent of public
works to plaintiff directing him to remove that part of a build-
Digitized by
Google
MiLLBB V. Walsh. 431
Misc.] Supreme Court, February, 1921.
ing which he claims to own, but which the state claimed
encroached upon canal lands, was followed by a letter of advice
to the effect that in the case of plaintiff's refusal or failure to
make such removal, the department of public works would
cause the same to be demolished and removed at plaintiff's
expense. Held, that the summary appropriation by the state
of the portion of land in controversy, made pursuant to stat-
ute (Laws of 1911, chap. 746) for Barge canal terminal uses,
was a complete answer to a motion to continue an injunction
theretofore procured by plaintiff in an action brought to
restrain the defendant individually and as superintendent of
public works from entering upon the premises until the further
order of the court.
Plaintiff's reliance upon the Statute of Limitations to but-
tress his claim, if his title should otherwise fail, does not change
the situation, and he runs no hazard of being unjustly deprived
of any advantage attaching to his claim of ownership to the
land in dispute, and his rights are securely safeguarded
against infringement without the protection of an injunction.
Motion on behalf of the plaintiff, brought on upon
an order to show cause why the injunction granted
herein should not be continued until the issues in this
action between the plaintiff and the defendant shall
have been iBnally determined.
Joseph W. Taylor and Thomas J. Hargrave, for
plaintiff.
Charles D. Newton, Attorney-General (Edward J.
Mone, Deputy Attorney-General), for defendant.
Stephens, J. This action was brought to restrain
the defendant from interfering in any way with the
property which the plaintiff claims to own, situated
upon the southwest corner of. South avenue and Court
street, in the city of Rochester, and which is bounded
on the west by the east line of the prism of the Erie
canal.
The state of New York claims that the building on
said premises encroaches upon the canal lands, and in
Digiti
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432 MiLLEB V. Walsh.
Supreme Court, February, 1921. [Vol.114.
August, 1920, the defendant notified the plaintiff of
such claim and directed him to remove the part of ^he
building on its land on or before September first;
notice of like import was given in December, requir-
ing that the removal be made on or before January 15,
1921; these notices were followed by a later one i-i
December advising the plaintiff that if he refused or
failed to remove the offending structure the depart-
ment of public works .would cause the same to be
demolished and removed at his expense; on January
13, 1921, the plaintiff procured an injunction in this
action restraining the defendant from entering upon
said premises until the further order of the court,
together with the order to show cause why the said
injunction should not be continued; the motion was
heard on January twenty-ninth and submitted on
briefs February twelfth.
Since the injunction was obtained and after the
moving papers were served the state appropriated
that portion of the land in controversy pursuant to
chapter 746 of the Laws of 1911 for the purposes of
the Barge canal terminal at Rochester and the defend-
ant sets up this appropriation as a complete answer
to the plaintiff's motion.
Upon the appropriation map, following the descrip-
tion of the property appropriated, is the statement
that ''nothing herein contained shall be construed as
an admission by or on the part of the state of title to
said parcel in any party other than the State of New
York, the state on the contrary contending that said
parcel is within the canal Blue Line and is its
property.'*
This assertion of title in itself upon the appropria-
tion map the plaintiff earnestly insists defeats the
purpose of the state and that the defendant, therefore,
is unaided by its action, founding his argument upon
Digiti
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Miller v. Walsh. 433
Miac.] Supreme Court, February, 1921.
the proposition that the state or any other public body
cannot institnte condemnation proceedings to secure
possession of property that it owns or claims to own.
Matter of City of Tonkers, 117 N. Y. 564:] Matter of
Village of Olean, 135 id. 341 ; City of Geneva v. Hen-
son, 195 id. 447. The general principle for which
the plaintiff contends is supported by the authorities
cited and it indeed is re-affirmed in People ex rel. Pal-
mer V. Travis, 223 N. Y. 150, an authority upon which
the defendant conjBdently relies.
The position of each party here is fortified by well
reasoned argument and our problem is to discover
whether the plaintiff can successfully prevent the sum-
mary appropriation by the state of the property which
each claims to own until after the conflicting claims to
title have been settled in this litigation because of the
assertion by the state of its claim to ownership in the
initial notice of appropriation and whether the state
is limited in taking property for canal terminal pur-
poses by the same rules that are applicable in proceed-
ings under the Condenmation Law.
Section 8 of chapter 746 of the Laws of 1911 pro-
vides that : "The state engineer may, with the approval
of the canal board • • • enter upon, take posses-
sion of and use lands, structures and waters * • •
the appropriation of which for the barge canal ter-
minals • • • shall in his judgment be neces-
sary'\ After compliance with certain requirements
specified in the statute, all of which have been duly
observed in this instance including service upon the
plaintiff of the notice of appropriation with a map of
the property taken, *'the entry upon and the appro-
priation by the state, of the property described • * •
shall be deemed complete and such notice so served
shall be conclusive evidence of such entry and appro-
priation and of the quantity and boundaries of the
28
Digiti
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434 Miller v. Walsh.
Supreme Court, February, 1921. [Vol.114.
property appropriated.*' Kahlen v. State of New
York, 223 N. Y. 383. The statute further provides
that : ' ' The court of claims • * * shall have juris-
diction to determine the amount of compensation for
lands, structures and water so appropriated.'*
It was held in the Palmer case, above referred to,
that the above quoted provision of the statute relating
to the jurisdiction of the Court of Claims was not a
limitation upon the general jurisdiction of the court
elsewhere conferred, and that the court had jurisdic-
tion to determine the title to land so taken as between
question of title but their inquiry is restricted to the
the state and a rival claimant.
The established rule that a public body may not
institute proceedings under the Condemnation Law
to condemn property which it claims itself to own is a
rule of necessity, for the commissioners appointed in
such proceedings are not authorized to pass upon the
amount of compensation to be awarded. City of Geneva
v. Henson, 195 N. Y. 447. This rule, however, is not
operative as against the state in its appropriation of
lands for canal terminal uses for as a part of the plan
in which the state is permitted smnmarily to take pos-
session of real property all questions relating to title
between the state and reputed owners and the compen-
sation to be given are placed within the jurisdiction of
a constituted tribunal to determine.
The conclusion which our discussion anticipates
finds further support in First Construction Co. v.
State of New York, 221 N. Y. 295; Miller v. State of
New York, 164 App. Div. 522; affd., 223 N. Y. 690.
In the first of the cases last above cited the appro-
priation was of ** all the right, title and interest not
belonging to the State of New York** in the described
premises, the state asserting by inference, at any rate,
some title or interest in them ; in the second, the notice
Digiti
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Miller v. Walsh. 435
Misc.] Supreme Court, February, 1921.
of appropriation states ''it being contended that title
to said land is and has heretofore been in the State of
New York and John F. Miller and Dngald C. Mcln-
tyre claiming to own the whole or some part thereof,
now, whatever rights, title or interest if any therein
are held or owned by them are appropriated * * * ;*^
the language nsed being not essentially different from
that which is now under scrutiny ; in the one case the
title of the claimant was partially and in the other
wholly denied; in Palmer v. State of New York,
174 App. Div. 933; affd., 220 N. Y. 565, the
proceeding before the Court of Claims that
gave rise to the later case mentioned above, the
state neither directly nor by inference upon its
appropriation map claimed to own any part of the
real property or interest therein involved; however,
during the course of the hearing before the referee to
whom the matter of title, among other things, was
referred to be determined it did claim some interest
adverse to the plaintiff's ownership; the right of the
state, therefore, to try its title to lands that may have
been appropriated by it has the sanction both of a
recognized practice and of authority ; it is a matter of
indifference, in my opinion, when the state asserts its
claim to title whether at the initiation of the proceed-
ings in its notice of appropriation or later when the
parties are before the court for the adjudication of their
respective interests ; if such claim is omitted from the
notice it can, nevertheless, be asserted in the Court of
Claims, and if alleged in the notice the subsequent pro-
cedure is necessarily no different, for ''where the
state claims title to any lands which under its appro-
priation map it has assumed to take, this queston of
title must necessarily be settled before any award can
be made '* {People ex rel. Palmer v. Travis, supra) j
and practically, if the plaintiff owns the property he
Digiti
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436 Van Etten v. Sphinx Holding Corporation.
Supreme Court, February, 1921. [Vol. 114.
will be compensated for it, if he does not o\m it the
state simply comes into its own ; the appropriation of
the premises in question by the state is inevitable, who-
ever the owner may be, and if the plaintiff should suc-
ceed in this action, the injunction continuing, the
amount of the compensation would be fixed in pre-
cisely the same manner after the determination of any
issues involved here as before such determination.
The plaintiff's reliance upon the Statute of Limita-
tions, to buttress his claim if his title should other-
wise fail, does not change the situation, for in
whatever manner the title of the plaintiff may be
supported, whether by adverse possession or by the
record, it is determinable in the Court of Claims ; more-
over, title by prescription as against the state is but
little esteemed in the authorities. Fvlton Light, E. d
P. Co. V. State of New York, 200 N. Y. 400.
I conclude that the plaintiff runs no hazard of being
unjustly deprived of any advantage attaching to his
claim of ownership to the real property and that his
rights are securely safeguarded against infringement
without injunctive protection.
The motion is denied*
Motion denied.
Akthur L. Van Etten and Medric Tbudeau, Plain-
tiffs, V. Sphinx Holding Corporation et al., Defend-
ants.
(Supreme Court, Monroe Special Term, February, 1921.)
Hechaaics' lien — foredosare — motions for leave to senre sup-
plemental answer and to intervene denied.
The final judgment in an action to foreclose a mechanics'
lien, from which, no appeal was taken, directed that the amount
Digiti
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Van Etten v. Sphinx Holding Corporation. 437
Misc.] Supreme Court, February, 1921.
of the liens of the several defendant lienors be first paid, then
the amount of plaintiffs' lien, the surplus, if any, to be paid into
court. After the entry of said judgment the directors of the
defendant owner, upon the affirmance of a judgment recovered
against them on their written guaranty that a first mortgage
upon the premises would be procured and a portion of the net
proceeds paid to the contractor, paid the judgment Held,
that a motion by the defendant owner for leave to eerve a
supplemental answer and a motion by said directors for leave
to intervene, both motions being predicated upon the fact of the
payment of such judgment, will be denied.
The defendant lienors, whose rights in the real property,
as finally adjudicated in the lien action, are superior to those
of the others, have no concern with the differences among the
others, except that they be no longer delayed in securing the
fruits of their litigation.
Motion on behalf of the above named defendant for
leave to serve a supplemental answer herein and on
behalf of Charles M. Hirschfelder and ten others for
leave to intervene and become parties defendant.
Herbert J. StuU (Percival D. Oviatt, of counsel), for
defendant Sphinx Holding Corporation and said pro-
posed intervenors.
William MacFarlane, for plaintiffs, and upon this
motion for all the defendants other than Sphinx Hold-
ing Corporation and Frank Strauss.
Charles B. Bechtold, for defendant Frank Strauss.
Stephens, J. This action was commenced in Janu-
ary, 1918, for the purpose of foreclosing the plain-
tiffs' mechanics lien upon premises owned by the
defendant Sphinx Holding Corporation; the other
defendants were also lienors; the action was tried
March 17 and 18, 1919, and the questions involved
were afterwards submitted upon written briefs;
Digiti
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438 Van Etten v. Sphinx Holding Corporation.
Supreme Court, February, 1921. [Vol.114.
memorandum of decision in favor of the plaintiffs was
filed in August, 1919, which detailed all of the essen-
tial facts found and directed formal findings to be pre-
pared as indicated in the memorandum; the findings
were presented for signature on May 25, 1920, and the
final decree was entered on that day, establishing the
lien of the plaintiffs and the Uens of some of the
defendants and containing the usual directions to sell
the premises to satisfy the liens; no appeal has been
taken from that judgment and the premises have been
advertised for sale.
It is the situation thus briefly summarized that the
defendant corporation and the proposed intervenors
seek to disturb by reason of other facts which it is now
necessary to consider.
The plaintiffs in this action and the Sphinx Holding
Corporation entered into a contract April 14, 1917, by
which the plaintiffs agreed to put up a building upon
real estate owned by the said defendant at a stipu-
lated price ; the contract provided that as soon as the
roof was on the building the owner would apply for
and secure a first mortgage on the property for at
least $12,000, the net proceeds of which, after paying
a mortgage on the building lot for $1,150, would be
paid to the plaintiff contractors. In the performance
of this contract the liens involved in this action had
their rise.
The proposed intervenors, who were directors of
the Sphinx Holding Corporation, guaranteed, in writ-
ing, the execution of the building contract ''in the fol-
lowing particulars. First: that the mortgage will be
procured upon said premises as provided in said con-
tract and the proceeds thereof paid to the contractor
as therein mentioned.'*
The roof was on the building on or about August
27, 1917, but no money was procured by mortgage or
Digiti
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Van Etten v. Sphinx Holding Cobpobation. 439
Misc.] Supreme Court, February, 1921.
otherwise and no payment was made to the plaintiffs
upon the contract at that time or at any other time,
except a small sum negligible for our present purpose.
In July, 1918, the plaintiffs herein commenced an
action at law against the proposed interveners upon
their guaranty; the first trial resulted favorably to
the defendants; upon appeal the plaintiffs' exceptions
were sustained and a new trial granted; on the second
trial a verdict was directed in favor of the plaintiffs
for an amount equivalent to the net proceeds of the
twelve thousand dollar mortgage with interest from
August 27, 1917 ; after the affirmance on appeal of the
judgment entered upon the verdict and on or about
October 16, 1920, the said proposed interveners, the
defendants in that action, paid the judgment; it is
upon this fact of payment that the Sphinx Holding
Corporation founds its application to serve a supple-
mental answer in this action and the proposed inter-
veners predicate their right to intervene.
A better understanding of the problem can perhaps
be had by having in mind the relative stages of these
two actions during their parallel course through the
court.
The foreclosure action was first commenced; the
action at law was first tried and the plaintiffs were
unsuccessful; this action to foreclose the liens was
tried and the memorandum of decison filed favorable
to the plaintiffs, while an appeal was pending from
the determination of the trial court in the action
brought upon the guaranty; the second trial in the
last mentioned action in which the plaintiffs were suc-
cessful and the appeal were had during the period
that elapsed after decision in the lien action was ren-
dered and the entry of judgment in it ; the time came,
therefore, when the plaintiffs had a favorable judg-
ment in both the action upon the guaranty and that
Digiti
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440 Van Ettbn v. Sphinx Holding Corporation.
Supreme Court, February, 1921. [Vol.114.
npon their lien; their lien having been established for
the value of all the labor and material that entered
into the building it is obvious that they had secured
double relief, in appearance at least, and practically
so if the real estate were of sufficient value to satisfy
their lien and the costs and expenses of the action
brought to foreclose it; in this state of the relations
between the parties concerned the proposed inter-
veners paid the judgment against them.
It was suggested upon the argument that it was
neither necessary nor proper upon this motion to
determine what the equities of the moving parties are,
but only to grant the relief asked for and leave for
later decision, after further inquiry, the merits of the
controversy. Johnston v. Donvan, 106 N. Y. 269, is
cited in support of that proposition ; the facts in that
case and in this are widely different; there the appli-
cation was made before the time to answer had
expired and evidently questions of fact needed to be
determined on common-law evidence; here, all the
facts have been adjudicated, the action has proceeded
to final judgment, and that judgment has settled the
interests of all the parties in the property beyond the
hazard of interference ; these fixed rights ought not to
be swept aside and the entire litigation in which they
were established abrogated unless there be a very
clear comprehension that the claims of the proposed
interveners are rooted in very definite and precise
equities.
The answers which the moving parties seek to inter-
pose are not a part of the papers before me, but the
desire of the corporate defendant is 'Ho file and serve
an amended supplemental answer '^ and that of the
proposed interveners is *'to come in as parties defend-
ants to the action and to file and serve answers herein
setting up such rights as they may have or claim to
Digiti
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Van Etten v. Sphinx Holding Corpobation. 441
Misc.] Supreme Court, February, 1921.
have in respect to the real property in and by said
judgment herein directed to be sold/'
The only fact that the Sphinx Corporation conld
properly plead would be that the first installment on
the contract price of the building has been paid to the
plaintiffs and the proposed intervenors could only be
heard to say in their answers that they paid it; what-
ever rights, therefore, the moving parties have
acquired since the final determination of the two
actions are such as arise between themselves and the
plaintiffs; the skein is further untangled by the cir-
cumstance that the rights of the proposed intervenors
are derivative from those of the defendant corpora-
tion; by the payment of the judgment against them
they became entitled to be subrogated to the rights of
the defendant owner, and to the security held by the
plaintiffs for the payment of the owner's debt. United
States F. <& O. Co. v. Carnegie Trust Co., 161 App.
Div. 429; affd., 213 N. Y. 629.
They are in no different position than an owner who
makes a payment to a contractor or one who makes
advances upon a mortgage with knowledge that
notices of lien have been filed; such payments and
advances are made at the peril of those making them
and do not affect the remedy of the lienor. Lien Law,
§§ 11, 13; Foshay v. Robinson, 137 N. Y. 134; Gass v.
Souther, 46 App. Div. 256; affd., 167 N. Y. 604; Upton
Co. V. Flynn, 169 App. Div. 79.
The moving parties claim the absolute right to be
allowed to set up their alleged defenses under section
452 of the Code of Civil Procedure. Uhlf elder v. Tom-
sen, 15 App. Div. 436, upon which they rely does not
sustain that position ; at most it holds that where the
right to intervene is absolute no conditions can be
imposed; we are not confronted here, in my opinion,
with a situation that is governed by the imperatives of
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442 Van Etten v. Sphinx Holding Cobporation.
Supreme Court, February, 1921. [Vol.114.
the statute ; the Sphinx Corporation is already a party
to the action and the complete determination of the
action could be liad and has been had without the pres-
ence of the proposed intervenors as parties; they do
not come within the description of *' persons not par-
ties, whose rights must be ascertained and settled
before the rights of the parties to the suit can be deter-
mined." Chapman Y.Forhes, 123^. Y. 532, bS8. The
dictum in Drake v. New York Suburban Water Co., 36
App. Div. 275, had no application to the decision in
that case and has no more in this one. Winfield v.
Stacom, 40 App. Div. 95, holds only that specific liens
upon undivided shares of parties to a partition action
should be determined before interlocutory judgment
instead of after and that a mortgagee, whose mort-
gage is subsequent to the commencement of the action,
has a right to be made a party before interlocutory
judgment.
The judgment in this action directs that from the
net proceeds of the sale of the real estate the amount
of the liens of the several defendant lienors be first
paid; then the amount of plain tiflf's lien, less the snms
so first directed to be paid, and that the surplus, if
any, be paid into court; as above suggested the con-
troversy afterward arising is limited to the plaintiffs,
the defendant owner and the proposed intervenors;
the defendant lienors, whose rights in the real prop-
erty as finally adjudicated are superior to those of the
others, have no concern with the differences among
the others except that they themselves be not longer
delayed in securing the fruits of their litigation.
It follows, leaving out of consideration the laches of
the applicants, that the coveted privilege to intervene
and the defendant owner ^s request to set up the pay-
ment of the judgment in the action at law as a de-
fense, must be denied.
Digiti
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Van Etten v. Sphinx Holding Corpobation. 443
Misc.] Supreme Court, February, 1921.
It may or may not be profitable to prolong the dis-
cussion to indicate what might have been done or
remains yet to do to ameliorate the hardship of the
proposed intervenors' position.
An action in equity to foreclose a mechanic's lien
and an action at law to recover the debt, which the
notice of lien was filed to secure, are concurrent reme-
dies ; there may be two judgments but there can be but
one satisfaction of the debt. Robinson v. Fay^ 19
N. Y. Supp. 120; Raven v. Smith, 87 Hun, 90; Bryson
V. St. Helen, 79 id. 167; Matter of Govld Coupler
Co., Id. 206; Smith v. Fleischman, 23 App. Div.
355,
The proposed interveners are not necessarily reme-
diless ; the moneys remaining from the proceeds of the
pale after the defendant lienors are paid pursuant to
the judgment belong equitably to them, to the extent
of their just claim; these moneys will consist of the
diflFerence between the amount required to pay said
defendants and the amount of plaintiffs' lien together
with the surplus ; in this fashion they would get the
benefit of subrogation to the rights both of the defend-
ant owner and of so much of the plaintiffs' security as
is available; if nothing can be realized from these
sources because of the inadequacy of the value of the
property the only resort would be to the judgment for
deficiency against the owner and perhaps to an action
against the plaintiffs ; how practical these suggestions
may prove to be depends upon the value of the prop-
erty ; and the solvency of the plaintiffs and defendant
owner.
No useful purpose will now be served by indicating
what remedies were permissible in the earlier stages
of this dual litigation.
The motion is denied, with ten dollars costs.
Motion denied, with ten dollars costs.
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444 KiBKBE V. State of New York.
Court of Claims, February, 1921. [Vol.114,
Matilda Ktbner, Claimant, v. State of New Yobk.
Claim No. 16513.
(State of New. York, Court of Claims, February, 1921.)
Highways — injury sustained by fall on privately constructed side-
path — state not liable.
Claimant, while walking on a sidepath along a public high-
way constructed by the state and maintained under the patrol
system, caught her foot on a flagstone covering a sluiceway
under the sidepath which had been constructed many years ago
by residents in the vicinity for their own convenience and
used quite extensively by pedestrians, and as a result she fell
and broke her arm. Held, that the state was not liable and a
claim for damages will be dismissed.
Claim for personal injuries.
Michael D. Nolan, for claimant.
Charles D. Newton, Attorney-General (Glenn A.
Frank, Deputy Attorney-General, of counsel), for
state.
Smith, J. On September 28, 1919, the claimant,
who was walking on a sidepath along a public high-
way, in the town of North Greenbush, in the county of
Bensselaer, caught her foot on a flagstone covering
over a sluiceway under the sidepath, fell and broke
her arm. She has filed this claim against the state for
damages, claiming that the sidepath was in an unsafe
condition, due to the negligence of the state.
For many years there has been a public highway at
this location, leading from Pawling avenue in the city
of Troy, to WynantskiU. In the year 1902 the state of
New York, pursuant to the provisions of the Highway
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KiBNER V. State of New York. 446
Misc.] Court of Claims, February, 1921.
Law, constructed an improved highway with mac-
adam pavement, the center line of which was the cen-
ter line of the old highway.
Later, and in the year 1914, this connty highway was
reconstructed by the state with a brick pavement. The
width of the improved road constructed by the state
including shoulders was about twenty-four feet.
Adjoining this improved roadway and to the south
thereof and running parallel therewith was a ditch of
a width at the top of about seven feet and southerly of
the ditch was the sidepath, about five feet in width,
where claimant was walking at the time of the
accident.
At the time of the accident the county highway con-
structed by the state was being maintained under the
patrol system. Neither the sidepath nor the sluice-
way under it was built or maintained by the state, hav-
ing been constructed many years ago by residents of
the town of North Greenbush living in the vicinity, for
their own convenience, and it was used quite exten-
sively by pedestrians travelling along the highway.
Li this situation the state is not liable for the conse-
quences of claimant's accident. Neither the sidepath
nor the sluiceway under it was a part of the county
highway which the state had constructed and the
maintenance of which it had undertaken. The state is
not liable in tort except where liability has been
assumed by statute. Smith v. State of New York, 227
N. Y. 405.
By section 176 of the Highway Law the state has
assumed liability for damages caused by defects in
state and county highways maintained by the state by
the patrol system.
County highways are defined by subdivision 2 of sec-
tion 3 of the Highway Law as ** those • • • con-
structed or improved at the joint expense of state,
Digiti
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446 Ejbnbb v. State of New Yobk.
Supreme Court, February, 1921. [Vol. 114.
county and town, or state and county, as provided by
law."
The effect of these provisions of the Highway Law
is to limit the liability which the state has assumed to
the consequences resulting from defects in the high-
way which it has constructed and the maintenance of
which it has undertaken, and also from conditions
affecting public travel thereon. Thus, it has been inti-
mated that the state would be liable for the conse-
quences of a defect in a wooden driveway or approach
across a ditch bordering an improved county highway,
resulting in damage to one using the improved high-
way. Ferguson v. Town of Lewisboro, 213 N. Y. 141.
Were it otherwise, and were the state to be held to
have succeeded to all the liability with respect to this
highway of the town of North Greenbush, still it would
not be liable. The Town Law has imposed upon town
superintendents of highways no duty to construct and
maintain sidewalks nor charged them with any duty
with respect thereto. It may be, that if a town does
actually construct a sidewalk along a public highway,
it will be charged with the duty of maintaining it in
safe condition for public use so long as it is permitted
to exist {Birngruber v. Town of Eastchester, 54 App.
Div. 80) ; but in this case, as we have seen, the con-
struction and maintenance of this sidepath had been
a purely private enterprise.
The motion made by the counsel for the state at the
close of the case, to dismiss the claim, upon the ground
that the facts as shown give rise to no valid claim
against the state of New York, should be granted and
the claim dismissed.
Webb, J., concurs.
Claim dismissed.
Digiti
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Jokes v. Cocomitros. 447
Misc.] County Court, Jefferson County, February, 1921.
WiLUAM M. Jokes, Plaintiff, v. Alfred Cocomitros,
Defendant.
(County Court, Jefferson County, February, 1921.)
Lease — when provisions of old lease not incorporated in renewal
lease — landlord and tenant — summary proceedings.
Where the provisions of an old lease are continued in a new
lease by reference only, a provision of the former lease for a
renewal of the term is not incorporated in the new lease, unless
that intention is clearly expressed. (P. 451.)
Where the right to a renewal of a five-year lease has been
lost by failure to give the proper notice for an extension of
the term, and the assignee of all the tenant's rights, without
objection on the part of the landlord, continues in possession
of the premises for one month beyond the term, a new lease
given to him for five years from the expiration of the old
lease, containing no specific provision for a renewal, is only a
lease for a term of five years, even though the provisions of
the old lease by reference are incorporated in the new one,
which declares that it was intended as a renewal of the old
lease. (Pp. 450, 451.)
Where in summary proceedings instituted against the assignee
of the lease as a holdover, his only claim is that by the terms
of the new lease he was entitled to at least a further term of
two years, the landlord will be granted a final order awarding
him possession of the premises. (Pp. 450, 452.)
Summary proceedings for possession of premises,
expiration of term.
Purcell, CuUen & Pitcher, for petitioner.
Thomas Bums, for defendant.
CoNBOY, J. The facts were stipulated and the only
question to be determined is the proper construction
of the lease between the parties.
Digiti
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448 Jokes v. Cocomitbos.
County Court, Jefferson County, February, 1921. [Vol. 114.
Harriet V. Smith in her lifetime owned a block on the
public square in the city of Watertown, N. Y., consist-
ing of basement, ground floor and upper floors. On
November 23, 1910, she rented the first floor and base-
ment to one Kachivelos to be used as a store for the
term of five years from January 1, 1911, for $1,800 per
year, payable monthly in advance. The lease con-
tained numerous terms and conditions; such as what
the premises were to be used for, the payment of
taxes, the removal of stairs, the surrender of the
premises at the expiration of the term and other mat-
ters. It then contained the following provision: '*The
parties of the first part further agree that at the
expiration of the above term they will extend this
lease for a period of two years ux>on the same terms
and conditions as herein stated, providing they receive
from the second parties a six months^ written notice
that they desire a continuation of the lease and the
said first parties do further agree that if said two
years' extension be made, that they will upon the
same notice at the expiration of that period, make a
further extension of three years of this lease upon the
same terms and conditions herein provided, except as
to the amount of the rental thereof, which shall at that
time, to wit, seven years from January 1, 1911, be
readjusted. '*
On July 21, 1911, Kachivelos assigned all his inter-
est in the lease to the defendant with the consent of
Harriet V. Smith. It was agreed in the assignment
that the assignee was to keep and perform all the
conditions of the lease made by the assignor.
The defendant went in possession tinder the assign-
ment and continued thereunder until February 1, 1916,
which was one month after the expiraton of the term.
He did not give the six months' notice provided in the
lease for a renewal. On that day, February first, Mrs.
Digiti
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Jones v. Cocomitros. 449
Misc.] County Court, Jefferson County, February, 1921.
Smith and the defendant executed an agreement for
the rental of the same premises for a period of five
years from January 1, 1916. The agreement stated
that the lease of 1910 had expired January 1, 1916,
and contained a further proviso that '* the parties
were desirous of renewing the lease/' It contained
the following clause which the court is asked to con-
strue: ** The party of the first part (Smith) does
lease and demise unto the said party of the second
part the premises described in said lease, dated
November 23, 1910, for a period of five years from
January 1, 1916, on the same terms and conditions as
expressed in said lease aforesaid, and each of the
parties hereto do hereby promise and agree to be gov-
erned by and to comply with said terms and conditions
as if said terms and conditions were set forth in detail
herein/^
Mrs. Smith died intestate August 19, 1919, leaving
two children of full age as her only heirs at law. On
December 3, 1919, the heirs, as owners, rented the
whole block, including the premises in question, to
the Ailing Rubber Company subject to the defendant's
lease for the term of five years from January 1, 1920,
at the agreed rental of $2,608 for the first year and
$4,000 per year for the remaining four years, payable
monthly in advance, with the privilege of a renewal
for five years longer at $4,500 per year. The lease
to the rubber company contained a covenant on the
landlord's part that the defendant's lease would
expire January 1, 1921, and that there was no right
of renewal.
Shortly after the execution of the lease to the Ailing
Rubber Company the defendant was notified in writ-
ing by the owners to pay that company the rent for
the occupied premises; was advised of the last men-
tioned lease and since that time the defendant has
29
Digiti
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450 Jones v. Cocomitros.
*■-
County Court, Jeflferson County, February, 1921. [Vol.114.
paid the rent to that company. The heirs notified the
defendant that the lease of February 1, 1916, would
expire January 1, 1921. The defendant notified the
heirs by proper notice of his desire to continue the
lease and duly complied with the provisions of the first
lease as to such notice.
Shortly after the alleged expiration of the defend-
ant's lease, the petitioner, as agent of the Ailing
Rubber Company, began this proceeding against the
defendant by petition and precept and claimed that
the defendant's lease of February 1, 1916, expired
January 1, 1921. The defendant served an answer
claiming in substance that by the terms of that lease
he was entitled to at least two years' further
extension.
It will be noticed that while the agreement of Feb-
ruary 1, 1916, provides for a rental period of five
years on the same terms and conditions as the first
lease, there is no mention of a renewal term except
as the same may be inferred. No question is raised
that all the provisions of the first lease are incor-
porated in the new lease except the right of renewal.
No proof was given showing the intention of the
parties except as the same may be spelled from the
leases themselves. The defendant was entitled under
the first lease by serving the proper notice to an exten-
sion of two years and possibly five years. By failing
to serve the notice the right of extension was lost. He,
however, continued in possession for one month with-
out objection from the landlord. The tenant was,
therefore, bound for another year. Whether the land-
lord was also bound is left in doubt by the agreed
statement of facts. Schuyler v. Smith, 51 N. Y. 309;
Smith V. Littlefield, Id. 539. It will be assumed, how-
ever, that the defendant had the right to hold over until
January 1, 1917. Instead of relying upon that right the
Digiti
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Jones v, Cocomitros. 451
Misc.] County Court, Jefferson County, February, 1921.
parties executed another agreement to extend the
period for five years from January 1, 1916, under the
same terms and conditions which gave to the defendant
all he could by any possibility be entitled to under the
terms of the first lease. Whether the agreement of
February first was a new lease or simply a renewal
lease will to my mind make considerable diflference
with the law of the case.
Where parties make an entirely new contract and
incorporate by reference all the terms and condi-
tions of another paper, it would seem that all sub-
stantial covenants are presumed to be inserted, but in
the case of a renewal lease of premises, and the pro-
visions of the old lease are continued in the new by
references only, it does not incorporate the renewal
provisions of the old lease unless that intention is
clearly expressed. I conclude that the lease of Feb-
ruary first was intended as a renewal lease in view of
the fact that the parties themselves called it such.
There being no specific provision in the second lease
for a renewal it would seem to be the intent of the
parties that the term would end on January 1, 1921.
Under the old lease the defendant had the possible
right to a continuance for ten years. By the execu-
tion of the February first lease he had the absolute
right to the full term of ten years in all; five years
under the first lease and five years under the lease in
question. The latter term was in fact a renewal. It
would seem that if the parties intended that the
defendant was to have a further term of two and
possibly five years, it would have been so stated.
The conclusion I have reached is sustained by author-
ity. Carr v. Ellism, 20 Wend. 177; Wi/nslow v. B. S
0. R. R. Co., 188 U. S. 646; MuMenbrinch v. Pooler,
40 Hun, 526 ; Pflum v. Spencer, 123 App. Div. 742 ; Cim-
nmgham v. Pattee, 99 Mass. 248 ; Syms v. City of New
Digiti
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452 Matter of Einstein.
Surrogate's Court, New York County, February, 1921. [Vol. 114.
York, 105 N. Y. 153 ; Chaplin Landl. & Ten. 230. Those
cases determine the doctrine nnder the circumstances
of this case that only one renewal was intended and
that the defendant has already had. Chaplin on Land-
lord and Tenant, supra, states the doctrine succinctly :
*'A covenant to renew a lease means to renew it once,
and not to renew it from time to time forever. In
other words, under such a covenant the renewal lease
need not contain a renewal clause. This principle
applies even though the covenant is to renew * under
the same covenants as in the original lease ' this pro-
vision contemplating a renewal upon the same cove-
nants excepting the covenant for a renewal.'^
It seems quite clear that it was the intention of the
parties when the February first agreement was made
to lease the premises to the defendant for a term of
five years only, without the privilege of a further
renewal and consequently the defendant's term
expired January 1, 1921. He was a holdover at the
time oi the commencement of this proceeding and the
petitioner is entitled to a final order awarding the
petitioner the possession of the premises.
Order granted.
Matter of the Estate of Henry L. Einstein, Deceased.
(Surrogate's Court, New York County, February, 1921.)
Transfer tax — transfers in contemplation of death — insnranea
(life)— assignments — Tax Law, § 220.
Where decedent, three days before he died, and aware that
he had but a short time to live, assigned to his son-in-law
certain life insurance policies, which in their original form
would have been taxable as part of his estate, it will be held
that the assignments were " made in contemplation of death **
Digiti
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Matter of Einstein. 453
Misc.] Surrogate's Court, New York County, February, 1921.
-
within the meaning of section 220 of the Tax Law, and they
are subject to a transfer tax on the amount actually received
by the beneficiary, discounted as of the date of the assignments.
Appeal from an order assessing the transfer tax.
. Goldsmith, Cohen, Cole & Weiss (Robert E.
Samuels, of counsel), for executors.
Lafayette B. Gleason (Schuyler C. Carlton, of
counsel), for state comptroller.
CoHALAK, S. This appeal is taken by the executor
and executrix of the estate of the above-named decedent
from the order fixing the transfer tax, on the ground
that four policies of life insurance of the face value of
$283,257.24 were reported by the appraiser as taxable
in that amount. The policies when issued by the com-
pany were made payable to the estate of decedent.
Three days before he died he assigned them to his
son-in-law. He had submitted to three operations for
cancer, from which he died on February 28, 1918, at
the age of sixty-eight years. He had been under the
constant care of a physician and nurse since the first
operation was performed in August, 1916, and had
been confined to his bed for a month and a half pre-
vious to his death. At the time of the execution of
the assignments his physical condition, as disclosed
by the testimony taken before the transfer tax
appraiser, was such that he must have been aware that
he had but a short time to live. It is significant that
the usual form of changing the beneficiaries in the
policies was not followed because of the length of time
which the adoption of this course would have involved.
The proceeds of the policies in their original form
would have been taxable as part of the assets of the
estate of decedent. Matter of Knoedler, 140 N. Y. 377.
Digiti
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454 Matter of Einstein.
Surrogate's Court, New York County, February, 1921. [Vol. 114.
* I ^— ^i^— — - — —
If no evasion of the imposition of the transfer tax
had been intended the decedent could have made the
gift to his son-in-law with much less effort and incon-
venience by executing a codicil to his will bequeathing
the avails of the policies to him. The appellants con-
tend that even conceding the assignments to have been
executed by decedent apprehending the near approach
of death the proceeds are not taxable. Two classes
of transfers during life are declared by section 220 of
the Tax Law to be taxable — (1) those which are
'* made in contemplation of the death of the grantor,
vendor or donor,'' and (2) those which are ** intended
to take effect in possession or enjoyment at or after
such death. '^ The beneficiary designated in an insur-
ance policy when issued or a subsequent assignee
acquires an interest at the time of the issuance or
assignment which is not a gift '* intended to take effect
in possession or enjoyment at • • • death.'' MaU
ter of Parsons, 117 App. Div. 321. In the present case,
however, the decedent by the assignments to his son-
in-law transferred interests or claims of value which,
in my opinion, were made *' in contemplation of death"
and are taxable. The appraiser has fixed the value of
the policies at the amount received by the beneficiary.
The appellants claim that the surrender value at the
date of the assignment is the taxable amount. I do
not agree with the latter contention. The surrender
value, as provided in the contract of insurance, is the
price agreed to be paid by the particular corporation
issuing the policy in case it is surrendered by the
assured. Such consideration does not establish the
market value. The true value was not capable of
determination at the date of the assignments. It
appears that the assignee and beneficiary actually
received the sum of $283,257.24. This sum discounted
as of the date of the assignments represents the value
Digiti
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Matter of Burnham. 455
Misc.] Surrogate's Court, Westchester County, February, 1921.
of the gift transferred. Since, however, the tax on the
amount by which the proceeds would be diminished by
the discount for three days is so small as to be negli-
gible, the value determined by the appraiser is
approved. The orde^p fixing tax will be affirmed.
Order aflSnned,
Matter of the Probate of the Last Will and Testament
of Matilda E. Burnham, Deceased.
(Surrogate's Court, Westchester County, February, 1921.)
Ezeeaton and administrators — contested probate — when execu-
tor will not be appointed temporary administrator — in-
competent persons — Code Oiv. Pro. § 2596.
Where the son, who is an epileptic, an inmate of a state
hospital and the only heir of testatrix, joins in an application
of his special guardians for the appointment of a temporary
administrator under section 2596 of the Code of Civil Pro-
cedure, pending the son's contested probate of the will before
a jury, which cannot be tried for some time, the application
may be granted as matter of discretion.
Upon the facts and the law applicable thereto it would be an
unwise exercise of discretion to appoint one of the executors
as such temporary administrator, even though he is a prominent
and responsible man of business, and though such a course
will cause the payment of an extra conmiission, a disinterested
and suitable person, an attorney and counselor at law, will be
appointed such administrator.
Application by the special guardians of an incom-
petent person for the appointment of a temporary
administrator.
Frederick P. Close and Edward S. Slater, special
guardians, for contestant.
Herman A. Schupp (Martin Conboy, of counsel) , for
proponents.
Digiti
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456 Matter of Burnham.
Surrogate's Court, Westchester Gonnty, February, 1921. [Vol. 114.
Slater, S. This is an application made by the
special guardians of Frederick W. Burnham, the
incompetent son and only heir of the testatrix, the
incompetent joining in the request, for the appoint-
ment of a temporary administrator under section 2596
of the Code of Civil Procedure. A special guardian
is more than an attorney. He is a trustee ad litem.
He must err, if need be, on the side of caution. In
bringing on a contest, and attempting to conserve
assets, he is answerable to the court, as well as to the
incompetent. In the instant case the special guard-
ians have only performed a proper duty. The order
in this matter would be intermediate in the proceed-
ing now pending to probate the will. Matter of
Shonts, 229 N. Y. 374. The application herein is
directed to the discretion of the court, the exercise of
which is founded upon any cause making for delay in
the granting of letters, or in probating the will. The
estate consists of bonds and mortgages, and other
securities, also certain real estate stated to be worth
$150,000. Care and control of the real estate and
collection of income is required.
A temporary administrator represents the court as
conservator to collect and conserve the assets of an
estate. He is named with authority to act under the
court's direction. Matter of Hanford, 113 Misc. Rep.
639; Code Civ. Pro. §§ 2596, 2597.
I have withheld decision for a reasonable time to
ascertain if the contest could be tried at the present
jury term, and I now ascertain it will not be tried.
The next jury term of the court will be held in May
and the trial may be prolonged until the autumn.
Matter of Wolfe, 181 App. Div. 35. Consequently, a
temporary administrator should now be placed in
charge of the estate to serve as custodian pendente
lite. Someone with authority should have control of
Digiti
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Matter of Burnham. 457
Misc.] Surrogate's Court, Westchester County, February, 192L
the real estate and custody of the securities for their
preservation. That delay has occurred and will occur
is uncontrovertible. That it may jeopardize the large
assets so that those ultimately entitled thereto may
suffer loss, is, I think, sufficient cause for granting this
application. The allegations of the petition fully
justify the granting of temporary administration pur-
suant to the Code of Civil Procedure. Matter of
Choate, 105 App. Div. 356.
As to the appointment of a suitable person to serve
as temporary administrator. Section 2596 of the
Code authorizes the surrogate, in his discretion, to
issue to one or more persons letters of testamentary
administration. The class of persons from whom the
surrogate may make his selection of a temporary
administrator is here clearly pointed out. Any one
qualified to act as an executor may be appointed by
the surrogate in the exercise of his judicial discretion.
He is not otherwise limited in his selection. Whether
the surrogate should appoint as the temporary admin-
istrator one who is named as executor in a disputed
will, or some other person, must be decided in each
case that presents itself on its own particular facts
and circumstances.
It has been my policy to appoint the executors
nominated in the will as the custodians of estates,
unless there is some peculiar cause or necessity to
look elsewhere. In Matter of Plath, 56 Hun, 223, Jus-
tice Willard Bartlett said: '* It is important that the
person entrusted with temporary administration
should be not only competent and honest, but disinter-
ested, and if he had to be either a relative, or a cred-
itor of the deceased, it might often be very difficult to
select a temporary administrator who would be
indifferent as between the parties to a contest among
Digiti
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458 Matter of Burnham.
Surrogate's Court, Westchester County, February, 1921. [Vol. 114.
applicants for permanent administration or a con-
test over the probate of a will/^
In the instant case the only heir at law is an incom-
petent son of the age of about forty-four years. He is
an epileptic. The special guardians representing him
make no request for the appointment of a particular
person as temporary administrator. The proponents,
the two executors nominated in the will, Herman A.
Schupp, of Westchester county, and Victor H. Thun,
of New York county, join in asking for the appoint-
ment of Mr. Thun. The contestant has refused to con-
sent; in fact, objects to his appointment. The exam-
ination of the witnesses to the will, had preliminary to
the filing of the contest, disclosed the fact that Mr.
Schupp, one of the executors named, had consulted
with the testatrix, and had prepared and attended
upon the execution of the will as her attorney. The
contestant who alleges lack of testamentary capacity
and undue influence, objects to Mr. Thun's appoint-
ment, because of his close association with Mr. Schupp
in the administration of the estate of William D.
Bumham, deceased, the father of the incompetent
contestant herein, and for the further reason that he
is named as co-executor with Mr. Schupp in the dis-
puted will. The estimated value of the estate of the
father, William D. Burnham, exceeds $500,000. The
major part of this estate was bequeathed to charity.
The father *s will bequeathed to the son only such
portion of the income upon $15,000 as the trustees
thereof, being Mr. Schupp and Mr. Thun, should, in
the exercise of their discretion, think proper to use for
his *' comfort, support and maintenance." The
corpus of the trust, that is the $15,000, and all unused
income passes to the library and reading room of the
village of Port Chester, as ultimate legatee. The
trustees state that such income is about $900 per
Digiti
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Matter of Burnham. 459
Misc.] Surrogate's Court, Westchester County, February, 1921.
annum. The incompetent son is, and has been for
years, confined in the Hudson River State Hospital,
at Poughkeepsie, a state institution. He was placed
there by his parents. The trustees of the trust under
the father ^s will are paying for his keep and care $6
per week or about $300 per annum. A like amount is
paid by municipalities for the care and keep of their
charity and indigent insane in the same and like insti-
tutions. This expenditure must be their idea of the
proper discretion to be used by them ** for the com-
fort, support and maintenance " of Frederick W.
Burnham, for his life, as required by the terms of the
trust, because the parents had made similar payments.
Surrogates' Courts have refused to appoint an
executor as temporary administrator when it was
alleged that such executor was unfriendly, or had
assisted in shaping the testamentary disposition of
the decedent, or was a party to the litigation ; or was,
from circumstances, not disinterested. Jones v. Ham-
ersley, 2 Dem. 286; Cornwall v. Cornwall, 1 id. 1;
Howard v. Dougherty, 3 Redf . 535 ; Matter of Plath,
supra. In Matter of Wanninger, 3 N. Y. Supp.
137, Surrogate Ransom refused to appoint an execu-
tor a temporary administrator because he was
charged with unduly influencing the decedent in
making the will. In Crandall v. Shaw, 2 Redf. 100, it
was held to be improper to appoint a person who was
a party to the litigation, although he was not person-
ally interested in the result, and that none but a dis-
interested party should be named. This ruling has
been followed in Matter of Steam, 9 N. Y. Supp. 445 ;
Matter of Eddy, 10 Misc. Rep. 211.
It cannot be truly said that Mr. Thun is disinter-
ested. He is a party to the contest proceeding. He
is now acting with Mr. Schupp as one of the executors
of and trustees under the will of the father of the
Digiti
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460 Matter of Burnham.
Surrogate's Court, Westchester County, February, 1921. [Vol. 114.
incompetent contestant herein. The payment of such
a meagre sum per week by this trustee and Mr.
Schupp, for the ** comfort, support and maintenance*'
of the incompetent, would not lead me to think that
they are doing their full duty to the son. A failure
to perform a full duty smacks of hostility, lack of
interest and lack of a desire to provide all the care
that the restricted sum of $900 per annum could buy.
As trustees of the $15,000 fund, nor as next friends,
they have not proceeded to ask for the appointment
of a committee of his person and estate. There is no
one to press, if need be, for the use of the whole income
of the fund. There is no one to legally ask that he
be given more comforts, and better maintenance, and
to compel it. There is no one to-day who is providing
comforts. It is clear to my mind that it is Mr. Thun's
duty to endeavor to carry out the expressed words of
the will of Matilda E. Burnham, the mother; there-
fore, he must necessarily represent interests hostile
to the contestant. I do not mean to have this inter-
preted as hostility of the heart and mind, but legal hos-
tility. The will of the decedent, the mother, leaves
nothing to the only child, who suffers from epilepsy.
The entire estate passes to nonrelatives and charity.
In fact, it appears that of all of the property of both
parents, amounting to nearly $1,000,000, only the
income of $15,000 is given to the sole heir. The con-
test for this estate is between legatees, not of the blood
of the testatrix, on one side, but strangers — and the
natural heir, the incompetent son, the disinherited
child of her body, on the other side — a child cursed
by heredity for all we know. He is helpless, except
as the law gives him the right to go before a jury and
assert — a statutory right — the right of inheritance
from parents, and attempt to prove that the will
should be set aside. The law is silent as to the revo-
Digiti
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Matter of Burnham. 461
Misc.] Surrogate's Court, Westchester County, February, 1921.
cation of a will when an incompetent and dependent
child is disinherited. It permits parents to will prop-
erty away from an incompetent and helpless offspring.
The Decedent Estate Law, sections 26 and 28, rebukes
and penalizes parents in certain cases for not provid-
ing for the support of their natural offspring. A will
made prior to marriage and birth of issue shall be
deemed revoked as to issue born thereafter, unless
such issue shall be provided for. Such issue is per-
mitted to take their natural inheritance and, if neces-
sary, sue to recover from devisees and legatees
therefor.
As I observe, Mr. Thun is in the same position as
Mr. Schupp finds himself. They both seek to pro-
pound a will that disinherits an only child, who is
incompetent. They are both placed in a position of
hostility to him. One of them as attorney attended
the execution of the paper writing, and both are execu-
tors of the father's will. It is fair to assume that
they work in harmony and that Mr. Thun as a tem-
porary administrator would be guided and counseled
by Mr. Schupp. In fact, Mr. Schupp is the attorney
of record for himself and Mr. Thun as such executors
in all proceedings relating to the father's estate. Mr.
Thun's administration of the estate as temporary
administrator pending the contest could not be impar-
tial. He could not well serve two conflicting interests.
To my mind, these facts and circumstances afford
sufficient reason why he should not be appointed as
temporary administrator against the protest of the
contestant. Such temporary collector represents the
interests of the legatees, if the will shall be admitted
to probate. In a case of rejection, he represents the
heir at law. An estate should not be turned over to
an expectant contestant to conserve during pending
litigation {Matter of Shonts, 229 N. Y. 374, 382) ; nor
Digiti
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462 Matter of Burnham.
Surrogate's Court, Westchester County, February, 1921. [Vol. 114.
to persons allied, interested, or close to those who are
charged with exercising undue influence. Crandall v.
Shaw, supra; Matter of Eddy, supra.
The power of the court to choose as temporary
administrator one not ** interested '' for such an
ad interim oflSce, ** rather than to give to either com-
petitor the advantage of possession of the assets,'' has
been recently upheld in Matter of Durban, 175 App.
Div. 688; affd., 220 N. Y. 589.
In view of the facts narrated here, as disclosed by
the papers, in argument, and upon the law of the cases
cited, I am constrained to believe that it would be an
unwise and unwarranted use of my judicial discretion
to choose Mr. Thun, even though he is a prominent and
responsible man in the business world.
It was stated by the proponents in argument that
the appointment of one other than Mr. Thun would
cause the payment of an extra commission. That is
true. If the proponents wish to moralize upon econ-
omy, permit me to say that fairness and justice are
far greater virtues. It is, in my judgment, better to
pay an extra commission than to work a possible hard-
ship upon, and create a disadvantage for a disinher-
ited child, by the court's appointment of one to con-
trol assets, who is not disinterested, and who would
be in a position hostile to the heir. Why should the
proponents be given the advantage, at the outset, of
possession of the assets! Justice Putnam, of our
Appellate Division, in Matter of Durham, supra, has
disposed of that question by saying it should not be
done. In proponents' desire for economy, they have
lost sight of the fact that, in the contest, the incom-
petent son cannot be awarded counsel fees {Forster v.
Kane, 1 Dem. 67), nor payment for the production of
alienists. Contestants are not assisted by the law.
The law rather frowns upon attempts to break wills.
Digiti
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Matter of Burnham. 463
Misc.] Surrogate's Court, Westchester County, February, 1921.
In support of the will, however, which upon its face
disinherits the son, the law affords the proponents tax-
able costs and all necessary disbursements and
expenses incurred in the attempt to sustain the will,
to be granted in the discretion of the court under sec-
tion 2746 of the Code of Civil Procedure. Thus, while
the incompetent son cannot employ counsel, the execu-
tors are permitted to employ learned, eminent,
resourceful, and expensive lawyers. Of course, this
places the contestant at once at a great disadvantage.
The proponents forget the principle of exact justice in
their pursuit of economy. Indeed, it might be well for
some one to consider whether a next friend, or the
state hospital authorities should not petition the
Supreme Court to name a committee of the incom-
petent's person and property, so that such committee
might take proper means to have the income upon the
trust fund created by the father's will, over and above
the six dollars per week now being expended for his
care, support and maintenance, used, if possible, to
employ counsel to assist the special guardians in the
contest. Having in mind the magnitude of the estate,
my judgment should not be clouded by false economy
from seeing that impartiality is observed in the mat-
ter of the control and conservation of the estate,
during the period of the contest for its possession.
I will appoint Henry E. Barrett, a disinterested and
suitable person, an attorney and counselor at law in
Westchester county, as temporary administrator to
take possession of all of the assets of the estate, upon
his taking the statutory oath of office, and filing a bond
equal to the amount of the personal estate.
Decreed accordingly.
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464 Mehlhop v. Central Union Tp.ust Co.
Supreme Court, February, 1921. [Vol.114.
Herman Mehlhop, Plaintiff, v. Central Union Trust
Company op New York, Defendant.
(Supreme Court, Bronx Trial Term, February, 1921.)
Mortgages — recovery of money paid for agreement extending
mortgage, which agreement defendant failed to execute —
failure of consideration — equity — when findings in fore-
closure action not res adjudicata.
One who had acquired the title to property at the sale on
foreclosure of his own mortgage was told that he could have
(Em extension for two years of the first mortgage upon the
property, held by defendant and almost due, by a payment of
$3,000 on the principal, interest and other charges, and in order
to avoid personal liability he transferred the title to plaintiff
who alone signed the extension agreement. The $3,000 was
paid to defendant by plaintiff from funds furnished by his
grantor but no part was ever returned by defendant, and it
never executed the extension agreement. In an action to fore-
close the first mortgage for its full amount, less the $3,000,
the only issue litigated was whether there had been an exten*
sion, whether the mortgage was due when the action was begun.
That issue was decided in favor of the plaintiff in the fore-
closure action and it became the purchaser of the property at
the sale. Held, that in an action to recover the $3,000, which
had been applied by defendant on its mortgage, on the ground
that the consideration had failed, the findings in the foreclosure
action with reference to the payment of the $3,000 related to
matters not litigated, and were not rea adjudicata in the present
action.
The foreclosure action was not conmienced until the two
years had been nearly completed, and the trial and sale did not
take place until after the lapse of such period, and in the
meantime the plaintiff herein had carried the property. Held,
that there was no controlling equity in defendant's favor, which
has all it could have had if it had not taken the $3,000, and that
plaintiff was entitled to recover such amount which had been
paid for something he did not get.
Action to recover moneys.
Eugene Cohn (Louis Salant, of counsel), for
plaintiff.
Digiti
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Mehlhop v. Central Union Trust Co. 465
Misc.] Supreme Court, February, 1921.
Larkin & Perry (Lewis H. Freedman, of counsel),
for defendant.
Gavegan, J. This is an action to recover moneys
paid to defendant, it being claimed that the considera-
tion has failed. One Haebler, for whom Mehlhop, the
plaintiff, is apparently acting, held a mortgage on
some lots in The Bronx. In December, 1915, he
acquired title to the lots as a result of foreclosing his
mortgage. The first mortgage, in amount $30,000,
was coming due on January 8, 1916. It was held by
defendant. Haebler called on defendant'? real estate
officer and was told he could have an extension for
two years (to January 8, 1918) if he paid off $3,000,
reducing the mortgage to $27,000. He was not on the
bond, but the mortgage was a lien on the land to which
he had acquired title. He was agreeable and the real
estate oflBcers of defendant sent him to the defendant's
lawyers, whose representative made a memorandum
of the principal terms and, later on, prepared and
mailed to Haebler an extension agreement as
arranged. Haebler never signed it, but, evidently for
the purpose of avoiding personal liability, tmsferred
title to this plaintiff. Their lawyer substituted plain-
tiff's name and address for Haebler 's and had plain-
tiff execute the extension. The necessary funds
having been provided by Haebler, the lawyer delivered
to the representative of the trust company the exten-
sion, signed by plaintiff, at the same time paying the
$3,000 on the principal of the mortgage, the interest
due on that day, January 8, 1916, the amount of the
disbursements w^hich the trust company would have
to make for revenue stamps and the fee of the lawyers
for drawing the extension.
No part of those moneys seems ever to have been
returned by the trust company and it never executed
30
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466 Mehlhop V, Central Union Trust Co.
Supreme Court, February, 1921. [Vol.114.
the extension. When it was discovered that plaintiff
and not Haebler had executed the extension defend-
ant's lawyers wrote a letter demanding that Haebler
execute it.
Subsequent developments are not very clear, until
some time in November, 1917 (less than two months
before January 8, 1918) when the trust company
began to foreclose. Mehlhop, a defendant in the fore-
closure action, plaintiff here, alone answered. His
answer is verified January 24, 1918. He pleaded that
the mortgage had been extended, that it was not due
when the action to foreclose began. The case was
tried in March, 1918. Inasmuch as the trust company
had never executed or delivered the extension, that
issue was decided for the trust company. The prop-
erty was sold under the foreclosure and was bought in
by the trust company.
Thereafter this action was begun to recover the
$3,000. It had been applied by defendant on the prin-
cipal of the mortgage and it foreclosed for $30,000
less the $3,000, for $27,000.
(1) Defendant relies on the findings in the fore-
closure action relating to the payment of $3,000 as on
account of the principal of the mortgage. In that
action the question litigated was whether there had
been an extension, whether the mortgage w^as due
when the action was begun. The defendant owner did
not take the position that the amount was less than
the mortgagee claimed. And there was no issue as to
the amount claimed. The findings which relate to the
$3,000 payment, its purpose and character, are not the
outcome of the determination of the issues in the
action. They relate to matters not there litigated and
are not binding between the parties. The defense of
res adjvdicata failed in this action.
(2) As to the argument based upon the assert on
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Mehlhop v. Central Union Trust Co. 467
Misc.] Supreme Court, February, 1921.
that a parol extension resulted from the arrangements
made with Haebler: Passing by the fact that the
mortgagee, this defendant, successfully contended in
the foreclosure action that the mortgage had not been
extended, the testimony as to what happened when
Haebler called shows that a parol contract of exten-
sion had not been made. The representative of the
mortgagee, as well as Haebler, did not regard those
negotiations as a contract but they contemplated the
subsequent execution of a contract in writing. Appar-
ently they did not go into details as to the clauses to
be contained in it. There is no testimony warranting
a conclusion that Haebler knew or was informed that
it would read to make him personally liable on the
debt. It is probable that his discovery of that clause
led him to substitute plaintiff in his stead. Further-
more, such parol contracts of extension are unusual.
It is usual to regard the matter as not being closed
until the execution and delivery of the written
agreement.
(3) The equities are not with the mortgagee though
the foreclosure was not commenced until the two years
had been nearly completed and the trial and sale did
not occur until after such period had elapsed. The
plaintiflf had carried the property. The mortgagee,
which has the property and the bond, lost nothing by
waiting. It gained by the amount of carrying charges
paid by plaintiff. While plaintiflf paid the same it
waited, its representatives probably hoping that
plaintiff's chance of getting back the $3,000 would
grow dim with time. He had not received what had
been bargained for but was in no position to imme-
diately sue to recover the money paid; for the mort-
gagee had the whip hand. His safety was dependent
upon the good will of the mortgagee. He could safely
do nothing but wait so long as the Statute of Limita-
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468 Isaacs v. Equitable Life Assurance Society.
Supreme Court, February, 1921. [Vol.114.
tions permitted. Recovery for failure of considera-
tion implies unjust enrichment to the defendant.
Where time has not worked equities clearly against
the plaintiff lapse of time is material only in consider-
ing whether the Statute of Limitations has expired.
There being no controlling equity in defendant's
favor plaintiff is entitled to recover the $3,000, as he
was at the moment he paid for something he did not
get. While the $3,000 was intended to be applied to
reduce the mortgage, it was to be paid only if the
mortgage was extended. On no other condition did
the defendant have the right to accept it in reduction
of the mortgage. At that time and at all subsequent
times the mortgagee acted voluntarily. It held the
$3,000 and had the right to foreclose. But it did not
change the equities by holding the money and waiting
its best interest as well as its convenience. And it lost
nothing by waiting. It has the property and the bond,
or a deficiency judgment, all it could have had if it had
not taken the $3,000.
Verdict will be directed for the plaintiff.
Judgment for plaintiff.
LuciMJBs G. Isaacs, Plaintiff, v. The Equitable Life
Assurance Society of the United States, Defend-
ant.
(Supreme Court, Richmond Trial Term, February, 1921.)
Insurance (life) — when company bound by delivery of policy to
assured although conditions of policy are not complied with —
actions — evidence — contracts.
The common practice of insurance companies placing in the
hands of agents policies which appear on their face to be bind-
ing contracts of insurance, but which are intended to be effec-
tive only on compliance with certain preliminary conditions,
is not to be commended, and if the agent deliver the policy
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Isaacs v. Equitable Life Assubance Society, 469
4 ^
Misc.] Supreme Court, February, 1921.
without requiring compliance with such conditions, the insur-
ance company is in justice bound by the policy.
Where in an action to recover on a policy of insurance issued
by defendant on the life of plaintiff's husband within a month
of his death, the evidence is that the delivery of the policy by
defendant's soliciting agent to the insured, who never signed
the application for the policy, and his acceptance thereof, were
with intent that it should at once become a contract and the
first premium paid later, and it further appears that the
attention of the insured, though he had previously taken out
other insurance with defendant, was not called to any provision
of the policy requiring the signing of an application, or the
payment of the first premium, or any other preliminaries, and
that the agent had apparent authority to deliver the policy, it
became a contract binding upon both parties, and as against
the defense that the policy had no valid inception, plaintiff was
entitled to recover the amount of the policy less the amount of
the first premium, with interest from the date when the pro-
ceeds became due and payable.
Action to recover the proceeds of a policy of life
insurance.
Carl D. Isaacs (Montague Lessler, of counsel), for
plaintiff.
Alexander & Green ( Clifton P. Williamson and
Peter C. Mann, of counsel), for defendant.
Benedict, J. This is an action to recover the pro-
ceeds of a policy of insurance on the life of Max M.
Isaacs, deceased husband of the plaintiff. The
defendant resists payment on the ground that the
policy never had a valid inception, because the appli-
cation was never signed by the assured, and because
the first premium was not paid at the time of the
assured 's death.
Briefly stated the facts were that one Graham, a
soliciting agent of defendant, had in December, 1919,
obtained from the assured an application for a $3,000
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470 Isaacs v. Equitable Life Assurance Society.
Supreme Court, February, 1921. [Vol. 114.
policy, which was issued and delivered and the first
premium paid. Graham had also caused to be issued
a $2,000 policy, which he offered to assured at the
same time, and which assured accepted, signing the
application therefor and paying the first premium.
Subsequently, on January 18, 1920, without further
order or application by the assured, Graham caused
to be issued by the defendant an additional policy on
the life of the assured for $3,000, based upon the
examination made upon the first application above
mentioned, which policy Graham offered to the
assured on p^anuary 17, 1920. Just what took place
at the time of this offer is in dispute. A disinterested
witness, called on behalf of plaintiff, gave testimony
which would justify the inference that assured
accepted this additional policy, and that it was agreed
between him and Graham that he should pay the first
premium at a later date. Graham, on the other hand,
gave testimony to the effect that he left the policy with
assured pending the latter 's decision as to whether or
not he would accept it. There is no dispute that the
policy was handed to and left with assured, together
with an application to be signed by him, a copy of
which w^as attached to the policy. Very shortly after-
ward assured became ill and died of such illness early
in February, 1920. The application for the policy
was never signed and the first premium never paid.
The form of application contained the following
provision: *'I hereby agree that the policy issued
hereon shall not take effect until the first premium has
been paid during my good health; that no agent or
other person except the President, a Vice-President,
the Secretary or Treasurer of the Society [the
defendant] has power to make or modify any contract
on behalf of the Society or to waive any of the
Society's rights or requirements, and tb^t uo waiver
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Isaacs v. Equitable Life Assurance Society. 471
Misc.] Supreme Court, February, 1921.
shall be valid unless in writing and signed by one of
the foregoing officers."
The policy itself contains the following clauses,
which are material to the present inqury :
'* The Contract. This policy, and the application
therefor, a copy of which is endorsed hereon or
attached hereto, constitute the entire contract between
the parties. '*
** Agents are not authorized to modify, or in the
event of lapse, to reinstate this policy, or to extend
the time for payment of any premium or instalment
thereof. '*
** This insurance is granted in consideration of the
payment in advance of Thirty-five and 28/100 Dollars
and of the payment quarterly thereafter of a like
sum,*' etc.
** Grace. A grace of thirty-one days, subject to an
interest charge at the rate of 5% per annum will be
granted for the payment of every premium after the
first, during which period the insurance hereunder
shall continue in force.'' Italics are mine.
These several provisions appear on the inside of the
policy on pages 2 and 3.
At the conclusion of the trial both parties moved
for the direction of a verdict, thus submitting all ques-
tions both of law and fact to the court for decision.
Decision of these motions was reserved by consent of
counsel for both parties.
I have reached the conclusion that a verdict should
be directed for the plaintiff for the amount of the
policy, less the first premium, and interest from the
date when the same became due and payable.
So far as the issue of fact above outlined is con-
cerned, the weight of evidence seems to me to be in
favor of the plaintiff. Plaintiff's witness was disin-
terested, while defendant's witness, who is still in its
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472 Isaacs v. Equitable Life Assurance Society.
Supreme Court, February, 1921. [Vol.114.
employ, and who may be affected financially by the
result of this action if he disobeyed his instructions,
cannot be regarded as being disinterested. I, there*
fore, decide that the policy was delivered by Graham
and accepted by assured with intent that it should
take effect at once, and that the payment of the first
premium should be deferred for a short time.
This brings me to the next question, whether such
action on the part of Graham was effective to give a
valid inception to the policy in the face of the provi-
sions contained therein and in the application, which
I have above quoted. If there had been evidence that
the attention of assured had been in any way called to
the said provisions, or to the necessity of signing the
application and paying the first premium before the
policy would take effect, I should say without hesita-
tion that the policy never had any inception as a con-
tract. But such was not the case. The policy and the
application appear to have been handed to assured in
an envelope. Part of the envelope was transparent,
so that the number and amount of the policy and the
name of the assured, amount of premium and other
matters indorsed on the outside of the policy were
visible, and there was printing on the back of the
envelope. There was nothing, however, visible on the
outside to call assured 's attention to the clauses and
provisions above quoted, and there was no evidence
that his attention was called thereto in any other way.
That assured had previously taken out other insur-
ance with defendant, and so may have acquired
knowledge of the provisions contained in other poli-
cies and applications does not, as it seems to me,
affect the question. It was what was done with respect
to this particular transaction, and only that, which is
material in determining the rights of the parties.
Bodine v. Exchange Fire Ins. Co., 51 N. Y. 117, 122.
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Isaacs v. Equitable Life Assurance Society. 473
Misc.] Supreme Court, February, 1921.
As the defendant intrusted tihis fully executed
policy to Graham for delivery, I think he must be con-
sidered as clothed at least with apparent authority to
deliver it upon the terms and under the conditions
upon and under which I have found, as above stated,
that he did deliver it; and, as assured 's attention was
not called to the provisions limiting Graham's
authority, the defendant is bound by the policy.
This seems to me to be the result of the leading
authorities on this subject. In the latest pronounce-
ment by our Court of Appeals, to which my attention
has been called, Whipple v. Prudential Ins. Co., 222
N. Y. 39, Collin, J., writing for an unanimous court,
said: ** We are, therefore, to determine whether or not
there was any evidence that the defendant waived its
right that the policy should remain ineffective until the
payment of the first premium. Our conclusion depends
upon the existence or non-existence of evidence tending
to prove (a) that J. W. Wilson, who delivered the
policy, had authority to waive that right, and (b) that
his acts and language effected the waiver. '' Pp. 44, 45.
In the present case the first condition is met, as
already indicated, by the fact that the defendant by
intrusting the executed policy to Graham clothed him
with apparent authority to make the waiver {McClel-
land V. Mutual Life Ins. Co., 217 N. Y. 336, 346 et seq.;
Ames V. Mamhattam, Life Ins. Co., 40 App. Div. 465 ;i
affd., on opinion below, 167 N. Y. 584; Bodine v.
Exchange Fire Ins. Co., 51 id. 117, 123), assured not
being affected with notice of any limitation upon such
authority, as I have pointed out. The present case is
distinguishable from Allen v. Oerman American
Insurance Co., 123 N. Y. 6, by the fact that there the
person to whom the policy was intrusted for delivery
was a mere broker not in defendant's general employ-
ment. See Bernard v. United Life Ins. Assn., 17 Misc.
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474 Isaacs v. Equitable Life Assurance Society.
Supreme Court, February, 1921. [Vol. 114.
Rep. 115. The second condition is met by plaintiff's
proof of the interview between Graham and the
assured at the time of the delivery of the policy above
referred to. The present case is distinguishable from
Russell V. Prudential Insurcmce Co., 176 N. Y. 178, by
the fact that in that case assured had signed the appli-
cation and hence must in the absence of proof to the
contrary be presumed to be familiar with the contents
thereof. P. 188. In the present case the policy if it
became a contract at all, became so at the moment of
delivery. There being evidence that the delivery and
acceptance were with intent that it should at that
time become a contract, and the attention of assured
not having been then called to any provision therein
requiring the signing of an application or the pay-
ment of the premium or any other preliminaries, and
Graham having apparent authority to make delivery,
the contract thereupon became binding on both par-
ties. The stipulations intended to prevent the policy
from becoming effective until the signing of the appli-
cation and payment of the first premium could not
themselves become effective until the policy became a
contract, and they could be waived by delivery and
acceptance of the policy with intent that it should
take effect without compliance therewith. Whipple v.
Prudential Ins. Co., supra, 43; Bodine v. Exchcmge
Fire Ins. Co., 51 N. Y. 117.
The common practice of insurance companies of
placing in the hands of agents policies which appear
on their face to be binding contracts of insurance, but
which are intended to be effective only on compliance
with certain preliminary conditions, is not one to be
commended, and if, in such a case, the agent deliver
the policy without requiring compliance with such
conditions, the insurance company ought in justice to
be bound by the policy. Church v. LaFayette Fire Ins.
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Stxjbges v. Sttjrgbs. 475
Misc.] Supreme Court, February, 1921.
Co., 66 N. Y. 222; Squier v. Hanover Fire Ins. Co., 18
App. Div. 575, 578.
A verdict is accordingly directed for the plaintiff
for the amount of the i)olicy less the amount of the
first premium, and interest from the date when the
proceeds became due and payable.
Judgment accordingly.
Ella M. Sturges, Plaintiff, v. William A. Stltrges,
Defendant.
(Supreme Court, Monroe Special Term, February, 1921.)
Arrest — when motion to vacate an order of, denied — under-
takings—bail— Code Oiv. Pro. §§ 660, 576.
An undertaking on arrest given under sections 550 and 575
of the Code of Civil Procedure by the defendant in an action
for separation, is in the nature of equitable bail to insure the
payment of alimony as provided in the final decree, and
defendant's motion to vacate the order of arrest and to dis-
charge the undertaking on the ground that the case has been
tried and a decree entered will be denied.
Motion to vacate order of arrest.
Melnemey & Bechtold, for motion.
H. H. Cohen, opposed.
EoDBNBBCK, J. The defendant was arrested nnder
section 550 of the Code of Civil Procedure during the
pendency of an action for separation and gave an
undertaking to be released from arrest. He now
moves to vacate the order of arrest and discharge the
undertaking on the ground that the trial has been had
and a decree of the court made. The undertaking in
this action was given under sections 550 and 575 of
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476 Sturges v. Stubges.
Supreme Court, February, 1921. [Vol. 114.
the Code to insure the observance of the decree in this
action. Section 550 is a substitute for the old writ of
ne exeat which cannot be definitely traced to its source
(Story Eq. Juris. 1464 et seq.; 11 Kent Com. 31;
Beames Ne Exeat Regno) and is interesting only in
this state as illustrating the cases in which it was
resorted to and the tenacity with which a learned pro-
fession clings to ancient procedure. The writ was not
abolished until 1876 when the first part of the Code of
Civil Procedure was adopted (§ 548). There are other
writs in the Code of Civil Procedure just as antique in
their procedure as the writ of ne exeat and yet they
are continued from year to year and survive in the
proposed revision of the Code of Civil Procedure with
only a change in name to plague the practice of the
law. Relief under section 550 like that under the old
writ of ne exeat is in the nature of equitable bail. The
purpose of it is to insure the presence of the party in
the state to answer the decree of the court. Under the
common law a subject could leave the domain at will
and the writ of ne exeat was created first as a prerog-
ative writ to restrain him within the realm to aid the
state in time of need and later it was applied by the
Court of Chancery to equitable cases. When the writ
was in existence it was available in actions for divorce
and separation {Denton v. Denton, 1 Johns. Ch. 366,
441 ; Boucicault v. Boucica/ult, 21 Hun, 431 ; Bush/nell v.
Bushnell, 15 Barb. 399; 29 Cyc. 387; Story Eq. Juris.
§§ 1472, 1473) and under section 550 it may be prop-
erly resorted to in the same kind of actions. Gardiner
V. Gardiner, 3 Abb. N. C. 1. The object is to furnish
a complete remedy to enforce the decree which the
court otherwise would be powerless to do and to pre-
vent the decree from being defeated by fraud. People
V. Tweed, 5 Hun, 382, 389: Story Eq. Juris. § 1472.
The undertaking in this case provides that the
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Pfaudler v. Pfaudler Co. 477
Miac.] Supreme Court, February, 1921.
defendant will obey the direction of the court or of an
appellate court contained in an order or a judgment
requiring him to perform the acts specified in the
order ; or, in default of his so doing, that he will at all
times render himself amenable to proceedings to
punish him for the omission. Code Civ. Pro. § 575,
subd. 1. On its face and in accordance with the prac-
tice, the undertaking is in the nature of equitable bail
to insure the payment of the alimony provided in the
decree and cannot be discharged as claimed on this
motion after the decree has been granted because
given while the action was pending. The motion is
denied, with ten dollars costs.
Motion denied, with ten dollars costs.
John M. Pfaudler, Plaintiff, v. The Pfaudlbb Com-
pany, Defendant.
(Supreme Court, Monroe Special Term, February, 1921.)
P]«ading — when complaint demnrrable — corporationa — nae of
snmame— Civil Rights Law» §§ 60, 61.
In the absence of equitable considerations, a complaint
against a corporation that its use of plaintiff's surname for
advertising or trade purposes constitutes a violation of the
statute (Civil Rights Law, H 50, 51), which prohibits such use,
is demurrable on the ground that under the statute alone, the
plaintiff is not entitled to an injunction or damages for such
alleged use of his surname.
Motion for judgment on demurrer.
McGuire & Wood (J. Sawyer Fitch, of counsel), for
demurrer.
Mclnerney & Bechtold, opposed.
Digitized by
Google
478 Pfaudler v. PfaudxiEr Co.
Supreme Court, Februaxy, 1921. [Vol.114.
RoDENBECK, J. The cause of action alleged in the
complaint rests upon the question whether or not the
use of the plaintiff's surname by the defendant con-
stitutes a violation of the Civil Rights Law (§§ 50, 51)
which prohibits a corporation from using the name of
a person for advertising purposes or for purposes of
trade. There are no equitable considerations stated
in the complaint. There is no charge of unfair com-
petition or that the plaintiff has been specially injured
in his character, reputation or property. It is alleged
that the plaintiff gave the defendant permission to
use the name ''Pfaudler*' in connection with the words
*' Vacuum Fermentation Company" for a period of
twenty-five years but this language is not to be con-
strued as equivalent to an allegation that a contract
existed between the parties under which the defend-
ant agreed not to use the word ''Pfaudler'' in connec-
tion with any corporation. Nor is there any charge of
fraud. The sole question is whether or not the Civil
Rights Law prohibits the defendant from using the
plaintiff's surname. The word "name" as used in the
statute must mean a person's full name. It was evi-
dently the purpose of the legislature to prevent the
use of the full name of a person by which alone he
could be identified. This identification is possible in
the case of the use of a portrait or picture, the use of
which the statute also prohibits. It is not possible
where only the surname of a person is employed. The
word "Pfaudler" does not identify the plaintiff as
the person whose surname has been used except to
those persons who may know the origin of the company
and even then it is impossible to say whether the word
refers to the plaintiff or to his brother Casper, both of
whom were at one time connected with the defendant's
predecessor. No cause of action is stated under the
Civil Rights Law and none existed at common law
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Pfaudler v. Pfaudler Co. 479
Misc.] Supreme Court, February, 1921.
under the facts alleged in the complaint. Roberson
V. Rochester Folding Box Co., 171 N. Y. 538. The his-
tory of the origin of surnames illustrates why such an
action would not lie at common law. Surnames did
not have the permanence and importance in ancient
times that they have today. Sons commonly adopted
or were given a surname differing from that of the
father and arising from some peculiarity of mind or
body or place of abode. It was not until registration
of names was required for purposes of birth, marriage
and death that the surname became the established
part of the name and the given name varied for pur-
poses of identification until now both names and some-
times a middle name is necessary to identify persons
having the same surname. Matter of Snooh, 2 Hilt.
566; Smith v. U. S. Casualty Co., 197 N. Y. 420. An
action at common law may have existed for the use
of a person's name, picture or portrait under certain
circumstances involving an injury to the character,
reputation or property of the person but not under
the circumstances alleged in the complaint. If this
were not the rule, common surnames like Smith, Jones
or Brown could not be used without entailing claims
for damages on the part of every person having these
names. There is no legal objection to any person
assuming the name ''Pfaudler" {Olin v. Bate, 98 111.
53; Smith v. U. S. Casualty Co., supra, 428) and there
should be none on the part of a corporation in the
absence of actionable equitable considerations. The
plaintiff is not barred from using his name in connec-
tion with that of a corporation provided the use does
not involve unfair competition. Higgins Co. v. Eig-
gins Soap Co., 144 N. Y. 462, 468; Cutter v. Gudehrod
Bros. Co., 36 App. Div. 362 ; Burrow v. Marceau, 124
id. 665, 669; Burgess v. Burgess, 3 De Gex, M. & G.
896. The plaintiff has no such exclusive right to the
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480 LooMis V. Lehigh VAiiLEY Eailroad Co.
Supreme Court, February, 1921. [Vol. 114.
use of the surname **Pfaudler" as to bar others from
using it under circumstances that do not involve a
legal or equitable injury. 23 Cyc. 271. Having per-
mitted the corporation to use the surname for a period
of twenty-five years, he cannot now prevent its use by
the corporation as a going concern. Cutter v. Gude-
hrod Bros. Co., 44 App. Div, 605; affd., 168 N. Y. 512.
In the absence of equitable considerations therefore
the plaintiff is not entitled under the statute alone to
an injunction or to damages against the defendant for
the use of the word '* Pfaudler,^* and the demurrer
should be sustained, with leave to the plaintiff to
amend within twenty days after the service of a copy
of an order in accordance herewith and the payment
of costs.
Ordered accordingly.
Leslie G. Loomis and Leslie G. Loomis, Jr., Plaintiffs,
V. Lehigh Valley Railroad Company, Defendant.
(Supreme Court, Ontario Special Term, February, 1921.)
Pleading — when defendant not entitled to an order to compel
plaintiif to amend complaint — carriers — actions.
Where a complaint, as a second cause of action, alleges that
plaintiffs tendered to the defendant certain shipments of mer-
chandise for transportation to various points upon its own
and connecting lines; that defendant supplied for such ship-
ment ordinary box cars, but that plaintiffs, in order to load the
cars, either to mimimum or maximum capacity, were com-
pelled to equip them with inside or grain doors or bulkheads,
at an expense of a specified sum, defendant is not entitled to
an order requiring plaintiffs to amend the complaint by sepa-
rately stating and numbering the causes of action contained in
the second cause of action, and defendant'js motion for such
an order will be denied.
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LooMis* V. Lehigh Valley Railroad Co. 481
Misc.] Supreme Conrt, February, 1921.
Motion on behalf of the defendant in the action
above entitled for an order requiring the plaintiffs to
amend the complaint by separately stating and num-
bering the causes of action contained in the second
cause of action alleged therein.
Myron D. Short, for plaintiffs.
Hubbell, Taylor, Goodwin & Moser (Frank E.
Devans), for defendant.
Stei>hbns, J. The plaintiffs allege for their second
cause of action, in brief, that they tendered to the
defendant certain shipments of grain, produce, vege-
tables and fruits in car lots for transportation to vari-
ous points upon its own and connecting lines; that
defendant supplied for such shipments ordinary box
cars, and that they were compelled, in order to load
the cars either to minimum or maximum capacity, to
equip said cars with inside or grain doors or bulk-
heads at an expense of eighty-seven dollars and sixty-
eight cents.
It does not appear from the complaint, strictly
speaking, that there is more than one cause of action^
involved in the second cause of action alleged although
it may be easily inferred ; but for the present purpose
it will be assumed that there are, as stated, in defend-
ant's brief about one hundred and seventy different
instances in this and a companion action of alleged
failure by the defendant to furnish suitable cars to
the plaintiffs and that these repeated failures furnish
the basis for the plaintiffs' total demand, in the two
actions.
I am unable to approve the defendant's position, so
earnestly presented by counsel, that each failure on
the part of the defendant to provide a car adequately
31
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482 LooMis V. Lehigh Vai^ley Raileoad Co.
Supreme Court, February, 1921. [Vol.114.
equipped for its particular purpose constitutes a sepa-
rate cause of action so that the plaintiffs must split
their aggregate claim into its multitude of component
fragments.
It is immaterial whether the duty of the defendant
to furnish suitable cars has a conmaon law or statutory
origin {Loomis v. Lehigh Valley R. R. Co., 208 N. T.
312; 240 TJ. S. 43) ; the obligation in either event had a
common source; the relation between the plaintiffs
and the defendant in each individual shipment was
identical, that of shippers on the one part md carrier
upon the other; each alleged failure by the defendant
in its duty is essentially the same and like means were
taken by the plaintiffs on each occasion to render the
cars serviceable and the same legal remedy is avail-
able to the plaintiffs in each case for their reimburse-
ment; the variant elements relate to the destination
of the shipment, character and weight of it, the num-
ber, height and location of the bin doors supplied by
the plaintiffs and i)erhaps other factors mentioned in
the freight tariffs that enter into the problem of the
amoxmt to be allowed by a carrier to a shipper for
such services as the plaintiffs may establish that they
have performed.
In Loomis v. Lehigh Valley R. R. Co., supra, the
complaint was substantially the same as here and
while the Court of Appeals stated that there were two
causes of action alleged in the complaint, one for the
items disbursed in intrastate shipments and one for
those in interstate shipments, there was no suggestion
that each item in either class of shipments constituted
a separate cause of action; it is probable, however,
that no ruling in this respect was requested or made.
The conclusion that I have reached is that the
defendant is not entitled to have the separate items
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Butler v. Shbbwood. 483
Misc.] Supreme Court, February, 1921.
of plaintiffs' claim stated and numbered as separate
causes of action; both as a legal and as a practical
proposition it is no differently situated than if it was
defending plaintiffs' first cause of action only which
alleges as the ground of recovery the value of lumber
furnished at different times at the request of the
defendant ; as above indicated the items that measure
the extent of defendant's liability under the second
cause of action have a common origin no less than if
they were of contractual origin.
This result is in harmony with that in Langdon v.
New York, L. E. <& W. B. Co., 15 N. Y. Supp. 255,
where a similar motion in a situation quite like the one
presented here was denied. The motion is denied.
Motion denied.
Walter C. Butler, Plaintiff, v. Edward H. Sher-
wood, Individually and as Administrator, etc., of
Ella F. Sherwood, Deceased, Defendant.
(Supreme Court, Cortland Trial Term, February, 1921.)
Deeds — when plaintiif entitled to judgment declaring the instru-
ment null and void — actions — Statute of Wills — gifts.
By a writing in the form of and acknowledged as a deed,
the grantor quit-claimed to her husband, to whom the instru-
ment was delivered on the day of its date, all real estate of
whieh she should die seized, and also assigned to him all of
her personal property. By the instrument, she reserved full
control and dominion over her property, and it was left
entirely discretionary with her whether at her death anything
should be left to her grantee. Held, that in an action by the
brother and only next of kin of the grantor, to have the instru-
ment annulled on the ground that it was an attempt by the
grantor to dispose of her property in a form and manner con-
Digiti
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484 Butler v. Sherwood.
Supreme Court, February, 1921. [Vol. 114.
trary to the Statute of Wills, plaintiff was entitled to a judg-
ment declaring the instrument null and void.
The instrument, in the circumstances disclosed, can be sus-
tained neither as a gift inter vivos nor as a gift cattsa mortis.
Action to nullify an instrument in the form of a
deed.
Levi E. Chase, for plaintiff.
Willard A. Bill, for defendant.
TuTHiLL, J. The plaintiff, a brother of Ella F. Sher-
wood, deceased, and her only heir at law and next
of kin, brings this action to nullify an instrument
made by Mrs. Sherwood to her husband, the defend-
ant Edward H. Sherwood, January 25, 1916. The
instrument is in the form of a deed, acknowledged and
witnessed, and recites that the same is in considera-
tion of one dollar, love and affection, and other good
and valuable considerations, and remises, releases and
forever quitclaims to her husband, the defendant, all
her real estate wheresoever situate in the United
States of America, of which she shall die seized, and
also assigns to him all of her personal property of
whatever name or kind the same may be and whereso-
ever situate. Continuing, the instrument provides:
** This conveyance and transfer are made upon the
condition that the party of the second part, my hus-
band, survive me and the same is intended to vest and
: take effect only upon my decease, and until said time,
! the same shall be subject to revocation upon the part
j of the party of the first part.'' It also provides that
the second party shall pay five dollars a week to the
stepfather of Mrs. Sherwood during his lifetime if he
survives her. His death, however, occurred before
Mrs. Sherwood's, she having died January 6, 1920.
The plaintiff assails the instrument and asserts that
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BuTLEn V. Sherwood. 485
Misc.] Supreme Court, Februarji 1921.
it was an attempt by the decedent to dispose of her
property in a form and manner contrary to the Statute
of Wills, and is, therefore, void. The evidence shows
that the decedent was a woman of strong mind and
determination and adverse to making a will, having
been a party to a contest under a will of her former
husband ; that at the time she executed the instrument
in dispute, she was suffering from cancer and imme-
diately thereafter submitted to an operation receiving
relief therefrom, but died of the same disease about
four years later.
The plaintiff also disputes the delivery of the
instrument, but I am satisfied from the evidence that
it was delivered by Mrs. Sherwood to her husband
immediately after it was executed and on the day it
bears date.
The evidence also shows, otherwise than by the
document itself, that the decedent intended her hus-
band at her death should be the sole recipient of her
bounty to the exclusion of her kin. The question is,
whether she has legally accomplished her purpose.
The way was simple but it was not Mrs. Sherwood *8
way. She proposed to contravene the conventional
manner of testamentary disposition and effectuate
her purpose by deed. That a person may ordinarily
do as they wish with their own is conceded, but the
manner of accomplishing the same is subject to
limitations.
A careful reading of the clause quoted above is con-
vincing that the grantor did not intend to convey any
present estate, title or possession to the grantee.
Under the instrument it was left entirely discretion-
ary with her whether at her death anything should be
received by the grantee. She reserved full control and
dominion over her property. She used most apt lan-
guage to retain the title and possession as she said
Digiti
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486 BuTLEB V. Shbbwood.
Supreme Conrt, February, 1921. [Vol. 114.
**the same is intended to vest and take effect only
upon my decease, and xmtil said time, the same shall
be subject to revocation.'* She withheld the vesting
which gives a fixed and indefeasible right to property;
also she withheld possession as she gave no absolute
present or future right of enjoyment. An estate is
vested in possession when there exists a right of
present enjoyment; and is vested in interest when
there is a present fixed right of future enjoyment.
Under the instrument the grantee was given neither.
He was given nothing which he could enforce as
against the grantor nor those claiming under her. She
could have conveyed or transferred any or all of her
real or personal property and given good title as noth-
ing had vested in the grantee or passed to him under
the instrument. He had not even a prospective
interest legal or equitable, present or future, in any of
the property which was not extinguishable by the
grantor. In legal effect the instrument made no
change in title during Mrs. Sherwood's lifetime. The
property remained hers for all purposes until she
died. The instrument by its terms was ambulatory
and conferred no present rights and was to take effect
on the grantor's death, but was shorn of the requisite
formalities to make it a testamentary disposition. The
effect of such an instrument is well expressed by the
court in Turner v. Scott, 51 Penn. St. 126, 134: **The
doctrine of the cases is, that whatever the form of the
instrument, if it vest no present interest but only
appoints what is to be done after the death of the
maker, it is a testamentary instrument. It signifies
nothing that the parties meant to make a deed instead
of a will." See, also. Boon v. Castle, 61 Misc. Eep,
474; Evans v. Evans, 69 id. 86; Leonard v. Leonard,
145 Mich. 563; Leaver v. Gauss, 62 Iowa, 314; Aldridge
Digiti
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BuTiJBR V. Sherwood. 487
Misc.] Supreme Court, February, 192L
V, Aldridge, 202 Mo. 565; Wilson v. WUson, 158 111.
567.
The defendant contends that the instrument may be
considered a gift. Certainly it cannot be sustained as
a gift inter vivos as the alleged donor did not divest
herself of the property and the donee acquired no
legal title to it. It did not take effect immediately and
irrevocably during the donor *s lifetime. It was not
executed and it required a further condition, the death
of the donor, to make it complete, as the instrument
expressly stipulated that it should not take effect until
the grantor 's death. 20 Cyc. 1192. Neither do I believe
the instrument can be sustained as a gift causa mortis.
It cannot as to the decedent *8 real estate for the
decided weight of authority is that '*Real estate, in
the very nature of things, cannot be the subject of
gift caiisa mortis. That species of gift is confined
strictly to personal property. ^ ^ 20 Cyc. 1242, and cases
cited in note 56; Thorn. Gifts & Adv. 373, ^70; 3
Pom. Eq. Juris. (4th ed.) 2626, § 1148; Irish v. Nut-
ting, 47 Barb. 370, 385.
As to the personal property I do not believe the
instrument can be construed as a gift causa mortis.
In either form of gift the donor must surrender the
possession and dominion of the property to the donee.
Ridden v. Thrall, 125 N. T. 572, 579. This, as has been
observed, was not done. The donee was to remain in
control until her death, as there was no vesting or tak-
ing effect until the happening of that event. Also in
gifts canisa mortis more is needed. '* The gift must
be made under the apprehension of death from some
present disease or some other impending peril, and it
becomes void by recovery from the disease or escape
from the peril. It is also revocable at any time by the
donor, and becomes void by the death of the donee in
the lifetime of the donor. It is not needful that the
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488 Btjtleb v. Sherwood.
Supreme Court, February, 1921. [Vol.114.
gift may be made in extremis when there is no time or
opportunity to make a will. In many of the reported
cases the gift was made weeks, and even months, be-
• fore the death of the donor when there was abundant
] time and opportunity for him to have made a will.*'
Earl, J., in Ridden v. Thrall, supra, 579.
Diligent search of counsel has failed to find an
authority where several years have elapsed between
the making of a gift and the death of the donor. While
there is no prescribed time which must intervene, the
longest time as shown in any case cited where the gift
was held valid is a period of five months {Grymes V.
Hone, 49 N. Y. 17), the court saying (p. 20) : **But at
this time it is generally agreed that, to constitute such
a gift, it must be made with a view to the donor's
death from present illness or from external and appre-
hended peril. It is not necessary that the donor
should be in extremis, but he should die of that ail-
ment. If he recover from the illness or survive the
peril, the gift thereby becomes void; and until death
it is subject to his personal revocation. (2 Kent, 444,
and cases cited; 2 Eedfield on Wills, 299 et seq.; 1
Story Eq. sec. 606, etc., notes and authorities.)*' Also
in Williams v. Guile, 117 N. T. 343, the court held, as
expressed in the head note: *4t is sufficient if it
appears the gift was made during the existence of a
bodily disease, or illness which imperiled the donor's
life, and when he must be deemed to have had his
death in view, and that death occurred from the dis-
order or illness." In that case the donor died about
six weeks after making the gift.
In the present case Mrs. Sherwood, shortly previous
to making the instrument, was advised to submit to an
operation and no doubt knew the nature of her malady
and executed the deed contemplating she might not
recover from the operation. This plainly appears from
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Butler v. Sherwood. 4D9
Misc.] Supreme Court, February, 1921.
the evidence of one of defendant's witnesses who
stated that before Mrs. Sherwood went to the hospital
in Binghamton ** she said she was waiting for some
papers to come back to sign before she went, becanse
if anything happened to her she wanted things fixed
so if she didn't come back everything would be as she
wanted if She did, however, return from the hos-
pital much improved and there was no recurrence of
the disease for about two and a half years. During
this period Mrs. Sherwood was about town, transacted
business affairs and went on long automobile jour-
neys, and otherwise indicated she was in a fairly nor-
mal condition. In June, 1919, she had a second opera-
tion and died from the ailment in January following.
Under the circumstances I believe it should be held
that there was such a recovery from the illness and the
impending peril of the first operation as to defeat the
gift which, if made, was approximately four years
before the donor's death. The situation is not entirely
unlike that often referred to as a soldier's gift made
when he enlists upon condition that if he never returns
from the war it should become absolute, which has
been held invalid as a donatio mortis causa. In Irish
V. Nutting, 47 Barb. 370, 387, the court says: '' In
short, a vague and general impression that death may
occur from these casualties which attend all human
affairs, but which are still too remote and uncertain
to be regarded as objects of present contemplation
and apprehended danger, is not sufiScient to sustain
such a gift as the one which is claimed in this case.
The party must be in a condition to fear approaching
death from a proximate and impending peril, or from
illness preceding expected dissolution." See, also,
Sheldon v. Button, 5 Hun, 110 ; Dexheimer v. Gautier,
34 How. Pr. 471 ; Gourley v. Linsenbigler, 51 Penn. St.
345. Professor Pomeroy in commenting upon these
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490 BuTLBB V. Sherwood.
Supreme Court, February^ 1921. [Vol. 114.
decisions says, in his opinion, they are clearly correct.
**If such gifts were valid as donations causa mortis,
on the same ground gifts made at any time by persons
having a chronic disease, although in no immediate
danger would be equally good because their lives are
more likely to be shortened than those of persons in
health.^' 3 Pom. Eq. Juris. (4th ed.) 2653, 2654. The
same author says (p. 2650) : *'A donation causa mor-
tis is a gift absolute in form, made by the donor in
anticipsttion of his speedy death, * * •.^^ Thornton
on Gifts and Advancements (pp. 41, 42), speaking of
the effect of a recovery from illness, says: *' The
question is one that necessarily arises, what is a re-
covery ; or what is such a recovery as will defeat the
gift? This is difficult to answer for there is no light
upon the subject. A man who is in imminent peril
because of sickness or disorder that possesses him is
usually confined to Ms bed; and if he so far recovers
as to leave his room and his house, and to attend to
some of his daily affairs, it cannot be said that the
gift is unrevoked. A man with a chronic disease may
be afflicted for years with his disorder, and may well
know and consider that he never will recover; and yet
a gift made while he is going about his usual and daily
occupations could not be considered as made dxiring
his last illness, although he might die within the next
twenty-four hours. A man having the heart disease
severely is usually in imminent peril of death, and
still performs all the avocations of a well man ; yet a
gift made by him as a donatio mortis causa would
not be valid though he were stricken and die within
the next three minutes, unless, at the time of the gift,
he had clear premonition of his approaching death.''
It would not seem, therefore, a gift causa mortis is
sustainable where the donor dies from a disease
which may be lingering for years and from which
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Sherlock v. State of New Yobk. 491
Mise.] Court of Claiins^ February^ 192L
there is or may be from time to time a substantial
recovery. *'A vague and general apprehension of
death from the mortality of man will not suffice, there
must be an apprehension arising from some particular
sickness, peril or danger.'' 20 Cyc. 1236.
From the foregoing it follows that judgment should
be directed declaring null and void the instrument
executed by the decedent on January 25, 1916, with
costs against the defendant individually.
Judgment accordingly.
Jbknie Sherlock, Claimant, v. State op New York.
Claim No. 6-22.
(State of New York, Court of Claims, February, 1921.)
Court of Glaims — jnriBdiction — banks — daimfl — state — Stat-
nte of Limitatioiui — Laws of 1919, chap. 581.
The statute (Laws of 1919, chap. 581) conferring jurisdic-
tion upon the Court of Claims to hear, audit and determine
the claims of the depositors and creditors of two certain banks
against the state, for damages sustained through the failure
of said banks and each of them, declares in unequivocal
language that it cannot be used to create any liability, and it
expressly permits the state to interpose any legal or equitable
defense, except the Statute of Limitations.
Where a claim is prosecuted under said statute upon an
allegation that the failure of the banks was due to the tortious
and n^ligent acts of the officers, agents and servants of the
state, the defense that the state is not liable therefor must
be given its legal effect, which is, that it is a complete answer
to the claim.
Claim against the state for loss of deposit by failure
of bank.
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492 Sherlock v. State of New Yobk.
Court of Claims, February, 1921, [Vol. 114,
Louis Goldstein (Max D. Steuer, Albert Conway,
Eobert L. Luce, Ralph E. Hemstreet, John B. White
and Thomas E. Shaw), of counsel, for claimant.
John C. Judge, of counsel, for Borough Bank
depositors.
John M. Zurn, of counsel, for claimants in Claims
B-14 to B-19 inclusive.
Whiteside Hill, for claimant in Chesebrough claims.
Coombs & Wilson (Joseph D. Senn, of counsel),
for First National Bank of Brooklyn, etc,
Fletcher & Spencer (Robert H. Wilson, of counsel),
for Joseph W. Blaisdell, etc.
McLean & Hayward, counsel in similar claims.
Carey D. Davie, James Gibson; George L. Meade,
Deputy Attorneys-General, for the State of New
York.
Agkebson, p. J. The above claimant, Jennie Sher-
lock, was on the 5th day of April, 1910, one of the
depositors of the Union Bank of Brooklyn, in the
borough of Brooklyn, city of New York. On that day
the said bank failed and closed its doors, as a result
of which this claimant lost all of the money she then
and there had on deposit, excepting the sum of twenty-
four dollars and twenty cents, which was thereafter
paid to her, the loss to this claimant being the sum
of ninety-six dollars and seventy-two cents. Her
claim alleges that the failure of the bank was due to
the tortious and negligent acts of the officers, agents
and servants of the state of New York. Thereafter,
the legislature of this state passed an act which took
effect on the 12th day of May, 1919, in form and
manner following, to wit :
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Sherlock v. State of New York. 493
Misc.] Court of Claims, February, 1921.
" Chapter 581
''An Act to confer jurisdiction upon the court of
claims to hear, audit and determine the claims of the
depositors and creditors of the Union Bank of
Brooklyn and the Borough Bank of Brooklyn and
to make an award therefor.
Became a law May 12, 1919, with the approval of the Governor.
Passed, three-fifths being present.
'' The People of the State of New York, repre-
sented in Senate and Assembly, do enact as follows:
'* Section 1. Jurisdiction is hereby conferred upon
the court of claims to hear, audit and determine the
claims of the depositors and creditors of the Union
Bank of Brooklyn and the Borough Bank of Brooklyn,
against the state of New York, for damages sustained
through the failure of the said banks and each of them,
and to make an award and render judgment therefor
against the state of New York and in favor of said
depositors.
** § 2. The banking department shall, within three
months after the passage of this act, present proof to
the court of claims of the amount due each depositor
of said banks.
** § 3. No award shall be made or judgment ren-
dered against the state, unless the facts proved shall
make out a case which would create a liability were
the same established by evidence in a court of law or
equity against an individual or corporation; and in
case such liability niay be satisfactorily established,
then the court of claims shall award to, and render
judgment for the claimants for such sum as shall be
just and equitable, notwithstanding the lapse of time
since the accruing of damages provided the claim
hereunder is filed with the court of claims within one
year from the time this act takes effect, provided, how-
ever, that nothing in this act nor the passage of the
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494 Sherlock v. State of New York.
Court of Claims, February, 1921. [VoL 114.
same shall be deemed or construed to have acknowl-
edged or created any liability on the part of the state,
nor shall the passage of this act be construed as
debarring the state from interposing any legal or
equitable defense which it would otherwise have
against the alleged claims except the statute of limita-
tions.
** § 4. This act shall take effect immediately.*'
Under and by virtue of this statute, the claimant
filed her claim with the Court of Claims on the 2d day
of April, 1920. Thereafter and on the 14th day of
December, 1920, at a Special Term of this court held
in the Kings county court house, in the borough of
Brooklyn, aforesaid, the attorney-general moved to
dismiss the claim on the following grounds:
'' First. That Baid claim filed as aforesaid fails to
state facts sufficient to constitute a cause of action
against the State of New York.
'' Second, That the State is immune from liability
for any loss or damage sustained through or in con-
sequence of the negligence, carelessness, malfeasance
or other tortious acts of its officers, agents or
employees.
'' Third. That the State is immune from damages
occasioned or arising out of the performance of a
governmental function.
'' Fourth. That the State has not assumed liability
for damages caused by or arising out of the facts or
transactions alleged and set forth in said claim, and
has not waived any of its defenses to said claim other
than the defense of the short statute of limitations,
in consequence of the failure of the claimant to file a
notice of intention herein as prescribed by section 264
of the Code of Civil Procedure.''
The legislature must have supposed when it passed
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Sherlock v. State of New Yoek. 495
Misc.] Court of Claims, February, 1921.
this act, that the act, in connection with the existing
law as it had been construed and declared by the courts
at that time, was a sufficient authorization to enable
the claimant herein to recover damages against the
state for the causes set forth in the claim, provided
the negligent and tortious acts of the officers, agents
and servants of the state as therein set forth could be
proven to the satisfaction of the court, and provided
that the amount of damages therein alleged to have
been suffered could be properly established by legal
evidence. This is to be assumed because the act itself
provides in the 3d section thereof, ** that nothing in
this act nor the passage of the same shall be deemed
or construed to have acknowledged or created any
liability on the part of the state, nor shall the passage
of this act be construed as debarring the state from
interposing any legal or equitable defense which it
would otherwise have against the alleged claims
except the statute of limitations.**
However, the Court of Appeals, on the 6th day of
January, 1920, in the case of Smith v. State of New
Yorkj 227 N. Y. 405, declared the law of the state in
relation to the principle with which we are concerned,
in the following language :
** The question presented by the api)eal is an im-
portant one. It is whether the immunity of the state
from liability for the tortious acts of its officers and
agents has been waived by section 264 of the Code of
Civil Procedure. • • •
** The rule is well settled that the state is not liable
for injuries arising from the negligence of its officers
and agents unless such liability has been assumed
by constitutional or legislative enactment.** P. 408.
** It is contended by the respondent, and he has been
sustained by the Court of Claims and Appellate
Division, that the state has assumed this obligation
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496 Sherlock v. State of New Yobk.
Court of Claims, February, 1921. [Vol. 114.
by the enactment of the section of the Code of Civil
Procedure to which reference has been made. I am of
the opinion the section does not bear such construction.
It was not enacted, as it seems to me, for the purpose
of extending or enlarging the liability of the state, but
solely for the purpose of declaring the jurisdiction of
the Court of Claims, before which questions of liability
might be tried.'' P. 409.
** But it is thoroughly established that by consenting
to be sued, the state waives its immunity from action
and nothing more. It does not thereby concede its
liability in favor of the claimant or create a cause of
action in his favor which did not theretofore exist. It
merely gives a remedy to enforce a liability and sub-
mits itself to the jurisdiction of the court, subject to
its right to interpose any lawful defense. {Eoherts
V. State of New York, 160 N. Y. 217.) Immunity from
an action is one thing. Lnmunity from liability for
the torts of its officers and agents is another. Immu-
nity from such liability may be waived by some posi-
tive enactment of the legislature. This, as I read the
section of the Code under consideration, the legisla-
ture has not yet done.'' Pp. 409, 410.
a • • • There certainly is not in the section an
express waiver of the state's immunity from liability
for the tortious acts of its officers and agents and
the words used will not, in my opinion, permit of such
construction. • • • The immunity of the state
from liability for the torts of its agents is based, as
I have already indicated, upon the broad ground of
public policy and it is not waived by a statute con-
ferring jurisdiction only. In the absence of a legisla-
tive enactment specifically waiving this immunity, the
state cannot be subjected to a liability therefor."
P. 410.
It has been argued that the legislature by the first
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Sherlock v. State of New York. 497
Misc.] Court of Claims, February, 1921.
part of chapter 581 of the Laws of 1919 specifically
waived the immunity of the state from liability. But
the act must be read as a whole, and the court is
obliged to give effect to the latter part of the stat-
ute as well as to the preceding part. Whatever con-
struction may be given to the language in the first
part of the statute, only one meaning can be given to
the following provision: ** Provided, however, that
nothing in this act nor the passage of the same shall
be deemed or construed to have acknowledged or
created any liability on the part of the state, nor shall
the passage of this act be construed as debarring the
state from interposing any legal or equitable defense
which it would otherwise have against the alleged
claims except the statute of limitations."
This language is clear and unambiguous and admits
of no other interpretation on the part of the court.
It must prevail over any construction of the previ-
ous sentences which conflict with it. It speaks for
itself. It does two things:
First. It expressly forbids the court from constru-
ing the act as creating any liability on the part of
the state. It i9 admitted that under the law as
declared by the Court of Appeals in Smith v. State,
supra, there was no liability before this act was
passed; there is none thereafter, because the statute
says in unequivocal language that it cannot be used
to create any liability.
Second. It expressly permits the state to interpose
any legal or equitable defense except the Statute of
Limitations. Therefore, the defense that the state is
not liable for the tortious acts of its officers, agents
and servants, has not been waived, and we find the
state in this proceeding vigorously urging it. The
state is only doing that which the statute in express
and unequivocal terms gives it the right to do, and
32
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498 Sherlock v. State of New York.
Court of Claims, February, 1921. [Vol. 114.
the court must give this defense its legal effect, which
is, that it is a complete answer to this claim.
We may say, however, in all fairness to the legis-
lature which enacted chapter 581 of the Laws of 1919,
and in explanation of its action, that as the decisions
of this state existed when that act was passed, said
act would have been sufficient to permit this claimant
to have her claim heard and considered on ita merits
before the Court of Claims of this state, because at
that time section 264 of the Code of Civil Procedure
had been construed by the Appellate Division in the
third department of this state as being sufficient
authority to enable the Court of Claims to make an
award to a claimant for damages alleged to have been
suffered through the negligent and tortious acts of
the officers, agents and servants of the state. The
Hon. Irving G. Vann, formerly a judge of the Court
of Appeals of this state, acting as an official referee,
decided the case of Arnold v. State of New York in
favor of the claimant. The case was appealed to the
Appellate Division in the third department, in which
the judgment given by Judge Vann was unanimously
affirmed on the opinion of the referee. Arnold v. State
of New York, 163 App. Div. 253, 261. The opinion
thus unanimously indorsed by the Appellate Division
contained this language: ** While the State, being a
sovereign, cannot be sued by a subject without its
consent, by one of its own statutes passed as an act
of justice to its subjects it has expressly assumed lia-
bility for damages caused by * a wrongful act, neg-
lect or default ' on its part and has authorized the
Board of Claims to hear and determine all claims
founded on its negligence, which necessarily means
the negligence of its own officers acting within the
apparent scope of their powers, or while engaged in
conducting its business. (Code Civ. Proc. § 264.)
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Sherlock v. State of New York. 499
Misc.] Court of Claims, February, 1921.
It has also provided that its liability in such and
other cases shall be measured by * such legal evidence
as would establish liability against an individual or
corporation in a court of law or equity.' (Id.)
** The history of legislation on the subject shows
progressive growth from 1870 to 1911, with continu-
ous enlargement of power to determine claims against
the State. If the language of the statute fails to
include such claims as tiiose now under consideration,
it is difficult to see what language would. The officers
of the State are like the officers of a corporation and
bind the State in the same manner by acts done within
the limits of their authority. While the Commis-
sioners were not authorized to be negligent any more
than the officers of a corporation are so authorized,
still they had the capacity to be negligent, and if, in
holding a fair for the State they were negligent, it
was the negligence of the State just as the negligence
of officers of a corporation is the negligence of such
corporation. Otherwise the assumption of liability
by the State for damages caused by * a wrongful act,
neglect or default on the part of the State ' would be
meaningless and without effect. How can the State
be guilty of a wrongful act, neglect or default except
through its * officers and employees,' and if those
words were inserted in the statute it would not add to
its meaning. {Sipple v. State, 99 N. Y. 284, 288.)
The evidence of negligence in these cases would com-
pletely overwhelm a private individual or corporation,
and the situation is the same in principle, although
the State is defendant. {Quayle v. State of New York,
192 N. Y. 47, 51; Bowen v. State of New York, 108
id. 166; Burks v. State of New York, 13 Court of
Claims, 153; less fully reported, svh nom. Burke v.
State of New York, 64 Misc. Rep. 558.)" Also see
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500 Tobias T. Co., Inc., v. Topping Realty Co., Inc.
County Court, Bronx County, February, 1921. [Vol. 114.
Judge Eodenbeck's opinion in the case of Burks v.
State of New York, 13 Court of Claims Rep. 153.
Such having been, declared to be the law of this
state, the legislature was fully warranted, on the 12th
day of May, 1919, in assuming that the act in question
was fully adequate to permit this claimant to be heard
before the Court of Claims and to have her claim de-
cided upon its merits, because the only act necessary
by the legislature was to waive the Statute of Limita-
tions, and section 264 of the Code of Civil Procedure,
under the decision in Arnold v. State of New York,
supra, did the rest.
But, as before stated, the decision of the Court of
Appeals, in Smith v. State of New York, suproi,
decided on the 6th day of January, 1920, about eight
months after the passage of the enabling act, deter-
mined that such was not the law. This claim, there-
fore, must be dismissed. The Court of Claims cannot
consider the merits under the enabling act in this case.
Cunningham, J., concurs.
Claim dismissed.
Tobias Tile Company, Inc., Plaintiff, v. Topping
Realty Company, Inc., Defendant.
(County Court, Bronx County, February, 1921.)
Costs — Bronx Oounty Court — when security for costs not
required — Code Civ. Pro. § 3268 — Bronx County Act (Laws
of 1912, chap. 548).
A domeetic corporation, whose principal place of business
is in the city of New York, as plaintiff in an action brought
in the County Court of Bronx county against one of its resi-
dents, may not be required to give security for costs under
section 3268 of the Code of Civil Procedure.
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Tobias T. Co., Inc., v. Topping Realty Co., Inc. 501
Mise.] Comity Court, Bronx County, February, 1921.
N ■ ■ ■
Section 3268 of the Code of Civil Procedure and the '' Bronx
County Act '' (Laws of 1912, chap. 548) must be read together,
and a motion to vacate an order requiring the plaintiff to file
security for costs will be granted.
Application to vacate an ex parte order requiring
plaintiff to give security for costs.
Robert S. Mullen, for plaintiff.
Bobbe & Brown, for defendant.
GiBBS, J. This is an application to vacate an order
of this court obtained ex parte requiring the plaintiff
to give security for costs.
Th« plaintiff is a domestic corporation, organized
and existing under and by virtue of the laws of the
state of New York, and has its principal place of busi-
ness in the city and county of New York. Defendant
is a resident of Bronx county.
The order requiring that plaintiff furnish security
for costs is based upon section 3268 of the Code of
Civil Procedure. The section reads as follows :
Section 3268: ** The defendant, in an action
brought in a court of record, may require security for
costs to be given, as prescribed in this title, where the
plaintiff was, when the action was commenced, either
** 1. A person residing without the state; or, if
the action is brought in a county court, except in the
counties of Albany, Kings, Queens, Rensselaer and
Richmond, or in the city court of the city of New
York, the city court of Yonkers, or the city court of
Albany, residing without the city or county, as the
ease may be, wherein the court is located; or * * *.**
It is settled that the term ** person " used in said
act, includes a corporation. Sherin Special Agency v.
Seaman^ 49 App. Div. 33.
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502 Tobias T. Co., Inc., v. Topping Realty Co., Inc.
County Court, Bronx County, February, 1921. [Vol.114.
Section 3268 of the Code of Civil Procedure was
reenacted from 2 Revised Statutes, 620, part 3, chap-
ter 10, title 2. The original act provided that ** When
a suit shall be commenced in any court, 1. For a plain-
tiff not residing within the jurisdiction of such Court
or • * •. The defendant may require such plain-
tiff to file security for the payment of the costs that
may be incurred by the defendant in such suit or
proceeding.*^
In other words, a person who brought suit in the
County Court of a county of which he was not a resi-
dent, was required to give security at the instance of
the defendant.
The amendment to the Code of Civil Procedure in
1904 excepted from the general rule the County
Courts of Kings, Queens and Richmond counties and
the City Court of the city of New York. It is evident
that the intention of the legislature in making this
amendment was to permit persons residing in one of
the counties comprising the city of New York to main-
tain actions in a County Court of the county in which
they reside or of an adjoining county in the city of
New York so long as that court had jurisdiction of the
defendant, without the necessity of giving security for
costs.
At the time of this enactment the borough of The
Bronx was part of the county of New York and, there-
fore, included in the exception to the City Court of the
city of New York. But in 1912 the borough of The
Bronx was made a county by the act of the legisla-
ture known as the Bronx County Act.
The defendant corporation contends on this motion
that insomuch as the borough of The Bronx was
made a county separate and distinct from New York
county and as there is no exception in section 3268
of the Code of Civil Procedure as to the Broux County
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Tobias T. Co., Inc., v. Topping Bbaijty Co., Inc. 503
Misc.] County Court, Bronx County, February, 1921.
Court, the plaintiff should be compelled to file
security for costs. It cites a number of cases where
security for costs has been required of the plaintiff
in actions brought in many courts but none of them
were actions brought in the County Courts of any of
the counties comprising the city of New York.
Counties as to their corporate existence are com-
pletely within the control of the legislature. They
may be changed, altered, enlarged, diminished or ex-
tinguished by the mere act of that body. Bronx
county was created by chapter 548 of the Laws of
1912.
Section 3 of said act provides in part that : ** There
shall be a county court and a surrogate's court in and
for the coxmty of Bronx with all the jurisdiction and
powers respectively vested in said courts by the con-
stitution and the general laws relating to the county
courts and surrogates* courts respectively in the sev-
eral counties of this state now included in the city of
New York except as hereinafter provided * * *.''
Section 7 provides: ** The coxmty court within the
county of Bronx on and after the first day of Janu-
ary, nineteen hundred and fourteen, shall have the
same jurisdiction over civil and criminal actions and
special proceedings as is now exercised xmder the pro-
visions of law by the county court of the county of
Kings.''
The County Court of Bronx county, being a court
of limited jurisdiction, has only such jurisdiction and
powers as is conferred upon it by statute. By reason
of the act which created the county, the County Court
has all the jurisdiction and powers vested in courts
by the Constitution and general laws relating to
County Courts in the city of New York, particularly
Kings County Court. Laws of 1912, chap. 548, § 7.
If the case at bar had been instituted in Kings
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504- Tobias T. Co., Inc., v. Topping Realty Co., Ino.
County Court, Bronx Connty, February, 1921. [Vol.114.
county, and the County Court of that county had jur-
isdiction over the person of the defendant, the plain-
tiff would not be required to give security for costs.
Code Civ. Pro. § 3268.
If Bronx county is an exception to the general rule,
it must be that the legislature intended it to be so, by
the act creating the county. In other words, did the
legislature by enacting the Bronx County Act read
into section 3268, Code of Civil Procedure, ** the
County of Bronx, '* as an exception to the general
rulet I believe it did.
Statutes relating to costs are generally taken
strictly as being a kind of penalty and as creating lia-
bilities which did not exist at common law. Suth.
Stat. Const. § 718.
But provisions of an act requiring security for
costs should be liberally construed to accomplish the
object in view when passed. Fogg v. Edwards, 57
How. Pr. 290.
It is obvious that in 1904 when section 3268 of the
Code of Civil Procedure was amended so as to except
from the general rule the County Courts of Kings,
Queens and Eichmond and the City Court of the city
of New York, it was the intention of that body to
make it possible for a plaintiff residing in any of the
counties comprising the city of New York to institute
an action in any County Court in New York city, with-
out giving security for costs. It was the intention
that an action could be brought in the City Court of
the city of New York against a resident of Bronx
county without the necessity of giving security. I do
not believe the legislature desired to alter th« situa^
tion because the borough of The Bronx was made a
county and the County Court created, as it still re-
mains one of the boroughs of the city of New York.
It simply meant to apply all laws relating to the
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Matter of McMullbn. 505
Mise.] Surrogate's Court, New York Gountj; February, 192L
Connty Courts of New York city to the Bronx County
Court. It sought to avoid the necessity of amending
every statute pertaining to these courts by adding the
words ** Bronx County Court *' to each of them.
I am therefore of the opinion that section 3268 of
the Code of Civil Procedure and chapter 548 of the
Laws of 1912, known as the ** Bronx County Act ^'
must be read together. The motion to vacate the
order requiring the plaintiff to give security for costs
is granted, with ten dollars costs.
Motion granted, with ten dollars costs.
Matter of the Estate of Lena MgMullen, Deceased.
(Surrogate's Court, New York County, February, 1921.)
Transfer tax — transfer of stock of foreign corporation owning
real estate within the state of New York, the stock of which
is owned by a non-resident decedent, is taxable — constitu-
tional law — Tax Law, § 220(2).
The provision of section 220(2) of the Tax Law fixing for
the purposes of a transfer tax the interest of a non-resident
decedent in shares of stock in a foreign corporation owning
real estate in the state of New York, as such proportion of
the value of decedent's stock as said real estate bears to the
value of the entire property of the corporation, wherever situ-
ated, is a valid exercise of the taxing power and is consti-
tutional.
Even if at the time of decedent's death the certificate was
not in this state, the transfer of his interest as stockholder in
the real property here would be taxable.
The language of said section 220(2) is not confined to corpo-
rations exclusively engaged in holding real estate but applies
to all foreign corporations owning real estate in the state of
New York.
Appeal from an order assessing transfer tax.
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506 Matter of McMullbn.
Surrogate's Court, New York Comity, February, 1921. [Vol. 114.
White & Case (Joseph F. McCloy and Thoma© A.
S. Beattie, of counsel), for appellant.
Lafayette B. Gleason (Schuyler C. Carlton, of coun-
sel), for State Comptroller.
Foley, S. On this appeal the executor contends
that section 220, subdivision 2, of the Tax Law is un-
constitutional and void in so far as it taxes the trans-
fer of shares of stock owned by a non-resident in a
foreign corporation owning real estate within the
state of New York. The decedent died May 20, 1919.
The appraiser reports that an interest in 500 shares
of the Atlantic, Gulf and Pacific Company, a West
Virginia corporation, is taxable. That company is
engaged in dredging and owns real estate in New
York city valued at $600,000, and total assets of
approximately $2,500,000. Its principal place of busi-
ness and stock transfer office are located in New York.
The taxable interest is fixed by the statute as such
proportion of the value of decedent *s stock as the
value of the real estate owned in New York bears to
the value of the entire property of the company
wherever situated. The executor contends* :
First. That the shares of stock are not within the
taxing jurisdiction of the state of New York, and that
the legal situs of the stock is either in the state of
incorporation (West Virginia), or in the residence of
the decedent, in this case Connecticut. Matter of
Bronson, 150 N. Y. 1; Matter of James, 144 id. 6;
Matter of Enston, 113 id. 174.
Second. That if the act is constitutional, it applies
only to stock in corporations exclusively engaged in
the ownership of real estate and therefore it is not
applicable to the stock in this estate.
I am of the opinion that the statute is constitutional
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Matteb of McMullen. 507
Misc.] Surrogate's Court, New York County, February, 1921.
and that the transfer was taxable. ''As to residents,
the transfer tax is on the succession, and is imposed
on the right of succession; but as to non-residents it
is a tax on the transfer of property within the juris-
diction of the court." Matter of Bishop, 82 App. Div.
112, 115. The stock certificate was actually located in
this state at the time of the death of this testatrix:
and therefore was property taxable within our juris-
diction. Matter of Bomaine, 127 N. Y. 80 ; People ex
rel. Wynn v. Grifenhagen, 167 App. Div. 572 ; People
ex rel. Hatch v. Beardon, 184 N. Y. 431; Matter of
Barbour, 185 App. Div. 445, 454; Matter of Whiting,
150 N. Y. 27-30; Simpson v. Jersey City Contracting
Co., 165 id. 193. The legislature might have taxed
the full value pf the stock, but it has levied a tax only
upon a partial interest. The Court of Appeals has
sustained the constitutionality of the stock transfer
tax (Tax Law, § 270), and all the reasons supporting
that statute apply here. People ex rel. Hatch v. Bear-
don, 184 N. Y. 431, 449 ; affd., 204 U. S. 152.
But even if the certificate was not in this state at
the time of death, the transfer of the stockholder's
interest in the corporate real property located here
would be taxable. A review of the history of the stat-
ute is convincing. During the decade previous to its
enactment in 1915, the formation of corporations
(both domestic and foreign) to take and hold real
estate had enormously increased. Our legislative
and judicial policy, from the first enactment of the
Transfer Tax Law up to 1915, has been to exempt a
non-resident's stock in foreign corporations. This
was so even if the certificates were found in this state
at the time of death. Matter of James, 144 N. Y. 6.
The policy, however, was changed to correct the
abus'es brought about by the increased corporate
ownership of realty. A non-resident could avoid the
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508 Mattbe of McMullen.
Surrogate's Court, New York County, February, 1921. [Vol. 114.
tax by the conveyance of his real estate to a foreign
corporation. Matter of Richards^ 182 App. Div. 572,
575. To prevent this evasion, the amendment to sub-
division 2 of section 220 was made by chapter 664 of
the Laws of 1915. It must be remembered, however,
that this subdivision does not apply to all foreign cor-
porations, but only to those owning realty in this
state. The legislature has levied certain taxes as a
condition for doing business in the Sftate. It has pro-
vided for a license tax which is paid on the basis of
the capital stock employed in this state (Tax Law,
§ 181) ; and a franchise tax which is measured by the
gross assets employed here (Tax Law, § 182). This
section also applies to corporations engaged in buy-
ing, selling and holding real estate. The income tax
is now assessed upon foreign corporations upon their
net incomes derived from assets in this state. Tax
Law, art. 9-a. The validity of these taxes has- been
su&tained, in each instance, by the Court of Appeals.
People V. Home Ins. Co., 92 N. T. 328; People ex rel
Wall d Hanover St. Realty Co. v. Miller, 181 id. 328;
People ex rel. Alpha P. C. Co. v. Knapp, 230 id. 48. If
such taxes based upon property in this state were valid
deductions before the payment of dividends to the
stockholder, the transfer of his ** interest, '* repre-
sented by this property within the state, is likewise
clearly taxable at his death. The legislature has
expressly imposed in subdivision 2 of section 220 a
tax upon the transfer of ** shares of stock, bonds,
notes, or other evidences of interest in a/ny corpora-
tion.'^ The definition of a stockholder's interest in
the corporation is set forth in Matter of Bronson, 150
N. Y. 1, 8, as follows : ** The corporation has the legal
title to all the properties acquired, • • • but it holds
them for the pecuniary benefit of those persons who
hold the capital stock. • • • Each share represents
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Mattbb of McMullbk. 509
Misc.] Surrogate's Court, New York County, February, 1921.
a distinct interest in the whole of the corporate prop-
erty/' Cass V. Realty Securities Co., 148 App. Div.
96, 100; U. 8. Radiator Co. v. State of New York,
208 N. Y. 144, 148; Hatch v, Reardon, 204 U. S.
152, 162. Or as stated by Nelson, J., in Van Allen
V. Assessors, 3 Wall. (U. S.) 573: '* This is a dis-
tinct independent interest or property, held by the
shareholder like any other property that may belong
to him.'* In Matter of Whiting, 150 N. T. 27, 30,
it was held: ** The law clearly distinguishes * writ-
ten instruments themselves ' from * the rights or
interests to which they relate' • • • ^j^^ makes
either taxable. • • • When the design of the
legislature is to tax the transfer of everything that
it has power to tax, there is no inconsistency in
taxing in one form if another is not available.'' Our
courts have recognized the distinction between the
interest of the stockholder in the whole corporation,
and his interest in part of specific property located in
this state. Matter of Cooley, 186 N. Y. 220; Matter,
of Thayer, 193 id. 430. New York realty owned by
non-residents is unquestionably the subject of a trans-
fer tax. Matter of Barbour, 185 App. Div. 445, 454;
Matter of Bishop, 82 id. 112. There is no essential
difference between a transfer tax upon the individual
ownership of realty, and a transfer tax upon the indi-
vidual share of the stockholder in the corporate realty.
Matter of Bronson, 150 N. Y. 8. The ultimate juris-
diotion rests upon the situs of the corporate real prop-
erty in this state. The statute clearly and justly
places upon the same plane, for transfer tax purposes,
the ownership of realty either by our own residents —
individual and corporate — or by non-residents and
foreign corporations. The sweeping powers of the
legislature in assessing transfers of property are
clearly defined by Judge Crane in Matter of Watson,
Digiti
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510 Mattes of McMuu^en.
Suirogate'B Coxai, New Yoik County, Febroary, 192L [VoL 114.
226 N. T. 384; affirmed by United States Supreme
Court {Watson v. Stofte Comptroller, 254 XT. S. 122),
which recently sustained the constitutionality of a
transfer tax under section 221b, Tax Law. He states:
** The taxing power both direct and through an inherit-
ance tax, is very broad, and submits to few restrictions.
Such laws need not be submitted to courts for their
approval and can only meet with disapproval when
some fundamental principle has been violated. • • •
Every presumption is in favor of the constitutionality
of an act of the legislature and if the Constitution and
the act can be reasonably construed so as to enable the
latter to stand, it is the duty of the courts to give them
that construction. {People ex rel. Met. St. Ry. Co. v.
Tax Commissioners, VIA: N. Y. 434, 437.) ''
The legislature in explicit language has declared
that the transfer of stock in these corporations shall
be taxed, and the statute is clearly a valid exercise of
the taxing power.
Upon the executor's second contention, I hold that
the language of subdivision 2, section 220, is not con-
fined to corporations exclusively engaged in holding
real estate, but must be extended to all foreign cor-
porations owning real estate in New York. If the
legislature desired to so limit the scope of the sub-
division it had the necessary language, in another sec-
tion of the Tax Law (§ 210) where the language used
is ** corporations wholly engaged in the purchase,
sale and holding of real estate for themselves. *' No
such restrictive language was used in section 220,
subdivision 2. Likewise, if real estate corporations
only were intended to be taxed, it would have been
futile for the legislature to have made the exceptions
to the general class of foreign corporations recited in
the subdivision, viz., a moneyed corporation, railroad
or transportation, or a public service or manuf aetur-
Digiti
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Matteb of Leb. 51 1
Misc.] Surrogate's Court, New York C!oimty, February, 1921.
ing corporation. The statute must be held, therefore,
to apply to a foreign corporation like the Atlantic,
Gulf and Pacific Company. The appeal of the execu-
tor is denied.
Order reversed.
Matter of the Estate of Benjamin Frankun Leb,
Deceased.
(Surrogate's Court, New York County, February, 1921.)
Wills -rconstmction of — wlien tnut cannot be terminated hy
merger — Personal Property Law, § 15.
Where testator, whose estate consisted solely of personal
property, gave one-half of it to his executors in trust for the
benefit of his daughter for life or until her marriage, the trust
is indestructible under section 15 of the Personal Property Law,
and her interest in the income cannot be transferred or merged
in the remainder so as to terminate the trust.
Where the sons of testator predeceased him, the claim of
the daughter, his only surviving child, who is still unmarried,
to be presently entitled to the possession and enjoyment of
the entire estate because of an alleged merger of her interest
as sole beneficiary and remainderman, will be denied.
While she is immediately entitled to one-half of the estate
a successor trustee of the other half will be appointed.
Progeedinq upon the judicial settlement of the
accounts of a trustee.
James T. Kilbreth, for i)etitioners.
Henry G. Schackno, for Caroline King Lee.
Foley, S. On this accoimting a question of con-
struction arises. A fair interpretation of this will is
that the testator gave one-half of his estate in trust
to his executors to receive and apply the income for
Digiti
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512 Matteb of Lee.
Surrogate's Court, New York County, February, 1921. [Vol. 114.
the benefit of his only daughter during her life or
until her marriage. This trust is a trust in personalty-
only. The daughter is still unmarried and is now the
only surviving child of the testator. Her three broth-
ers died after the testator, and she is at present enti-
tled not only to one-half the income, but to the whole
remainder. She claims, however, that she is presently
entitled to the possession and enjoyment of the entire
estate because there was a merger of her interests as
sole beneficiary and remainderman. With this con-
tention I do not agree. The trust created by the first
codicil was one to receive income and to apply it to
her use. Such a trust is indestructible. Pers. Prop.
Law, § 15. The interest of the beneficiary of the trust
to receive the income for her life cannot be trans-
ferred or merged in the remainder so as to terminate
the trust, nor can the payment of the principal of the
fund to the person in whom are vested both the life
estate and the remainder be made. Dale v. Quarcmty
Trust Co., 168 App. Div. 601; Cazzani v. Title Guar,
dt Trust Co., 175 id. 369; affd., 220 N. Y. 683; Maiter
of Wentworth, 230 N. Y. 176. The sole surviving
trustee having died, the Central Union Trust Com-
pany of New York will be appointed successor trus-
tee of the one-half of testator^s estate provided for
in the first codicil. Caroline King Lee is entitled to
the other one-half immediately. Tax costs and sulnnit
decree on notice.
Decreed accordingly.
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17 & 19 East 95th St., Inc., v. Bernstein. 513
Misc.] Municipal Court of New York, February, 1921.
17 AND 19 East 95th Street, Inc., Plaintiff, v. Harold
Bernstein, Defendant.
(Municipal Court of the City of New York, Borough of Man-
hattan, Ninth District, February, 1921.)
Landlord and tenant — when action for use and occupation main-
tainable — lease — election — Laws of 1920, chap. 944, §§ 5, 6.
Where premises in the city of New York were leased for
dwelling purposes for one year ending September 30, 1920, an
action to recover the reasonable value of the use and occupation
of the premises for the months of October and November, 1920,
during all of which time the defendant was in possession, is
an election on the part of the plaintiff to regard the defendant
as a tenant and not as a trespasser, and such election is con-
clusive upon both parties.
Under the provisions of sections 5 and 6 of chapter 944 of
the Laws of 1920, by which the legislature intended to confer
upon the owner of residence property, such as here, a right of
action to secure a fair and reasonable rent, an action to recover
for use and occupation is maintainable and the plaintiff is not
necessarily limited to a recovery of the same rent as was
reserved in the lease, which has expired.
Motion by defendant for judgment on the pleadings.
Scott, Gerard & Bowers (Victor House, of counsel),
for plaintiff.
Solon B. Lilienstern, for defendant.
Lauer, J. This is a motion made by the defendant
for judgment on the pleadings and on certain stipula-
tions in regard to the facts agreed to by the parties.
It appears that this action is brought by the plaintiff
as owTier of the building 17-19 East Ninety-fifth street
to recover the value of the use and occupation of an
apartment therein occupied by the defendant. The
33
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514 17 ft 19 East 95th St., Inc., v. Bebnsibik.
Municipal Court of New Tork, February, 192L [Vol. 114.
defendant is in possession of the premises holding
over after the expiration of a term stated in a lease
dated April 18, 1919, made by the plaintiff's grantor,
the estate of W. H. Langley. The term of the lease
was for one year commencing October 1, 1919, and
ending September 30, 1920. The rental stated in the
lease was the annual sum of $720, payable in equal
monthly installments of $60. The action was brought
to recover the sum of $266.67 for the period from
October 1, 1920, to November 30, 1920, during all of
which time the defendant was in possession. Accord-
ing to the stipulation the defendant tendered to the
plaintiff the sum of $60 in the month of October, 1920,
and $60 in the month of November, 1920, the same
rent stated according to the terms of the lease which
expired September 30, 1920. The plaintiff refused to
accept these tenders, claiming them to be insufficient,
and the defendant has deposited the sxun of $120 in
court to keep good his tender before suit.
The defendant claims that by reason of the com-
mencement of the present action for use and occupa-
tion he is recognized by the landlord as a hold-over
tenant and therefore the terms of the original lease
under which the defendant held up to September 30,
1920, wherein he was to pay the monthly rental of
sixty dollars, is renewed for a further period of a
year upon tne same terms and that his plea of tender
before suit, kept good by the payment of the tender
into court, constitutes a complete defense entitling
him to judgment.
Both parties agree that prior to the enactment of
the so-called housing laws of 1920, the proposition of
law was well established that where a tenant held over
under a written lease for a year or longer the land-
lord had his election of two, and only two, alterna-
tives : first, either to regard the tenant holding over
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17 & 19 East 95th St,, Inc., v. Bbrnstbin. 515
Mise.] Mtinicipal Court of New York^ February, 1921,
as a trespasser, or, secondly, to regard him as a ten*
ant for another year tinder the same terms and con-
ditions as those stated in the lease jnst expired. Stern
<6 Co. V. Avedon (B Co., Inc., Ill Misc. Rep. 372;
Stevens v. City of New York, 111 App. Div. 562 ; Ken-
nedy V. City of New York, 196 N. Y. 19, 23; Haynes v.
Aldrich, 133 id. 287; Schuyler v. Smith, 51 id. 308.
It may be that a tenant holding over after notice
by the landlord of his intention to increase the rent
will be regarded as a lessee for another year under
the increased rent {Stern <& Co. v. Avedon & Co,, Inc.,
supra; Despard v. Walbridge, 15 N. Y. 374, 375) but
this state of facts would be regarded as the making of
a new contract rather than that of holding over. Stern
& Co. V. Avedon & Co., Inc., supra. That is, the
foundation for an implied contract would have been
laid and that would be in law a virtual assent by the
tenant to the terms prescribed in the notice of the land-
lord. Despard v. Walbridge, supra.
The question of whether a landlord serving a
proper notice can impose liability upon a hold-over
for a greater rental than that reserved in the lease,
the term of which had expired, where the tenant dis-
sents from the increase mentioned in the landlord's
notice, although referred to in counsel's brief, is not
directly involved in the present case. This seems to
be the effect of the dictum of the justice who
decided the case of Machson v. Katz, N. Y. L. J.,
Jan. 11, 1921. It may be observed that the authority
for the annunciation of that rule is the case of Lasher
V. Eeist, 126 111. App. 82. A reference to that case
indicates that it is based upon the law as laid down
in the earlier case of Hunt v. Bailey, 39 Mo. 257, in
which the following is stated as the principle: '* If
the tenant manifests his dissent from the terms pro-
posed for increased rent, then no privity of contract
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516 17 & 19 East 95th St., Inc., v. Bernstein.
Municipal Court of New York, February, 1921. [Vol.114.
will be created for the increased rent ; and if he holds
over, it will be considered on the terms of the lease by
which he originally gained possession. In such case,
the remedy of the landlord would 'be ousting the
tenant from the possession, under the statute, if he
objected to a continuance of the occupation according
to the terms and conditions of the lease."
Of course, under the present statute in such a case
as the present one, the landlord would not be entitled
to oust the tenant from the possession, and this
alternative remedy referred to does not presently exist
in such a case as this.
Referring to this case of H%mt v. Bailey, the court
in the case of Moore v. Harter, 67 Ohio St. 250, at
page 254, says: '* The better opinion and current of
authority seem to be the other way,'* citing Roberts
V. HoAfward, 3 Car. & P. 432; Brinkley v. Walcott, 10
Heisk. (Tenn.) 22; Beithman v. Brcmdenburg, 7 Colo.
480; Griffin v. Kinsley, 75 111. 411. It was further
said in the opinion in the case of Moore v. Barter,
supra: ** The tenant's dissent from the terms pro-
I>osed by the landlord amounts to nothing unless the
latter accepts it, because the presumption is that one
holding over, after notice from the landlord that a
change of terms would be required, is presumed to do
so on the terms proposed by the landlord. Other-
wise he would put himself in the wrong and would be
liable to be treated as a trespasser.''
The defendant contends, and in this respect I think
his contention is well founded, that the commencement
of an action to recover for use and occupation is an
election on the part of the landlord to regard the
tenant as a tenant and not as a trespasser. Conrow
V. Little, 115 N. Y. 394; Stevens v. City of New York,
supra. This election having been made it must be
regarded that the tenant has been accepted as such
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17 & 19 East 95th St., Inc., v. Bernstein. 517
Misc.] Municipal Court of New York, February, 1921.
and that election is conclusive upon both parties.
** Neither can then claim that the tenant is a tres-
passer.*' Stern S Co. v. Avedon & Co.^ Inc., supra.
There is no material dispute between the parties
up to this point. The plaintiff, however, claims that
the present action for use and occupation is one which
is maintainable under the provisions of chapter 944
of the Laws of 1920 and that that statute impliedly if
not expressly justifies a landlord in maintaining an
action against a tenant to recover the reasonable
rental value of premises occupied by a tenant during
the time the tenant is holding over.
Prior to the enactment of the so-called housing
laws of 1920 a landlord could oust a tenant who held
over after the expiration of the term of his lease
either by an action in ejectment or by summary pro-
ceedings of dispossession. The remedy of a sum-
mary proceeding to remove a tenant from premises
used for dw^elling purposes in the city of New YorK
is temporarily, until November, 1922, taken away
from the landlord. Laws of 1920, chaps. 942, 947.
One of the so-called housing laws also deprives a
landlord of his right to recover double rental value
in damages from a hold-over tenant under section 230
of the Real Property Law (Laws of 1920, chap. 138).
As part of the housing laws a landlord is deprived
of his right to maintain an action for ejectment. Laws
of 1920, chap. 947. The Appellate Division of the
Supreme Court of this department in the recent case
of Guttag v. Shatzkin, 194 App. Div. 509, has declared
this later statute as violative of the State Con-
stitution.
In the light of these statutes what did the legisla-
ture intend should be the remedy of the landlord to
recover proper and adequate rental from a tenant
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518 17 & 19 East 95th St., Inc., v. Bernstein.
Municipal Court of New York, February, 192L [Vol. 114.
remaining in possession after the expiration of Ms
term? Did the legislature intend that chapter 944 of
the Laws of 1920 shonld supply this almost essential
relief to a landlord, after depriving him of the con-
trol of his property so far as the ouster of a ten=ant
in possession?
Chapter 944 provides, as did the earlier statute of
the same year (Laws of 1920, chap. 136), that it shall
be a defense to an action for rent that the rent
reserved is unjust and unreasonable and that the
agreement under which the same is sought to be recov-
ered is oppressive. In that same statute it was pro-
vided (chap. 944, § 4), which also was contained in.
chapter 136 of the Laws of 1920, ** that nothing herein
contained shall prevent the plaintiff from pleading
and proving in such action a fair and reasonable rent
for the premises and recovering judgment therefor,
or from instituting a separate action for the recovery
thereof/^ In other words, the landlord could, when
suing for rent under an agreement, even though the
defense of unjust and unreasonable rental which the
statute permits to be set up, be sustained, nevertheless
recover the ** fair and reasonable rent *' in that action
or he may secure this '* fair and reasonable rent " by
*' instituting a separate action for the recovery
thereof.*' This section, according to the view that I
entertain, furnishes sufficient justification for the
maintenance of the present action. That this con-
struction is a proper one is verified by reference to
subsequent provisions of the same statute.
By section 5 of the same statute it is provided that
(italics mine) ** If in an action against the occupant
of the premises for rent or for the renewal value of\
the v^e cmd occupation thereof, plaintiff recovers
judgment by default, the judgment shall contain a
provision,'' etc., and section 6 provides (italics mine)
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17 & 19 East 95th St., Inc., v. Bbrnbteik. 519
Misc.] Municipal Court of New York, February, 1921.
*' If in any action for rent or rental value the issue of
fairness and reasonableness of the amount demanded
in the complaint be raised by the defendant, he must
at th«e time of answering deposit,'* etc. It seems to
me that by these provisions which I have quoted from
chapter 944 of the Laws of 1920 the legislature clearly
intended to give a landlord the right to maintain an
action to recover a fair and reasonable rent or rental
value of premises from the tenant even though that
tenant was holding over under a lease the term of
which had expired, and that the landlord is not neces-
sarily limited to a recovery of the same rent as was
reserved in the lease the term of which had expired.
The case of Machson v. Katz, recently decided by
my associate Judge Robitzek (N. Y. L. J., Jan. 11,
1921) is not an authority covering the present issue
before me. That was a decision in a case where it
was sought to secure the reasonable rental value of
premises from a monthly tenant where it was held
that proper notice to terminate the original monthly
tenancy had not been given. The question considered
by me in the present case does not appear to me to
have been decided in tiiat case.
If the contention of the defendant were correct
practically the only remedy of an owner of dwelling
property against a hold-over tenant in such a case as
this would be to accept him as a tenant for another
year under the old lease regardless of the adequacy
or inadequacy under changing conditions of the rental
therein stipulated. I am of the opinion that this was
not the intention of the legislature but on the con-
trary that by the provisions of chapter 944 of the
Laws of 1920 before referred to it was intended to
confer upon the owner of residence property such as
this the right of action to secure a fair and reasonable
rent or rental value.
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520 TJNDERHILIi V. SCHENCK.
Supreme Court, March, 1921. [Vol.114.
From the expression of these views it follows that
the defendant's motion for judgment must be denied.
Under the stipulation entered into by counsel since
the submission of this motion it is agreed that in the
event of th« denial of the defendant's motion judg-
ment should be awarded for the plaintiff in the sum of
$200. I give judgment in that amount in accordance
with that stipulation.
Judgment for plaintiff.
John G. Underhill, Plaintiff, v. Joseph M. Schbnck,
EicHARD H. Herndon and Jacincto Benavente,
Defendants.
(Supreme Court, Kings Special Term, March, 1921.)
InjnnctionB — dramatic compositioiis — when Ucensee does not
acqnire motion picture rights — injunction pendente lite
denied as to use of name.
Under a grant by the author of a dramatic composition of
the right to translate and adapt it into the English language
and to perform or cause to be performed in said langpiage, the
licensee does not acquire the motion picture rights to the play.
(Pp. 522, 523.)
Where subsequent to such a grant the author of the play
transferred the motion picture rights therein to another, the
licensee of the right of translation and spoken performance is
not entitled, upon the theory of unfair competition, to an
injunction pendente lite to restrain, in connection with any
motion picture production of the play, the use of the title
" The Passion Flower " which plaintiff devised for the spoken
drama and of lines, captions and titles in the English language
in connection with any such production.
Motion for a preliminary injunction.
Paul Bonynge, for plaintiff.
Newmann & Newgass, for defendant Schenck.
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Underhill v. Schbnck. 521
Misc.] Supreme Court, March, 1921.
Elijah N. Zoline, for defendant Herndon.
Wingate & Cnllen (Conrad S. Keyes, of counsel),
for defendant Benavente.
AspiNALL, J. This is a motion for a preliminary
injunction restraining the defendants from using the
title ** The Passion Flower/' or any lines, captions
or titles in the English language, in connection with
any motion picture production of a dramatic composi-
tion by one of the defendants Benavente. The com-
position in question is a three-act drama entitled
** La Malquerida,'* the English equivalent being ** The
Hl-Beloved.'' The composition was duly copyrighted
by the author Benavente in the year 1914 under the
title '* La Malquerida/' In the year 1917, by written
contract, the author granted to the plaintiff upon the
terms and conditions therein specified '* the sole right
to translate and adapt into the English language, and
to perform or cause to be performed in the said lan-
guage, the drama in three acts entitled ^ La Mal-
querida/ '' The plaintiff thereupon prepared an
English translation and adopted therefor the title
** The Passion Flower," which he claims to have
invented and devised. Thereafter and pursuant to a
contract made in January, 1920, between the plaintiff
and the defendant Herndon, the latter produced the
drama under that name in many of the principal cities
of the United States, including about 150 perform-
ances of said drama in the city of New York, and that
public performances of said drama are still being
given regularly and with great success. Both before
and after the contract of January, 1920, the plaintiff
and the defendant Herndon were negotiating for the
acquisition by the latter of the motion picture rights.
As a result, in or about February, 1920, an agreement
was made between the plaintiff and the defendant
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522 UNDEBHIUi V. SCHEKOE.
Supreme Court, March, 1921. [Vol. 114.
Herndon by which the former assumed to transfer to
the latter a one-half interest in and to the motion pic-
ture rights of the play **The Passion Flower *'
throughout the world, and Herndon gave to the plain-
tiff, as a part of the consideration, a cheek for $500.
These negotiations were conducted in the belief that
the author's approval could be obtained to any dis-
position of the picture rights by the plaintiff. Subse-
quently the check was returned to the defendant Hem-
don on the ground that the plaintiff had been
advised that the picture rights of *' La Malquerida ''
had been disposed of through an agency in the city of
Paris and *' that, therefore the author is not able to
make a contract concerning them.*' When the defend-
ant Herndon learned that the author had transferred
the picture rights for the world to one Gonzalez he
immediately entered into negotiations with the latter,
with the result that in June, 1920, he acquired all Gon-
zalez's rights under the latter 's contract with the
author. Subsequently, in October, 1920, the defend-
ant Herndon sold and assigned to the defendant
Schenck the picture rights for a consideration of
$25,000. The defendant Schenck thereupon began
the preparation of a photoplay, in which a celebrated
actress. Miss Norma Talmadge, was to star, upon a
scale that already has involved an expenditure of
over $100,000 and will require further and large addi-
tional expenditures, and besides has incurred impor-
tant contractual obligations. The contemplated pro-
duction under the name of ** The Passion Flower *'
has been widely advertised. This being the situation,^
the plaintiff seeks injunctive relief as before stated.
In my opinion the plaintiff never acquired the pic-
ture rights to the drama. The grant from the author
does not expressly transfer such rights and the lan-
guage employed is too restricted to embrace them by
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Undebhill v. Schbnok. 523
Misc.] Supreme Courts March, 1921.
implication. The right conferred by the grant is ** to
translate and adapt into the English language^ and
to perform or caiise to be performed in the said lan-
guage * * *.'* A motion picture play is not a per-
formance in the English or in any other language. Its
chief characteristic is that it is a performance prac-
tically without language. Such words, phrases and
short sentences as are thrown upon the screen at inter-
vals for purposes of elucidation and explanation are
not necessarily taken from the spoken drama. It
seems quite clear to me from the phraseology of the
grant by the author to plaintiff that the parties con-
templated the presentation of the drama, as trans-
lated by the plaintiff, upon the stage, by speaking
actors. See Klevn v. Beach, 239 Fed. Eepr. 108; 232
id. 240. This case distinguishes Frohman v. Fitch,
164 App. Div. 231; and that case is further distin-
guishable by the broader language of the grant.
Moreover, the plaintiff does not seriously contend
that he possesses the picture rights to the drama. In
the prayer of the complaint, he does not ask for an
injunction to prevent the production of any photo-
play, but only for an injunction against the use of
the title **The Passion Flower" and of any lines,
captions and titles in the English language in connec-
tion with any such production. Such also is the lan-
guage of the order to show cause, and in his brief he
urges that even if he has not acquired *' in express
terms '* the right to make a picture production of the
drama ** it is clear that his sole right to translate and
adapt into English is ample to prevent any sitch pro-
duction by another.''
The plaintiff's real contention is that he devised or
invented the title '* The Passion Flower" for the
spoken drama and that its appropriation by the
defendants for the contemplated photoplay is the vio-
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524 Undebhill v, Sghengk.
Supreme Court, March, 1921. [Vol. 114.
lation of a right exclusive to himself and so consti-
tutes unfair competition. It may be here said that
his claim to be the originator of this title is not sub-
stantiated by the records in the copyright office, which
disclose that this identical title has been previously
adopted by others in connection with both dramatic
and literary compositions ; but this is immaterial, for
relief in equity lies to the adopter and user of a title,
not to the inventor of it. Frohlich on Motion Pic-
tures, § 121; Dickey v. Mutual Film Corp., 160 N. T,
Supp. 609. It must be conceded that the plaintiff first
adopted the title for his spoken drama. But priority
of adoption and use alone is not sufficient, for the
plaintiff has no exclusive property right in the name
*^ Passion Flower.'* The drama was not copyrighted
under that title, nor was it ever so registered as a
trade mark, name or label. It is the name of a flower.
One of the definitions in the Century Dictionary is
** any plant of the genus Passiflora." Any one may
apply the name to a i>oem, a country estate or a race
horse, as fancy dictates. To justify injunctive relief
against the wrongful appropriation of a name or title,
fanciful in its nature, there must be added to the
requirement of priority of adoption the further
essential that the title must have been so used as
to have acquired a secondary meaning, which iden-
tifies it in the public mind with a particular com-
position, object or thing. Manners v. Triaatgle Film
Corp., 247 Fed. Eepr. 301, 303; Selig Polyscope Co.
V. Unicorn Film Service Corp., 163 N. Y. Supp.
62; Frohlich on Motion Pictures, 410, § 121. These
two essentials create a right akin to a property right
which equity will protect against an unauthorized
appropriation by another under circumstances that
would work a fraud and deceit upon the public to the
injury of the complainant. Plaintiff claims that the
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UnDERHILL v. ScHENClt. 626
Misc.] Supreme Court, March, 1921.
present situation meets the requirements of the rule.
He daims (1) priority of adoption of the title;
(2) that by the many performances given, the title
acquired a secondary meaning by which it became
identified in the public mind with the spoken play;
and, (3) that the production of the photoplay under
the same title would diminish the financial returns
from the spoken play to his greart: injury. This, the
plaintiff claims, entitles him to invoke the doctrine of
unfair competition.
It has been said that this doctrine rests upon the
principle **of common business integrity*' and that
the gist of the action '* is not the harmless use of the
particular words and symbols, but the appropriation
of a competitor's business to his injury.*' The law
is similar to that relating to trade marks. It is based
primarily upon the theory that no one may, by the use
of names, signs, symbols or marks, perpetrate a
fraud upon the public by indu<5ing the belief that his
business, goods or product is that of another. It has
also been said that fraudulent conduct ** without
damage wiU not suffice " (26 E. C. L. § 57, p. 882) ; also
that the basis of actions of this character is damage
to the complainant and not to the public. Munn <& Co.
V. Americcma Company, L. E. A. 1916 D, 116, 117.
Again, it has been asserted that the doctrine does not
depend entirely upon an invasion of individual rights
but also upon the principle that the public is entitled
to protection against deception and fraud arising
from the use of previously appropriated names and
symbols. Matsell v. Flanagcm, 2 Abb. Pr. (N. S.) 459,
461 ; American Grocer Pub. Assn. v. Grocer Pub. Co.,
51 How. Pr. 402, 403. The true rule, however, seems
to be that equity intervenes to protect both the com-
plainant and the public. Hopkins on Trade Marks
(3d ed.), §§ 21, 22.
Digiti
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526 TJndebhill v. Schenck.
Supreme Court, March, 1921. [Vol. 114.
In my opinion the plaintiff is not entitled to invoke
the doctrine. The copyright law secures to an
author the exclusive right to dramatization, and this
includes the right to produce the drama or composi-
tion as a spoken play and as a picture play, these dis-
tinot rights being originally united in the author or
composer. Kalem Co. v. Harper Bros., 222 U. S. 55.
In the present case, however, the grant from the
author to the plaintiff transferred only the rights of
the former in the spoken play. Whatever rights may
have been acquired by the defendants by subsequent
transfers from the author and his transferees, the
plaintiff has the undoubted right to translate and per-
form as a spoken play. But the plaintiff, in exercising
his admitted right in this respect, discarded the title
of the author and suibstituted his own, adopting the
name ^* The Passion Flower." In my opinion the
plaintiff's act in this respect had a tendency to
deceive the theatre-going public, for the reason that
the public would not generally know that the spoken
drama, produced under the title ** The Passion
Flower," depicted the same plot, characters and
scenes as the copyrighted drama, ** La Malquerida."
Under the title '* Plays of Jacinto Benevente " the
plaintiff himself has copyrighted a book containing
this drama under the name ** La Malquerida." Did
the public generally know that the drama contained
in plaintiff's book was being produced as ** The
Passion Flower f " Did a person, who had read and
possibly disapproved of ** La Malquerida," know that
he was to witness this drama when he purchased a
ticket for '* The Passion Flower f " Whether or not
plaintiff's action in discarding the author's title and
substituting his own subjects him to any criticism
is not a question for me to determine, but it is quite
apparent to me that it cannot be a ground for equi-
Digiti
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TJnderhill v. Schenck. 527
Misc.] Supreme Court, March, 1921.
table intervention. The plaintiff asks equity to com-
pel the defendants to produce this photoplay under
the title which he discarded or under some other title.
The direct result of relief of thds character would
deceive the public as to the identity, in plot, charac-
ters and scenes, of the spoken play with the picture
play. In my opinion the public is entitled to just 8uch
knowledge, and any application for relief in equity
which involves the deception of the public in this
respect does not commend itself to this court. If
equity will enjoin, as it frequently does, the produc-
tion of a photoplay under the same title as the spoken
play because of the diversity of authorship, plot, char-
acters and scenes, it will not compel the adoption of
a different title for the photoplay when the author-
ship, plot, characters and scenes are identical. The
ground upon which equity should intervene in the one
case, and refuse to intervene in the other, is the same.
To prevent any semblance of deception upon the
public, equity will grant or withhold the relief sought
as the occasion may require. In the present case, it
seems to me that the relief which plaintiff asks would
tend to deceive the public into the belief that a pic-
ture play presented under the title *' La Malquerida "
or some other title was not the drama produced under
the title of '' The Passion Flower. ''
Plaintiff complains of the possible injury resulting
from the competition that would arise between the
spoken drama and the picture play about to be pro-
duced by the defendant. That such competition may
result from the «imultaneous production of a spoken
play and a picture play is recognized, and protection
has been frequently afforded a plaintiff against a
defendant who threatened to appropriate, wrongfully,
the title of a spoken play tod give it to a proposed
picture play different in plot, characters, scenes and
Digiti
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528 Underhill v. Schbnck.
Supreme Court, March, 1921. [Vol. 114.
authorship. Usually, in such cases, it will be found
that the entire right of dramatization was in the
plaintiff. Many such cases are cited in Frohlich
on Motion Pictures, beginning on page 413. In the
present case, however, the plaintiff never acquired the
picture rights, and the theory of his action is not the
protection of any rights secured under the copyright.
Plaintiff further contends that the grant to him of
the right to translate and adapt into the English lan-
guage negatives the right of the defendants to pro-
duce the proposed picture play. I do not agree with
this contention. If I am correct in the view that the
plaintiff acquired the rights to the flpoken play only,
the grant of the right to translate must be construed
as limited to the requirements of the spoken play.
Moreover, the defendant, Schenck, disclaims any
intention of appropriating plaintiff's translation,
but claims that he is making a motion picture pro-
duction from the original play.
The plaintiff claims in point 5 of his brief that even
if he did not acquire the right in express terms ta
make a motion picture production of the play, his
*' sole right '* to translate and adapt into English is
sufficient to prevent any such production by another.
Citing Mcmners v. Morosco, 252 U. S. 317-325, 326.
That was a suit to restrain the production of a motion
picture play in violation of the copyright of the com-
plainant, who was the author. The suit involved the
question of infringement. But in point 1 of plain-
tiff's brief he distinctly states that he *' does not com-
plain of any infringement of copyright,*' but that this
lawsuit is brought to test merely the title to literary
property and '* not an invasion or piracy of that prop-
erty.*'^ If the suit were to prevent the production of
a photoplay because of infringement of rights secured
by the copyright, then the suit should have been begun
Digiti
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Bybnb v. McDonough. 529
Misc.] Supreme Court, March, 1921.
in the Federal courts (Frohlich on Motion Pictures,
§ 121; O'Neill v. General Film Co., 171 App. Div. 854-
867) ; but if the purpose of the suit be, as plaintiff
asserts, to prevent the use of the title ** The Passion
Flower,'' on the theory of unfair competition, I am
of opinion that, for the reasons stated, the plaintiff
has shown nothing entitling him to relief in equity.
Why reference was made to the plaintiff in this
action in the agreement made on the 13th day of Octo-
ber, 1920, between the defendants Herndon and
Schenck, I am not called upon to explain or deter-
mine on this motion, for the reason that all of the
facts and circumstances connected with this contro-
versy will undoubtedly be given in detail upon the
trial of this action.
Motion for a preliminary injunction denied.
Motion denied.
Elizabeth B. Byrne, Plaintiff, v. Ellen McDonough,
Defendant.
(Supreme Court, Kings Special Term for Trials, March, 1921.)
Speciflc performance — land contracts — principal and agent —
parol evidence — Statute of Frauds.
While a writing, not under seal, signed for an undisclosed
principal by an agent renders him personally liable, the undis-
closed principal may be held liable upon proof of the signer's
agency.
The fact that the question arises under the Statute of Frauds
does not change this rule, and parol evidence to show the
existence of the principal neither offends the statute nor tends
to vary the terms of the writing.
Where in a buyer's action for the specific performance of
a land contract, not under seal, all disputed questions of fact
were decided in favor of plaintiff, and the only contention
was whether the writing, which was signed by the agent of
84
Digiti
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530 Bybnb v. McDonough.
Supreme Court, March, 1921. [Vol. 114.
the seller whose name did not appear, was a sufficient memo-
randum under the Statute of Frauds, the rule relating to an
undisclosed principal applies, the writing is sufficient, and the
plaintiff is entitled to judgment against the undisclosed
principal.
Action for specific performance of an agreement
for the sale of real property.
Michael J. Joyce, for plaintiff.
Hirsh, Newman & Beass (Benjamin Beass, of
counsel), for defendant.
Cropsey, J. The action is for specific perfornianco
of an agreement for the sale of real property. It is
brought by the buyer against the seller. At the close
of the trial the disputed questions of fact were decided
in favor of the plaintiff. The court took under
advisement the question of the sufficiency of the writ-
ing under the Statute of Frauds. The writing is as
follows: u Brooklyn, N. T. October 21st, 1920.
*' Beceived of Elizabeth B. Byrne sum of Five
Hundred ($500) Dollars as binder on premises 132
Underbill Ave., Brooklyn, N. T., under following
terms and conditions:
'^ Price Twelve Thousand Five Hundred ($12,500)
Dollars.
** Owner to take back a first mortgage for $7,000
for three years at 6% interest payable semi-annually.
** Five thousand ($5,000) to be paid on taking of
title, which is not to be later than December 1st, 1920.
** Lyons & Mason,
'* per F. J. Lyons."
Lyons & Mason, who signed this paper, were the
duly authorized agents of the defendant. The only
Digiti
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Bybnb v. McDonough. 531
Misc.] Supreme Courts March, 1921.
contention made against the sufficiency of the writ-
ing, nnder the statute, is that it is signed by an agent
The name of the defendant does not appear in the
writing. So far as the writing discloses Lyons &
Mason, who signed it, would appear to be the sellers.
There is nothing in the writing to show that they were
merely agents though that was the fact. Where a
writing not under seal is signed by one who is an
agent but which does not disclose his agency or give
the name of his principal the agent is personally
liable. Meyer v. Redmond, 205 N. Y. 478. But the un-
disclosed principal may be held liable upon proof of
the signer *s agency. Navarre H. <& I. Co. v. Amer-
lean Appraisal Co., 156 App. Div. 795, 797; City
Trust, Safe Deposit <& Surety Co. v. American Brew-
ing Co., 182 N. Y. 285 ; Case v. Case, 203 id. 263. And
the fact that the question arises under the Stat-
ute of Frauds does not change the rule. The undis-
closed principal is liable the same as though the
Statute of Frauds was not involved. Dykers v.
Townsend, 24: N. Y. 57; Briggs v. Partridge, 64 id.
357, 362; Langstroth v. Turner Cypress Lumber
Co., 162 App. Div. 818; affd., 220 N. Y. 706. The
Statute of Frauds is satisfied by such a writing
because there is an enforceable agreement and that
statute does not make any change in the law of prin-
cipal and agent as between themselves or as to third
parties. The Statute of Frauds is satisfied if the
names of competent contracting parties appear in the
writing. If the signer is an agent his principal may sue
and be sued. The admission of parol proof to show the
existence of the principal does not offend the statute
nor vary the terms of the writing. The purpose of
the proof is to give effect to the rule that an undis-
closed principal may be held to a contract made by his
authorized agent if the other party elects. See 24 L.
Digiti
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532 Byrne v. McDonough.
Supreme Court, March, 1921. [Vol.114.
R. A. (N. S.) 315-318, note. The rule is different if
the writing is under seal. Then only the parties sign-
ing are liable. Klein v. Mechanics <& Traders Ba/nk,
145 App. Div. 617.
But if an agent signs in a manner indicating that
he is only an agent and so as not to make himself per-
sonally liable but does not disclose his principal then
the writing does not sati&fy the requirements of the
Statute of Frauds and the principal of the signer can-
not be held liable. Mentz v. Newiuitter, 122 N. Y. 491 ;
Ward V. Hasbroiick, 169 id. 407; Mertz v. HiLbhard,
75 Kan. 1; 8 L. R. A. (N. S.) 733-736, note. The
reason underlying these decisions has already been
indicated. It is that under the Statute of Frauds the
writing must constitute an enforceable agreement and
contain, among other essentials, the names of the par-
ti'^s. Grafton v. Cummings, 99 U. S. 100. So where
the writing is executed by an agent in a manner that
does not make him personally liable and his principal
is not named there is no enforceable agreement under
the statute.
Where the writing is signed by an authorized agent
in his individual name, but shows on its face that it is
not his personal obligation and that it is signed only
for his principal who is named in it, it binds the prin-
cipal. Fox V. Hawkins, 150 App. Div. 801 ; Eager v.
Henneherger, 83 Misc. Rep. 417. In th-e situation just
mentioned there is no undisclosed principal. The
principal is liable because he is named in the writing
and the writing is his contract being signed by his
authorized agent.
In the case at bar the agents would be personally
liable and the rule relating to an undisclosed principal
is applicable and hence the writing is sufficient.
The decision already cited, Mentz v. Newwitter, 122
N. Y. 491, seems to have been reached upon the
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KupcHicK V. Levy. 533
Misc.] Appellate Term, First Department, March, 1921.
assumption that the signing by the auctioneer did not
make him personally liable and as the principal's
name did not appear in the writing there was no en-
forceable agreement. Langstroth v. Turner Cypress
Lumber Co., 162 App. Div. 818, 823. With that
assumption in force the decision cannot be ques-
tioned. But in fact the memorandum in that case was
signed by the auctioneer in his own name and not as
an agent and he would seem to have been personally
liable upon it {Meyer v. Redmond, 205 N. Y.
478; see, also, Mills v. Hunt, 20 Wend. 431-433) ; and
so it would seem to have been a case for the applica-
tion of the rule holding an undisclosed principal
liable. But that point apparently was not urged by
counsel or considered by the court and the cases of
Dykers v. Townsend, 24 N. T. 57, and Briggs v. Par-
tridge, 64 id. 357, clearly so holding were not referred
to in either brief or in the court's opinion. Certain
it must be that there was no intention of overruling
those cases or disapproving of the doctriue of holding
an undisclosed principal when ttie subject was not
discussed and no authorities were cited.
Plaintiff is entitled to judgment, with costs.
Judgment for plaintiff, with costs.
Edward Kupchick, Respondent, v, Harry Levy et al..
Appellants.
(Supreme Court, Appellate Term, First Department, January
Term — Filed March, 1921.)
Pledge — when doctrine of estoppel does not apply — conversion
— evidence.
Where in an action for conversion the evidence is convincing
that, notwithstanding a memorandum 8ig:ned by one at the time
Digiti
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534 KupcHicK V. Levy.
Appellate Term, First Department, March, 1921. [Vol. 114^
plaintiff delivered to her a watch, it was to remain the prop-
erty of plaintiff and be returned on demand, she was intrusted
with the possession of the watch for the purposes of sale, she
must be deemed the true owner, and a judgment against the
defendant with whom she pawned the watch will be reversed
and the complaint dismissed.
It appearing that defendant had no knowledge of and did
not rely on any previous dealings between plaintiff and the
pledgor, the doctrine of estoppel did not apply.
McGook, J., concurring.
Appeal by defendants from a judgment of the
Municipal Court of the city of New York, borough of
Manhattan, first district, in favor of the plaintiff.
Michael J. Sweeney, for appellants.
Jacob M. Kram, for respondent.
Gxjy, J. I am of the opinion that the doctrine of
estoppel has no applicability, as the pledgee had no
knowledge qf and did not rely upon any previous deal-
ings between plaintiff and Bonner, the pledgor.
The evidence of plaintiff's salesman is convincing
that notwithstanding the memorandum signed by the
pledgor, she was *' entrusted with the possession *' of
the merchandise in question '* for the purpose of
sale,** and must be '* deemed to be the true owner
thereof *' to the extent of giving validity to her con-
tract with defendant, pledging said merchandise for
moneys advanced to her. Thompson v. Goldstone,
171 App. Div. 666, 668.
Judgment reversed and complaint dismissed, with
thirty dollars costs in this court and costs in the court
below.
MoCooK, J. (concurring). Action for conversion
of a watch. The facts are conceded. Plaintiff is a
jeweler in this city. In January, 192^,^ ^e delivered
Digiti
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KupoHicK V. Levy. 535
Misc.] Appellate Term, First Department, March, 1921.
to one Anna Bonner a watch of the value of $400, at
the same time taking from her a receipt or memo-
randum upon which was printed the following :
** These goods are sent for your inspection and
remain the property of Ed. Kupchick, and are to be
returned on demand. Sale takes effect only from date
of approval of your selection, and bill of sale
rendered."
The Bonner woman pawned the watch with defend-
ants, obtaining the sum of $250 thereon. Defendants
had no knowledge of this transaction, or of other deal-
ings between plaintiff and Anna Bonner. After the
death of the woman, plaintiff, by the aid of the police,
located the watch in defendants' pawnshop and de-
manded same. Defendants refused to deliver the
watch unless they were repaid the loan made to Anna
Bonner, with interest. Plaintiff brings this action to
recover the value of the watch.
Plaintiff's salesman, who delivered the watch to
Bonner, testified that he had delivered goods to her
on six, seven or eight occasions, a receipt similar to
the one in this case being given. He stated that on
some occasions she returned the goods, and on others
paid for them. Plaintiff had been doing business with
her in this manner for about eighteen months. He
further testified that when persons take articles out
on memorandum ** some of them take them out for
sale and some of them for themselves." '* When we
give out to people, we don't ask what they are going
to do with the watch." '* I don't know what she done
with the article; it is not my business what she is
doing with it. We take it a memorandum. If they
don't return that article, they have to pay for the
article."
Plaintiff's contention is that title did not pass, and,
therefore, he is entitled to recover his property or its
Digiti
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536 KupcHicK V. Levy.
Appellate Term, First Department, March, 1921. [Vol.114.
value. Defendants claim that while it may be true
title did not pass, nevertheless under the circum-
stances plaintiff is estopped from asserting title
against a bona fide purchaser or lienor such as defend-
ants. Smith V. Clews, 114 N. Y. 190. They also rely
on the Factors' Act.
The Factors' Act is section 43 of the Personal Prop-
erty Law, and subdivision 1 reads as follows :
*' Every factor or other agent, entrusted with the
I>osse8sion of any bill of lading, custom-house i>ennit,
or warehouseman's receipt for the delivery of any
merchandise, and every such factor or agent not hav-
ing the documentary evidence of title, who shall be
intrusted with the possession of any merchandise for
the purpose of sale, or as a security for any advances
to be made or obtained thereon, shall be deemed to
be the true owner thereof, so far as to give validity
to any contract made by such agent with any other
person, for the sale or disposition of the whole or
any part of such merchandise and any account receiv-
able or other chose in action created by sale or
other disposition of such merchandise, for any money
advanced, or negotiable instrument or other obliga-
tion in writing given by such other person upon the
faith thereof."
In Thompson v. Goldstone, 171 App. Div. 666, 668,
the court construed this section as follows: ^* The
expression in the final sentence of subdivision 1 of
section 43 of the Personal Property Law (Factors*
Act), * upon the faith thereof,' means upon the faith
of such possession." The court in the Thompson
case also said (p. 668): ''Notwithstanding that
there may have been this limitation upon the agency
of Shattuck, if the defendant appeared as an inno-
cent person who dealt with Shattuck in reliance upon
Shattuck 's apparent ownership resting upon his jws-
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Sneddon v. Payne. 537
Misc.] Appellate Term, First Department, March, 1921.
session, the defendant conld not be affected by the
character of such possession of which the defendant
had no notice, either actual or constructive. '' See,
also, Schmidt v. Simpson, 204 N. Y. 434, 438.
Judgment reversed, complaint dismissed, with
thirty dollars costs in this court and costs in court
below.
J. Stuabt Sneddon, Eespondent, v. John Barton
Payne, Director General of Railroads, etc.,
Impleaded, etc.. Appellant.
(Supreme Court, Appellate Term, First Department, January
Term — FUed March, 1921.)
Negligence — action to recover for loss of a handbag — master
and servant — evidence — bailments.
While the conductor was examining and stamping the tickets
of plaintiff, a Pullman passenger, the porter carried into the
car plaintiffs luggage, consisting of overcoat, portfolio and
handbag, and when not to exceed two minutes later plaintiff
went into the car he found only his overcoat and portfolio. In
an action against the director-general of railroads, ' as agent,
to recover for the loss of plaintiff's handbag through the alleged
negligence of defendant's servant, it appeared that while the
examination of plaintiff's tickets was in progress the porter,
whom it did not appear was a servant of defendant, came out
of the ear empty handed and left after being tipped by plain-
tiff. Held, that it could not be assumed that the bag was left
in the custody of defendant so as to make it liable as an
insurer.
There being no basis in the evidence for a finding of negli-
gence on the part of defendant a judgment in favor of plaintiff
will be reversed and the complaint dismissed.
Appeal by defendant Payne from judgment of the
Municipal Court in the city of New York, borough of
Manhattan, ninth district, in favor of plaintiff.
Digiti
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538 SiTEDDON V. Paynb.
Appellate Term, First Department, March, 1921. [YoLlli.
Alexander & Green (H. G. Ogden, of eonnsel), for
appellant.
Beed, Dougherty & Hoyt (J. Hampden Dougherty,
Jr., and J. W. Schoenfeld, of counsel), for respondent.
Gut, J. In this action against director general of
railroads, as agent, plaintiff, a Pulhnan passenger on
the Baltimore and Ohio system, has recovered judg-
ment for $200 for the loss of his handbag through the
alleged negligence of defendant's servants.
Plaintiff testified that about nine o'clock on the
night of November 28, 1919, he purchased transpor-
tation and Pullman tickets from Chicago to Akron, 0. ;
that he left the waiting room of the depot, got a red
cap porter to take over his bag, overcoat and port-
folio ; stopped to send a telegram, keeping his eye all
the time on the porter; i)assed through the gate after
the gateman punched his ticket, and proceeded along
the train platform to the entrance to the Pullman
car; that he then attempted to board the car but was
stopped by the Pullman porter, who asked plaintiff
to give his ticket to the Pullman conductor, who was
standing alongside; that there was one Pullman
porter on the car for which plaintiff purchased a
ticket ; that there were several other passengers wait-
ing to be taken care of by the Pullman conductor, and
plaintiff again attempted to go on the car, but was
asked by the Pullman conductor to wait and surren-
der his ticket; that the red cap porter then pro-
ceeded into the car carrying plaintiff's luggage, con-
sisting of overcoat, portfolio and handbag with him;
that the Pullman conductor and the porter then exam-
ined plaintiff's tickets, and while they were making
the examination the red cap porter came out of the
car empty-handed, having been inside the car about
Digiti
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Sneddon v. Payne. 539
Mise.] Appellate Term, First Department, March, 1921.
a minute or a minute and a lialf ; that when his
tickets had been stamped by the Pullman conductor
plaintiff went into the car, looked for his luggage,
found only the overcoat and portfolio, but never
found his bag. When the red cap porter came out
of the car plaintiff tipped him, and the red cap porter
then left. Not finding his bag plaintiff immediately
notified the Pullman porter and the conductor and
later the conductor of the train, and they all looked
for the bag, but without result.
The facts do not warrant the assumption that the
bag was left in the custody of the defendant so as to
make defendant liable to plaintiff as an insurer. It
does not appear that the red cap porter was the
servant of the defendant; the facts indicate the con-
trary, and the trial judge apparently so decided. Nor
is it satisfactorily established that the bag was left
in the car. Assuming, however, that the red cap
porter left the bag in the car, plaintiff to make out
his case was required to show that his loss was sus-
tained through defendant's negligence {Goldstein v.
PuLlmm Co., 220 N. Y. 549; Hashrouch v. New York
Central dk H. R. R. R. Co., 202 id. 363 ; Holmes v. North
German Lloyd 8. S. Co., 184 id. 280), and a finding of
negligence against the defendant must be based upon
the proposition that during the period of about two
minutes which elapsed from the entry of the red cap
porter upon the car until plaintiff entered, it was the
duty of defendant's servants to have kept their eyes
upon plaintiff's property; and that therefore the mere
loss of the bag under the circumstances testified to
made out a prima facie case. The ruling imposing lia-
bility on the defendant is not so rigorous. Goldstein
V. Pullman Co., supra, 552, 553. In the case cited
the passenger's property disappeared during the
night while the passengers were in their sleeping
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540 O^CoNNEU^ V. Sugar Products Co.
Appellate Term, First Department, March, 1921. [Vol.114.
berths, at which time the sleeping car company is
required to be vigilant so that the passenger may not
lose his property through the company's inattention.
In this case, however, we see no basis for a finding oi
negligence on the part of the defendant.
Respondent makes the point that twice plaintiff was
prevented from following the red cap porter into the
car, and that the loss would not have happened if the
conductor had allowed him access at the same time
with the porter. This is undoubtedly true ; but plain-
tiff's jmssage was barred, in accordance with a rea-
sonable regulation, to give defendant an opportunity
to examine his tickets; his progress was not stopped
for more than two minutes ; and it could not have been
reasonably anticipated that the slight delay to which
he was subjected in common with other passengers
would result in the loss of his property.
Judgment reversed, with thirty dollars costs, and
complaint dismissed, with costs in the court below.
McCooK, J., not sitting.
Judgment reversed, with thirty dollars costs.
Ellen A. 0 ^onnell. Respondent, v. Sugar Products
Company, Appellant.
(Supreme Court, Appellate Term, First Department, January
Term — Filed March, 1921.)
Pleading — action for rent — sob-tenant — eviction — counter-
claim.
In an action for rent an answer pleading as a defense the
eviction of defendant's sub-tenant, and, as a counterclaim, the
damages resulting from such eviction, is on its face sufficient,
and a judgment in favor of plaintiff and for the dismissal of
the counterclaim will be reversed and a new trial granted.
Digiti
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O'CoNNBLL V. Sugar Products Co. 541
MiBc] Appellate Tearm, First Department| Mareh, 1921.
Appeal by the defendant from a judgment of the
Municipal Court of the city of New York, borough of
Manhattan, fifth district, in favor of plaintiff, and dis-
missing defendant's counterclaim.
Seligsberg, Lewis & Strouse (Clarence M. Lewis
and Jay Leo Rothschild, of counsel), for appellant.
Francis Colety, for respondent.
Wagner, J. The trial judge correctly stated the
existing rule to be that where a lessee sublets the
demised premises for the unexpired term the trans-
action in effect, as far as the original lessor is con-
cerned, is an assignment of the lease, and the original
lessor can proceed against the so-called sub-lessee as
assignee of the term. Stewart v. Long Island R. JR.
Co., 102 N. Y. 601.
We incline to the view that the dissenting opinion
of Judge Finch in the case cited enunciates a better
rule governing assignment and subletting; but, as the
dissenting judge himself says in his opinion, the old
fiction which was deemed to have been disposed of by
prior decisions of the Court of Appeals {Collins v.
Hasbrouck, 56 N. Y. 157; Ganson v. Tifft, 71 id. 54;
Post V. Kearney, 2 id. 394) *' regains its old power and
begins a new reign. The doctrine which I thought
should be dethroned invites to its coronation. I must
be permitted to decline."
However, the trial judge in this case overlooked the
fact that we must consider between what parties the
question arises. Here it arises between the original
lessor and lessee, not, as in the Stewart case, between
the original lessor and lessee's transferee. Under the
doctrine of the Stewart case, between the original
lessee and his lessee or transferee, even though the
original lessee demises his whole term, if the parties
Digiti
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542 O'CoNNELL V. Sugar Prodttcts Co.
Appellate Term, First Department, March, 1921. [Vol. 114.
intend a lease the relation of landlord and tenant as
to all but strict reversionary rights will arise between
them. 102 N. Y. 608. So that here, as it clearly
appears from defendant's pleading that the intention
of the defendant and its transferee, United Realty
Alliance, Inc., was a subletting of the premises, under
an instrument which reserved the payment of rent to
the lessee in monthly installments exceeding by fifteen
dollars the monthly rent specified in the original
lease, the relation of landlord and tenant exists
between the tenant and the United Realty Alliance,
Inc., and the transaction as pleaded must be regarded
as a subletting and the lessee in this action by the
lessor to recover rent has a right to set up an eviction
of its sub-tenant as a defense, and damages resulting
from the eviction as a counterclaim. In short, the
question in this action is what are the rights of the
lessee as against the original lessor under the facts
pleaded, not what are the rights of the original lessor
and the United Realty Alliance, Inc., as between them-
selves.
It appearing from the answer that plaintiff has pre-
vented defendant's tenant from taking possession of
the premises, such an interference on the part of the
original lessor would authorize a finding of eviction
(Burn V. Phelps, 1 Stark. 94; Lawrence v. French, 25
Wend. 443 ; Doran v. Chase, 2 Wkly. Notes [Pa.], 609 ;
2 McAdam Landl. & Ten. [4th ed.] 1414, § 414), and
the plea considered as a defense and counterclaim is
on its face sufficient.
Guy and McCook, JJ., concur.
Judgment reversed and new trial granted, with
thirty dollars costs to appellant to abide event
Digiti
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iNTEBNATIONAIi ChEESE Co. V. GabRA. 543
Misc.] Appellate Term, First Department, March, 192L
International Cheese Company, Appellant, v. Gab-
TANo Garra and Another, Eespondents.
(Supreme Court, Appellate Term, First Department, February
Term — Filed March, 1921.)
Bales — when property in goods delivered to a carrier for trans-
mission passes to the buyer — contracts — evidence —
damages — Personal Property Law, §§ 100, role 4 (1, 2)»
144(1).
Under subdivisions 1 and 2 of rule 4 of section 100 of the
Personal Property Law the property in goods delivered to a
carrier for transmission passes to the buyer and the seller may
sue for the purchase price unless subsequently he accepts a
return of the goods.
In an action under section 144(1) of the Personal Property
Law to recover the purchase price of goods sold because of the
buyer's alleged wrongful neglect or refusal to pay according
to the terms of the contract of sale, it appeared on cross
examination of plaintiff's witnesses that at the time of defend-
ant's refusal to accept, there was an available market for the
goods which were still in the warehouse where they had been
placed by plaintiff upon defendant's refusal to accept, though
they had, at the time of the trial, depreciated in value. Held,
that a dismissal of the complaint on the ground that plaintiff's
sole remedy was an action for damages for defendant's non-
acceptance of the goods, was error.
The erroneous exclusion of evidence which undoubtedly would
have shown that plaintiff took back the goods only for the
protection of the buyer calls for the reversal of a judgment
dismissing the complaint and awarding costs to defendant, and
the granting of a new trial.
Appeal from a judgment of the City Conrt of the
city of New York, entered November 8, 1920, dismiss-
ing the complaint and awarding the defendants
$322.35 costs.
Smith & Tomlinson (Henry Willis Smith, of coun-
sel), for appellant.
Guido J. Guidici, for respondents.
Digitized by VjOOQIC
544 Ihtebnational Cheese Co. v. Garra.
Appellate Tenn, First Department, March, 1921. [yoL114.
Lehmai!^, J. The complaint herein alleges in sub-
stance that plaintiff's assignors entered into a con-
tract with the defendants whereby they agreed to
** sell and deliver promptly by the Clyde Line to the
defendants free on board at the city of Philadelphia,
25 cases of South American Percorino type cheese,
the same as sample case sold and delivered to the
defendants '' previously. The defendants agreed to
accept the said twenty-five cases if like sample, and
pay therefor the sum of thirty-three cents per pound
within thirty days from the time of such shipment.
The complaint further alleges that plaintiff's assign-
ors promptly shipped the cheese in accordance with
the contract by the first vessel of the Clyde Line to
sail from the city of Philadelphia to the city of New
York subsequent to the making of the agreement; that
the defendants thereafter and before the ship had
arrived at its port of destination notified the plain-
tiff's assignors that they desired to cancel the agree-
ment. The plaintiff's assignors promptly notified
the defendants that they refused to accept such can-
cellation, but the defendants refused to accept such
goods upon their arrival in New York, or to pay for
them pursuant to the agreement but shipped them
back to Philadelphia. The sellers immediately noti-
fied the defendants by letter of their refusal to accept
the return of the goods, and that they left it to said
defendants to take care of the same; that thereafter
on failure of the defendants to do so the plaintiff, as
assignee of all the interests and property of the sellers
and for the protection of the defendants, stored the
said goods in the city of Philadelphia for the account
of the defendants as their agents; that the plaintiff
by the said breach of said agreement on the part of
the defendants has been damaged in the amount of
the purchase price and cartage and storage upon the
goods returned. At the trial the plaintiff offered evi-
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iNTEBNATIONAIi ChEESE Co. V. GaBRA. 545
Misc.] Appellate Term, First Department, March, 1921.
dence to sustain all the allegations of the complaint,
but on cross-examination its witnesses showed that at
the time of defendants' refusal to accept there wae an
available market for the goods in question, and fur-
ther that the goods were still in the warehouse where
they had been placed by the plaintiff upon the def end-
ants ' refusal to accept, though they had at the time of
the trial deteriorated in value. Upon these facts
appearing, the trial justice held that the plaintiff's
sole remedy was an action for damages for the non-
acceptance of the goods, and that if the plaintiff elected
to proceed upon the theory that it was entitled to
recover the purchase price he must dismiss the com-
plaint. The plaintiff's attorney thereupon stated
that he was proceeding under subdivision 1 of section
144 of the Sales Act, and the trial justice dismissed
the complaint.
Subdivision 1 of section 144 of the Personal Prop-
erty Law provides that where under a contract to
sell or a sale the property in the goods has passed
to the buyer, and the buyer wrongfully neglects or
refuses to pay for the goods according to the terms
of the contract or the sale, the seller may maintain
an action against him for the price of the goods.
There can be no doubt but that under subdivisions 1
and 2 of rule 4 of section 100 of the Personal Prop-
erty Law the goods were unconditionally appropri-
ated to the contract upon delivery to the carrier for
the purpose of transmission to the buyer, and that
upon such delivery the property passed to the buyer.
It follows that the plaintiff has a right of action for
the price of the goods, unless he has subsequently
accepted the return of the goods, and thereby the
property in the goods passed back to the seller. In
the present case the evidence offered by the plaintiff,
although erroneously excluded by the court, would
35
Digiti
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546 SCHAEFER V. StEUERNAQELi.
Appellate Term, First Department, March, 1921. [Vol. .1]4,
undoubtedly show that the seller took back the goods
only for the protection of the buyer and did not
thereby divest the buyer of the property which had
already passed upon the delivery to the carrier.
It follows that the judgment should be reversed and
a new trial ordered, with costs to appellant to abide
the event.
MuLLAN and Burb, JJ., concur.
Judgment reversed and new trial ordered, with,
costs to appellant to abide event.
David Schaefer, Eespondent, v. Adam Steuernaqel,
Appellant.
(Supreme Court, Appellate Term, First Department, February
Term — Filed March, 1921.)
Vendor and purchaser — contract for sale of real estate — when
vendee cannot recover down pajrment — evidence — trial —
Real Property Law, § 259.
Under section 259 of the Real Property Law the vendee is
not required to sign a contract for the sale of realty. (P. 548.)
Where a contract for the sale of realty was not signed by
the vendee, he may not, in an action on the contract, to which
the Statute of Frauds might be pleaded in bar, recover his
down payment on the purchase price, unless the failure to
perform the contract is ascribable to the vendor. (Pp. 548,
549.)
The trial court, upon the sole ground that the contract did
not bind the plaintiff because he had not sig^ned it, refused on
objection of plaintiff's counsel to receive the contract in evi-
dence, and for the same reason gave judgment in favor of
plaintiff.. All offers of testimony by defendant tending to
Digiti
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SCHAEFEB V. StEUBRNAGEL. 547
Misc.] Appellate Term, First Department, March, 192L
show that he had acted in good faith and was at all material
times ready, willing and able to complete the transaction, were
excluded on the ground of immateriality. Held, that the view
taken by the trial court was erroneous, and that as plaintiff
had not made out a prima fade case the testimony excluded,
though not necessary at the time offered, was very material,
and the judgment must be reversed and a new trial ordered.
Appeal by defendant from a judgment of the
Municipal Court of the city of New York, borough of
Bronx, second district, in favor of plaintiff, after
trial by the court without a jury.
Peter Klein, for appellant.
Solomon Goodman, for respondent.
MuTiTiAN, J. The parties were negotiating for the
sale by defendant to plaintiff of a parcel of improved
realty. They came, wholly orally, to an agreement,
and plaintiff made a down payment of $200 on account
of the purchase price. According to arrangement,
they met on a later day at the oflBce of defendant's
attorney. Some slight readjustments of terms were
agreed to, and then a new question arose, involving
a chandelier valued by the parties at $15, and defend-
ant agreed to plaintiff's demand as to that. A writ-
ten contract was thereupon prepared, and it was
signed by the defendant and his wife, but although
it would seem — we purposely refrain from so decid-
ing, however — that the minds of the parties met as
to all essential particulars, the plaintiff refused to
sign and then and thereafter refused to go forward
with the matter. Whether the written instrument
signed by the defendant correctly embodied the terms
agreed upon does not appear, as the learned trial
justice refused, upon an objection of plaintiff's coun-
sel, to admit it in evidence, upon the stated ground
Digiti
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548 SCHAEFER V. SxEUERNAGEL.
Appellate Term, First Department, March, 1921. [Vol. 114.
that it did not bind the plaintiff for the reason that
he did not sign it; and it was for the same reason,
and that alone, that he gave judgment to plaintiff for
the amount of his down payment.
The signature of a vendee of realty is not required
to give validity to a contract for its sale; it is only
the vendor who must sign. Real Prop. Law, § 259;
Quinto V. Alexander, 123 App. Div. 1. But, as the
record stands, the question cannot be decided, whether
an enforceable contract was made by the signed writ-
ing on the part of the defendant and a reciprocal oral
engagement on the part of the plaintiff. The plain-
tiff's theory upon the trial seems to have been that
merely because he did not sign the agreement, he was
entitled to recover back his earnest money. That, at
least, was the sole consideration moving the trial jus-
tice to award judgment for the plaintiff. Plaintiff's
counsel did, indeed, seem to think that it was open
to him to show that the minds of the parties did
not meet, but the testimony on this head was meagre,
and of a merely casual and incidental character, and
the matter was not seriously gone into, possibly
because of the position consistently held by the learned
trial justice that, regardless of any other considera-
tion, the plaintiff must recover because he had not
signed an agreement. The informal complaint was
for *' money had and received. Payment demanded
and refused," and the answer was a general denial.
Whatever plaintiff's original theory may have been,
his theory during the trial seems to have been that
upon proof of a failure on his part to sign, and upon
that alone, he was entitled to his earnest money. That
was a misconception. Assuming, as plaintiff did, that
the agreement was unenforceable because of a non-
compliance with the realty Statute of Frauds, that of
itself did not entitle him to a return of his payment on
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ScHABFEB V. Steuernagbl. 549
Misc.] Appellate Term, First Department, March, 1921.
account. A vendee who has paid money on account of
a contract that cannot be enforced because of the
Statute of Frauds, may recover back his down pay-
ment only if the failure to perform is ascribable to the
vendor. Although he cannot successfully sue upon
the contract, he is entitled to a return of the money
he has paid, provided, however, that the failure of
the transaction to ripen into a grant does not lie at
his own door. Abbott v. Draper, 4 Den. 51 ; Collier v.
Coates, 17 Barb. 471 ; Grahnm v. Eedly, 154 App. Div.
76; Fleischmcm v. Flock, 19 Misc. Rep. 649; L. R. A.
1916 (D) 468 et seq. The principle to be drawn from
the cases is that a vendee who has a contract for the
sale of realty against which the Statute of Frauds
may be set up as a bar, has been impliedly promised
by the vendor that the latter will return to the vendee
such moneys as have been paid by him on account in
case the vendor is unwilling or unable to perform.
It would seem to- follow that the burden is upon the
vendee of showing that the fault was not his, and that
it was the vendor who was either unwilling or unable
to perform. As was said by Bronson, Ch. J., in Abbott
V. Draper, supra: *^ When the vendor refuses to go
on with the contract, or has parted with his title so that
he cannot perform, he is then in the wrong; and
having himself put an end to the contract, there is no
longer any consideration for the payments which have
been made under it ; and the law will imply a promise
to restore the money. But how can the law imply a
promise to refund the money so long as the vendor is
not in default? The payment was a voluntary one,
made with the full knowledge of all the facts. Every
time a payment was made and received, the parties vir-
tually said, although the law will not enforce this con-
tract, we will go on and carry it into effect. The
money is not received as a loan; but as a payment;
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550 SCHAEFER V. SxEUERNAOEL. I
Appellate Term, First Department, March, 1921 [Vol.114.
: '
and 80 long as the vendor is able and willing to per- |
form the contract on his part, he holds the money |
as owner, and not as a debtor. The consideration upon i
which the money was paid has not failed; and there i
is nothing from which a promise to repay can be justly
implied.*' And that the burden of putting the vendor
in the wrong is upon the vendee in such a case as this, i
has been expressly held in other jurisdictions. Laffey i
V. Kaufmcm, 134 Cal. 391 ; Lewis v. WhitneU, 21 Ky. i
190; Cave v. Osborne, 193 Mass. 482.
The vendor in the case at bar assumed a burden that
was not properly his. He made numerous attempts
to show that he had acted in good faith, and was at
all material times ready, willing and able to carry the
transaction through to completion, thus putting the
plaintiff in the wrong, but the court ruled that the
proofs were immaterial, and excluded them. They
were very material in their nature, but they were
unnecessary at that stage, for the plaintiff had failed
to make his own essential prima facie proofs upon the
subject. Had the case been tried upon the proper
theory, we should feel called upon to dismiss the com-
plaint, but as the erroneous view of the trial court may
very possibly have misled the plaintiff's counsel, we
have decided to send the case back for a new trial.
Lehman and Bxjrb, JJ., concur.
Judgment reversed, new trial ordered, with thirty
dollars costs to appellant to abide event
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PuBLicKER Commercial Alcohol Co. v. Roberts. 551
Misc.] Appellate Term, First Department; March, 1921.
Ptjblicker Commercial Alcohol Co., Appellant, v.
Robert M. Roberts, Respondent.
(Supreme Court, Appellate Term, First Department, February
Term — Filed March, 1921.)
Contracts — action for breach of a contract of shipment — foreign
stock corporations — interstate commerce — Stock Corpora-
tion Law, § 15.
In an action by a foreign stock corporation for breach of a
contract of shipment from one state to another, no question
under section 15 of the Stock Corporation Law of the state
. of New York is properly in the case.
Sioux Remedy Co. v. Cope, 235 U. S. 197, followed.
Appeal by plaintiff from a judgment of the Munic-
ipal Court of the city of New York, borough of Man-
hattan, first district, dismissing the complaint at the
close of the plaintiff's case.
Ludwig M. Wilson, for appellant.
David J. Gladstone, for respondent.
MuLLAN, J. The plaintiff, a Pennsylvania stock cor-
poration, sues for breach of a contract made by it
with defendant for the sale by the plaintiff to the
defendant, of alcohol, to be shipped from Pennsyl-
vania to the defendant in New York. The complaint
was dismissed at the close of plaintiff's case upon the
ground that it then appeared that the contract was
made in this state, that the plaintiff was doing busi-
ness in this state, and that it had not procured the
certificate authorizing it to do business in this state
required by the provisions of section 15 of the General
Corporation Law. The errors assigned by the plain-
tiff are that the proofs did not show that the plaintiff
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552 PuBLiCKER Commercial Alcohol Co. v. Roberts.
Appellate Term, First Department, March, 1921. [Vol.114.
was doing business in this state, that the burden was
improperly placed upon the plaintiff of showing that
it was not doing business in this state, and that the
court allowed defendant to make one of plaintiff's wit-
nesses, who testified concerning the sale and deliverj%
the defendant's witness during plaintiff's case, to
show that plaintiff was doing business within this
state. While we may, without expressing any opinion
as to the other points, avail, in the reversal we have
agreed to, more particularly of the last named ground,
there is a much more serious and fundamental error not
referred to either upon the trial or in the briefs here.
The transaction here in question was obviously one
in interstate commerce, and the United States
Supreme Court has held that a statute of South Dakota,
substantially similar to sections 15 and 16 of our Gen-
eral Corporation Law, was, in so far as it was capable
of restricting or interfering with foreign or interstate
commerce, repugnant to the commerce clause of the
federal constitution, and thus void; and that the
requirement of a certificate and the designation of an
agent did unduly restrict and interfere with trans-
actions in foreign or interstate conmierce. Sioux
Remedy Co. v. Cope, 235 U. S. 197. There was, there-
fore, no question in relation to section 15 of the Gen-
eral Corporation Law properly in the case.
Judgment reversed, and new trial ordered, with
thirty dollars costs to appellant to abide the event.
Lehman, J., concurring in reversal, but without
passing upon the right of defendant to avail him-
self of section 16 of the General Corporation Law.
Judgment reversed and new trial ordered, with
thirty dollars costs to appellant to abide event.
Digiti
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H. & K. C. Co., Inc., v. Maison B. Imp. Co., Inc. 553
Misc.] Appellate Term, First Department, March, 192L
H. & K. Costume Co., Inc., Respondent, v. Maisok
Bebnakd Importing Co., Inc., et al., Appellants.
(Supreme Court, Appellate Term, First Department, February
Term — Filed March, 1921.)
Negotiable instmmente — promissory notes and trade accept-
ances — corporations — evidence.
Where at the commencement of actions on promissory notes
and trade acceptances, the corporation maker was in bank-
ruptcy, the individual defendants, who were sought to be held
as makers and indorsers, in support of their contention that
their initials on the notes were neither intended nor understood
by plaintiff to be other than part of the corporation signature,
are entitled to show that by a resolution of the corporation
adopted long prior to the making of the notes and acceptances
in question, it had been determined that no signature of the
eorporation to any negotiable paper would be honored or paid
unless the same was initialed by said individual defendants,
and that the banks were so noticed and as matter of fact had
refused to pay notes made by the corporation to plaintiff
because of the lack of such initials, and the exclusion of the
evidence was reversible error for which judgments in favor of
plaintiff will be reversed and new trials ordered.
Appeal by the defendants Homick and Lnnenfeld
from judgments of the Municipal Court of the city of
New York, borough of Manhattan, third district, in
favor of plaintiff.
Zalkin & Cohen (Moses Cohen and David M. Pelley,
of counsel), for appellants.
Isidor Cohn, for respondent.
Burr, J. Actions to recover on promissory notes
and trade acceptances. These actions are six in num-
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554 H. & K. C. Co., Inc., v. Maison B. Imp. Co., Inc.
Appellate Term, First Department, March, 1921, [Vol.114.
ber. Each action is brought against the Maison Ber-
nard Importing Corporation. In four of the actions
Ottilie Hornick is joined as defendant, and in two of
the actions Julius Lunenfeld is joined as defendant.
The actions in which Maison Bernard Company and
Ottilie Hornick are joined are on promissory notes.
The following is a specimen:
'' $507.21 New York, February 24, 1920
'^ On April 6, 1920 we promise to pay to the order
of H. & K. Costume Co.
*' Five hundred and seven 21/100 Dollars.
'' Payable at Bankers Trust Co. 5th Ave. & 42nd
Street. Value received with int. at 6% p.a.
'' No rhie April 6. 1920.
** Maison Bernard Imp. Co.
** O. H. Bernard,
'' Pres/
The two actions in which Julius Lunenfeld is made
co-defendant with the Bernard Importing Company
are brought to recover in each case on a so-called
** trade acceptance " reading as follows:
** No. — New York, March 15, 1920.
** To Maison Bernard Importing Co. 734 5th Ave. :
'' On April 8, 1920, Pay to the order of Ourselves,
Five hundred and ninety-two 31/100 Dollars ($592.31).
'' Trade Acceptance
** The obligation of the acceptor hereof arises out
of the purchase of goods from the drawer. The drawee
may accept this bill payable at any bank, banker or
trust company in the United States which he may
designate.
** Accepted at New York on March 15, 1920.
Digiti
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H. & K. C. Co., Inc., v. Maison B. Imp. Co., Inc. 555
Misc.] Appellate Term, First Department, March, 1921.
** Payable at New York Trust Co. Bank Location
5th Ave. & 57th St.
** Buyer's signature, Maison Bernard Importing Co.
** By Agent or OflBcer, Mrg. Bernard,
'' Pres.
** J. L. H. & K. Costume Co. Inc.
** By Louis Kahn,
'' Pres/'
" No. — New York, March 15, 1920.
'* To Maison Bernard Importing Co. 734 5th Ave.
On March 26th, 1920. Pay to the order of Ourselves
Six hundred and forty-seven 25/100 Dollars ($647.25)
" Trade Acceptance
** The obligation of the acceptor hereof arises out
of the purchase of goods from the drawer. The
drawee may accept this bill payable at any bank,
banker or trust company in the United States which
he may designate.
** Accepted at New York on March 15, 1920.
'' Payable at New York Trust Co.
'' Bank location 5th Ave. & 57th St.
*^ Buyer's signature, Maison Bernard Importing Co.
** By Agent or OflScer
*^ Mrg. Bernard,
" Pres.
" J. L. H. & K. Costume Co. Ino.
** By Louis Kahn,
''Pres/'
The Maison Bernard Importing Company was not
served in any of the cases, that company being at the
time the actions were brought in bankruptcy.
The actions are brought against the defendant
Homick on the theory that she signed as a maker of
the notes in suit,
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556 H. & K. C. Co., Inc., v. Maison B. Imp. Co., Ino.
Appellate Term, First Department, March, 1921. [Vol. 114.
The actions are brought against the defendant
Lnnenfeld on the theory that he was an acceptor of
the trade acceptances.
These defendants deny that their initials mean any-
thing more or were intended to mean or to be anything
more than part of the signature of the Maison Bernard
Importing Corporation, of which they were officers at
the time the papers were signed, and sought to show
that plaintiff well knew this to be the fact and that
such initials were required to be placed on any trade
or negotiable paper of the Maison Bernard Importing
Company before the same would be honored or paid
by the bank on which the same were drawn.
Plaintiff's claim is that he refused to give the
Maison Bernard Company any further credit and that
to secure such further credit Lunenfeld and Homick
agreed to sign or indorse the paper of the Bernard
Company, and that the initials on the papers in suit
were intended to be the signatures of the defendants
as makers or indorsers of said paper.
The defendants produced the minute book of the
corporation to show that by a resolution adopted long
prior to the making of the notes and acceptances in
question, it had been determined that no signature of
the corporation to any promissory note, draft or nego-
tiable paper would be honored or paid unless the same
was initialed by Homick and Lunenfeld, and that the
banks were so notified and had as a matter of fact
refused to pay notes made by the corporation to the
plaintiff because of the lack of such initials. Defend-
ants sought to prove this in support of their conten-
tion that their initials were not intended to be nor were
they understood by plaintiff to be anything other than
part of the corporation signature, and not special sig-
natures of the defendants whereby they made and
intended to make themselves personally liable to plain-
Digiti
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GiTZBLTER V. Grossman. 557
Misc.] Appellate Term, First Department, March, 1921.
tiflP on this paper. This evidence was ruled out by the
trial judge, and in my opinion this was prejudicial
error which requires that the judgment should be
reversed.
Lehman and MuiiLAN, JJ., concur.
Judgments reversed and new trial ordered, with five
dollars costs in each action to appellants to abide
event.
Nathan Gitzelter, Eespondent, v. Herman Grossman,
Appellant.
(Supreme Court, Appellate Term, First Department, February
Term — Filed March, 1921.)
Vendor and purchaser — when money paid as part of purchase
price of real estate cannot be recovered — contracts.
Where in an action to recover money paid as part of the
purchase price for the sale of real estate, it appears that
plaintiff, upon tender of the contract as agreed to, refused to
accept, insisting that it should recite " subject to violations to
date of taking title," to which defendant did not agree, the
plaintiff is not entitled to recover, and a judgment in his favor
will be reversed and the complaint dismissed.
Appeal by defendant from judgment of the Munic-
ipal Court of the city of New York, borough of Man-
hattan, eighth district, in favor of the plaintiff.
Morris Kohn, for appellant.
Frank E: Silverman, for respondent.
BuKB, J. The action was brought to recover the
sum of $100 received from plaintiff by defendant as
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558 GrrzELTEs v. Gbossman.
Appellate Term, First Department, March, 1921. [Vol.114.
part of the purchase price for the sale of real estate
by the defendant to the plaintiff.
On February 19, 1920, an agreement was entered
into between plaintiff and defendant which reads as
follows :
** I hereby acknowledge receipt of One Hundred Dol-
lars ($100) as deposit from Nathan Gitzelter of Man-
hattan to be applied towards the purchase price of prem-
ises #245 East 104th Street. The purchase price is
$8,062 & 50/100. Eight thousand and Sixty-two 50/100
Dollars. The premises are subject to $4,000 first
mortgage at 5%. Four hundred ($400) to be paid by
Nathan Gitzelter or his assigns on February 20, 1920,
before 8 p. m., when contract for sale of this house No.
245 East 104th Street must be made, and unless this
$400 is so paid and contract made, this deposit of $100.
is forfeited and lost. I agree to take back a purchase
money mortgage on this house for $2500 payable quar-
terly in installments of $150. each up to three years
from date, and balance shall become due and payable.
The interest on this mortgage will be 6% per annum.
One thousand and sixty two 50/100 Dollars to be paid
at the time of taking title.
** It is expressly understood and agreed that I have
this house No. 245 East 104th street under contract at
present, and will by this contract transfer our rights
of the contract between N. Bemato and myself and
Nathan Gruskin provided all of the above conditions
are complied with, and in case I cannot deliver the
deed all moneys paid me by Nathan Gitzelter or his
assigns shall be returned to him.
'* Dated Feb. 19/20. Herman Grossman.
** The above has been read to me and I agreed to
the tenns. ** Nathan Gitzelter."
On February 20, 1920, when the contract for the sale
of the house was to be made the respective parties met,
Digiti
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GiTZELTEB V. GrOSSMAN. 559
Misc.] Appellate Term, First Department, March, 1921.
and the defendant submitted to plaintiff a contract
which recited that the premises were sold subject to
violations to date of contract, to which plaintiff ob-
jected and stated that he did not want to purchase
subject to violations to date of contract, but that seller
should take care of all violations to date of title.
It is apparent that defendant in accepting the
deposit of $100 for the purchase of the house only-
covenanted by the agreement to give a contract of
sale in accordance with the terms he had made with
the owner. The instant agreement is in no wise ambig-
uous. The defendant tendered a contract as agreed
to, and the plaintiff refused to accept, insisting that
the contract should recite *^ Subject to violations to
date of taking title. '* As the defendant did not agree
to so do the plaintiff was in no position to claim the
additional provision. Eespondent relies on the case
of Weinberg v. Oreenherger, 47 Misc. Rep. 117. The
facts in that case bear no resemblance whatever to this
case. In that case the money was paid as a deposit on
account of a lease to be thereafter made, and it was left
quite obscure for what purpose the deposit was given.
In the case at bar the agreement read that the $100
was received as a deposit from Gitzelter by the defend-
ant, to be applied toward the purchase price of prem-
ises No. 245 East One Hundred and Fourth street.
In Ahramowitz v. Gray, 50 Misc. Rep. 639, the
court said: ** In the present case, the money paid to
defendant and now sued for is recited as having been
paid on account of the purchase price for two lots, and
the whole evidence shows that the payment was so
made, and not merely as security for the making of
some future contract. *'
The agreement dated February 19, 1920, recites that
the money was paid as a deposit to be applied toward
the purchase price of the premises.
Digiti
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560 U. S. Cast Iron P. & F. Co. v. Roberts & Co., Inc.
Appellate Term, First Department, March, 1921. [VoM14.
I am, therefore, of the opinion that the judgment
should be reversed and the complaint dismissed, with
costs.
Judgment reversed, with thirty dollars costs, and
complaint dismissed with costs.
Lehman and Mullan, JJ., concur.
Judgment reversed, with thirty dollars costs.
United States Cast Iron Pipe & Foundry Co.,
Respondent, v. Hugh S. Roberts & Co., Inc.,
Appellant.
(Supreme Court, Appellate Term, First Department, February
Term — Filed March, 1921.)
Service — snbatitated — Municipal Oourt of the city of New York
— oorporatioDS — appeal.
The Municipal Court of the city of New York has no power
to make an order for substituted service of the summons on a
corporation defendant.
An appeal lies from such an order and it and the order
denying the motion to vacate the judgment entered on defend-
ant's failure to appear will be reversed and the motion granted.
Appeal from an order of the Municipal Court of the
city of New York, borough of Manhattan, ninth dis-
trict, denying defendant's motion to vacate a judg-
ment entered on December 16, 1920, upon an order
granting a motion for substituted service.
John C vonGlahn, for appellant.
Fraser, Speir & Meyer (John L. Dunn, of counsel),
for respondent.
Per Curiam. On December 1, 1920, the plaintiff
obtained an order for the substituted service of the
Digitized by
Google
U. S. Cast Iron P. & F. Co. v. Egberts & Co., Inc. 561
Mise.] Appellate Term, First Department, March, 1021.
summons in this action on the defendant, upon proof
that the defendant was a domestic corporation having
its principal place of business in the borough of Man-
hattan, city of New York, and that proper and dili-
gent effort has been made to serve the summons upon
the defendant, and that none of the persons men-
tioned in subdivision 3 of section 431, Code of Civil
Procedure, can be found. The defendant appealed
from this order and did not enter any appearance
after the summons was served upon it, in accordance
with the terms of the order. Thereafter the plaintiff
entered judgment against the defendant upon its fail-
ure to appear, and the defendant moved to set aside
this judgment: This motion was denied, and the
defendant also appeals from the order denying this
motion, and the appeals from both orders are now
before us.
The Municipal Court Code does not provide for any
direct appeal from an order permitting a substitute
for personal service of the summons, but it does pro-
vide for such an appeal from an order which the court
had not the power to make, and in the present case
the defendant contends that the Municipal Court has
no power to make an order for substituted service
upon a corporation. If that contention is correct, an
appeal lies from the order of December first.
Section 21 of the Municipal Court Code provides
that: '* The summons may be served upon the defend-
ant within the city of New York in like manner as
though the summons issued out of the supreme court,
except as otherwise provided in this act or in the rules,
provided that it shall not be served by publication."
Section 23 of the Municipal Court Code provides in
part: **An order for the service of a summons upon
a defendant residing within the city of New York may
be made by the court, or a justice thereof in the di»-
36
Digiti
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562 U. S. Cast Iron P. & F. Co. v, Roberts & Co., Inc.
Appellate Term, First Department, March, 1921. [Vol. 114.
trict in which the action is brought, upon satisfactory
proof, by the affidavit of a person not a party to the
action, that proper and diligent effort has been made
to serve the summons upon the defendant, and that
the place of his sojourn cannot be found, or if he is
within the city that he avoids service so that personal
service cannot be made." This is the only section of
the Municipal Court Code in which any power to make
an order for substituted service is conferred upon the
Municipal Court or a justice thereof, and there can
be no question but that at the time when the Municipal
Court Code w^as adopted, the legislature intended that
no power to make orders for substituted service in any
other case should be implied by virtue of any pro-
vision of the Code of Civil Procedure. It is true that
section 23 also contains the provision: ** The con-
tents of the order, the method of service of the sum-
mons, the proof of service thereof, and the method of
filing the order and the papers on which it was
granted, shall be the same as though the summons
were issued out of the supreme court, unless other-
wise provided by the rules," but this provision by its
express terms applies only to the practice and pro-
cedure where an order for substituted service has
been made, and it does not by reasonable implication
provide that the Municipal Court shall also have the
same powers to make such an order as the Supreme
Court possesses. See Mitchell v. Schroeder, 94 Misc.
Rep. 270.
In the present case it is especially clear that the
legislature did not intend to grant expressly to the
Municipal Court power to make an order for substi-
tuted service in certain cases and at the same time to
confer upon the Municipal Court the same power to
make such orders as exists in the Supreme Court,
because the only provision in the Code of Civil Pro-
Digiti
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U. S. Cast Iron P. & F. Co. v. Roberts & Co., Inc. 563
Misc.] Appellate Term, First Department, March, 1921.
cedure which confers such power upon the Supreme
Court or other court of record is section 435. That
section could not apply in full force to the Municipal
Court, because it provides for an order for service of
a summons upon a defendant residing t(;i<Wn the state,
and of course the Municipal Court was never intended
to have the power to make any order of substituted
service upon a defendant residing within the state but
not within the city, and it was necessary, if the legis-
lature intended that the Municipal Court should have
power to make orders for substituted service in regard
to defendants residing in the city, that provision for
this purpose should be made in the Municipal Court
Code for no provision of the Code of Civil Pro-
cedure could be considered as applicable. The legis-
lature did confer such power under section 23 of the
Municipal Court Code, but its terms are not suflScient
to include a domestic corporation, as a defendant
residing within the city of New York within the mean-
ing of that section. That section not only fails
expressly to mention such a corporation, but the pro-
visions as to the matters upon which satisfactory
proof must be submitted can have no application to a
domestic corporation, but evidently refer solely to nat-
ural persons. This construction becomes clear when
we examine the history of this section. It is derived
from section 435 of the Code of Civil Procedure as it
existed until that section was amended by chapter 230
of the Laws of 1913. By that amendment the legis-
lature indicated clearly its intent that the Supreme
Court and other courts of record should have power
to make orders for substituted service of summons
upon a domestic corporation upon proof that none of
the persons mentioned in subdivision 3 of section 431
can be found, and the legislature in making that amend-
ment indicated that in its opinion such power did not
Digiti
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564 U. S. Cast Iron P. & F. Co. v. Roberts & Co., Inc.
Appellate Term, First Department, March, 1921. [Vol.114.
exist under the language of the original section.
When the legislature, however, enacted the Municipal
Court Code in 1915, it saw fit to use practically the
exact language of section 435 before such amendment.
It cannot be presumed that the legislature overlooked
the significance of its own amendment to section 435
of the Code of Civil Procedure, and it would, there-
fore, appear plain that under section 23 'of the Munic-
ipal Court Code the legislature intended to confer
upon the Municipal Court the power to make an order
for substituted service upon a defendant residing
within the city of New York only in such cases as the
Supreme Court had power to make similar orders for
service upon defendants residing within the state
under section 435 of the Code of Civil Procedure as it
existed prior to its amendmerit. and to withhold from
the Municipal Court any additional power granted
by such amendment.
It follows that the order for substituted service and
the order denying the motion to vacate the judgment
should be reversed, with ten dollars costs to appellant,
motion to vacate the judgment granted, with ten dollars
costs and judgment vacated.
Present: Lehman, Mullan and Burr, JJ.
Order reversed, with ten dollars costs to appellant.
Digiti
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Adams v. Dodge. 565
Miflc.] Supreme Court, Mareh, 1921.
Alfred B. Adams and Another, Plaintiffs, v. Marcellus
Hartley Dodge and Another, Defendants.
(Supreme Court, New York Special Term, March, 1921.)
Bill of particulars — who entitled to — pleading — comniiflsions —
agency.
A bill of particulars is unnecessary when the complaint is
sufficiently specific.
Where the gist of a complaint is that on an unspecified date
it was agreed that plaintiff's commission on a sale to the French
government, alleged to have been negotiated by plaintiff on
behalf of defendants, should be a certain fixed proportion of
the purchase price, the plaintiff may properly be required to
give a bill of particulars in regard to immaterial matters which
by pleading he has assumed or admitted are material.
The g^st of the defense, so far as material, was that one of
the defendants was merely acting as agent of the other in
the transaction. Held, that an apparent admission of an alle-
gation of the complaint, that it was agreed between plaintiff
and defendants, by an allegation of the answer that it was
finally agreed with plaintiff, by the defendant for whom the
other defendant was acting, that plaintiff^s commission should
be, etc., was really a denial of said allegation of the complaint,
it being admitted only that an agreement was made with but
one of the defendants.
The answer containing nothing to indicate that the date of
the agreement admitted by the answer was the same as tha(
set up in the complaint, defendants were entitled to a bill of
particulars to the end that they may be apprised of the date
.when plaintiff claims both defendants entered into the ag^ree-
ment, and also of all other appropriate particulars thereof
sought by defendants.
Motion for a bill of particulars.
Homblower, Miller & Garrison (Geo. S. Hom-
blower, of counsel), for plaintiffs.
Shearman & Sterling (Chauncey B. Garver, of
counsel), for defendants.
Digiti
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566 Adams v. Dodge.
Supreme Court, March, 1921. [Vol.114.
BiJUR, J. This is a motion for a bill of particulars.
Plaintiflf Adams sues for his commissions on a sale
to the French government alleged to have been nego-
tiated by him on behalf of defendants. The complaint
alleges that the plaintiff Adams '* arrived in New
York on or about March 22, 1915, and immediately
went to the defendants' offices, where he conferred
with them " concerning the proposed order *** * *
and after a further conference a compromise was
effected, and it was agreed between the plaintiff
Adams and the defendant that he should reopen nego-
tiations * * * and that his commission thereon
should be reduced,'' etc.
The answer in paragraph 5 '* denies each and every
allegation contained in Article VI thereof, except that
the plaintiff Adams arrived in New York on or about
March 22, 1915, and went to the offices of the defendant
Dodge, where he conferred with the defendants rela-
tive to the situation and to renewing negotiations
• * *. Dodge requested plaintiff Adams to agree to
reduce his commission * * * and * * * it was
finally agreed with him by the defendant Dodge that
his commission should be * * *."
The gist of the defense (so far as material here) is
that defendant Pryor was merely acting as the agent
of defendant Dodge. Defendants now ask for
particulars :
(1) As to the exact date when Adams conferred
with defendants and whether that conference was
with defendant Dodge or defendant Pryor or both, etc.
(2) The exact date upon which occurred the fur-
ther conference when the ** compromise " agreement
was effected.
(3) Whether the ** compromise " agreement was
made orally or in writing, etc., and also the precise
terms under which the plaintiff Adams' commissions
became payable in installments.
Digiti
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Adams v. Dodge. 567
Misc.] Supreme Court, March, 1921.
(4) Whether it was made with defendant Dodge or
defendant Pryor or both, etc.
The difficulty which has arisen in this case is due
to the disregard by the draftsman of the complaint
of an important rule of pleading, i. e., that only
material facts be set out. Section 481 of the Code of
Civil Procedure provides that: ^* The complaint must
contain (2) A plain and concise statement of the facts
constituting each cause of action without unnecessary
repetition.*' The method of pleading prescribed by
the Code — as distinguished from the former prac-
tice — was designated to require the allegation of
facts rather than the merely formal and unillumina-
tive *^ common counts.'' Bu^h v. Prosser, 11 N. Y. 347,
352 ; Conaughty v. Nichols, 42 id. 83.
On the other hand, since section 500 of the Code of
Civil Procedure provides that: ** The answer of the
defendant must contain: A general or specific denial
of each material allegation of the complaint contro-
verted by the defendant," it was not intended that the
complaint should set out immaterial matter. Indeed,
such matter need not be denied, and failure to deny it
does not imply its admission. Linton v. Unexcelled
Fireworks Co., 124 N. Y. 533; Fry v. Bennett, 5 Sand.
54; Connoss v. Meir, 2 E. D. Smith, 314; Sands v. St.
John, 36 Barb. 24:; Brown v. Cody, 23 App. Div. 210.
Judged by these rules, it would seem to have been
wholly unnecessary for plaintiff to have alleged that
he arrived in New York on any particular date and
immediately or otherwise went to defendants^ offices
and conferred with them. The gist of his complaint
is, as alleged in the same paragraph, that on some
date, not specified, ** it was agreed • • • that
plaintiff's commission should be" a certain fixed pro-
portion of the price. Plaintiff 's cause of action rests
upon an alleged breach of the agreement then effected
Digiti
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568 Adams v. Dodgb.
Supreme Court, March, 1&21. [Vol.114.
to pay him a fixed commission. Nothing further need
have been alleged, and there was no more reason to
refer to plaintiff's arrival in New York on March
twenty-second and the conference then held than there
was to relate other circmnstances of his previous
acquaintance with the defendants. Defendants might
quite properly have disregarded these unnecessary
statements, but in response to plaintiff's allegation they
have admitted them. Plaintiff, however, may prop-
erly be required to give a bill of particulars in regard
thereto, because by his own pleading he had assumed
or admitted that they are material. Ctmard v. Franck-
lyn, 111 N. Y. 511. Since, however, in any event, the
precise date of the first conference is specified by the
complaint, and it is therein stated to have occurred with
the defendants, which defendants admit, it is unneces-
sary for plaintiff to furnish a bill of particulars in
that respect.
The function of a bill of particulars has been fre-
quently described as of a two-fold nature, namely, to
** amplify the pleadings " {Dwight v. Germania Life
Ins. Co., 84 N. Y. 493, 506; Starkweather v. Kittle, 17
Wend. 20), and to ** limit generalities " {Gee v. Chase
Mfg. Co., 12 Hun, 630). It is therefore plainly unnec-
essary where the complaint is respectively sufficiently
broad or specific. In such a case the pleading needs no
amplification, and there is no generality to be limited.
Fullerton v. Gaylord, 30 N. Y. Super. Ct. 551, 557 ;
Ehrgott v. City of New York, 96 N. Y. 264, 277. The
particular object of a bill of particulars is well defined
in Slingerland v. Corwin, 105 App. Div. 310, 311. ** Ite
purpose is only to amplify the pleading and indicate
with more particularity than is ordinarily required in
a formal plea the nature of the claim made in order
that surprise upon the trial may he avoided and the
issues more intelligently met." Taylor v. Security
Digiti
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Adams v. Dodge. 569
Misc.] Supreme Court, March, 1921.
Mutual Life Ins. Co., 73 App. Div. 318. The avoidance
of surprise at the trial is also adverted to in the Dwight
Case (supra) at page 503: '' It (i. e., the ordering of
a bill of particulars) is a power incident to the general
authority of the court in the administration of justice.
It is the same power, in kind, that courts have to grant
a new trial on the ground of surprise. The latter is
remedial and curative. The former (namely, bill of
particulars) is preventative. But both have the same
purpose, to reach exact justice between the parties,
by learning just what is the truth, and to learn what is
the truth by giving to each party all reasonable oppor-
tunity to produce his own proofs, and to meet and sift
those of his adversary."
Judged by these standards, it seems to me to be
clear that the particulars asked for by defendants in
respect of the second sentence of paragraph 6 of the
complaint should be furnished. That sentence is the
only one which contains the allegation of the actual
agreement upon which plaintiffs sue. The complaint
alleges that ** it was agreed between plaintiff Adams
and the defendants.'^ The answer says: **It was
finally agreed with him (plaintiff Adams) by the
defendant Dodge that his commission should be,*' etc.
It will be observed that in substance the apparent
admission of the answer is in reality a denial of the
allegation of the complaint that an agreement was
entered into between plaintiff and the defendants, it
being admitted only that an agreement was made
between plaintiff and defendant Dodge. There is noth-
ing in the answer to indicate that the date of the
** admitted " agreement between plaintiff and defend-
ant Dodge is the same as that referred to in the plain-
tiff's allegation of an agreement between plaintiff
Adams and both defendants. Since this is the very
essence of the cause of action, defendants are entitled
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570 Adams v. Dodge.
Supreme Court, March, 1921. [Vol. 114.
to the particulars of the plaintiffs' '' claim " in that
regard. Dwight v. Germania Life Ins. Co., supra,
503; Code Civ. Pro. § 531, last sentence. Plaintiffs
cannot snccessfuUy urge that the defendants have
sufficient knowledge to enable them to guess at the
particular occurrence indicated. Defendants are en-
titled to know, and not to be relegated to conjecture,
concerning what is actually claimed by the plaintiffs
in that regard. Dtvyer v. Slattery, 118 App. Div. 345;
Waller v. Degnon Cont Co., 120 id. 389. Defendants
should therefore be apprised of the date when plain-
tiffs claim that both defendants entered into the agree-
ment and also of all the appropriate particulars of
such agreement as requested in the second and third
items of the demand for a bill of particulars.
The terms upon which plaintiffs' commissions are
claimed to have become payable are alleged in para-
graph 7 of the complaint by reference to a contract
between the defendants and the French government;
this, in turn, is apparently sufficiently specified in
paragraph 7 of the complaint. So much, therefore, of
the third item in the request may be omitted. The
fourth item, covering other details of the alleged ulti-
mate agreement, should be furnished.
Although at first blush the attitude of the defend-
ants may appear captious and hypercritical, an analy-
sis of their contentions has convinced me of their
soundness. Close thinking and clear expression are
conducive to accuracy and expedition on the trial. In
most cases it becomes necessary at some stage of the
litigation to define the controversy clearly. It is
better, as indicated in the cases hereinabove cited, to
prevent surprise in advance by a clear definition of
the facts controverted rather than to await the trial
and there incur the risk of confusion and delay. We
have dispensed with mere formalism ; it still remains
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fcjKOLNY V. HiLLMAN. 571
Misc.] Supreme Court, March, 1921.
true, however, as said by EsltI^ J. y in Southtvick v. First
Nat. Bmk of Memphis, 84 N. Y. 420, 429, that : ' ' Plead-
ings and a distinct issue are essential in every system
of jurisprudence, and there can be no orderly adminis-
tration of justice without them."
My conclusion, therefore, is that the first item is
unnecessary, but that the second, the first half of the
third, and the entire fourth items are matters upon
which the defendant is entitled to the bill sought on
this motion.
Ordered accordingly.
Joseph Skolny and Leo Skolny, Copartners Doing
Business under the Firm Name and Style of Jos.
Skolny & Co., Plaintiffs, v. Sidney Hillman, Indi-
vidually and as General President of the Amalga-
mated Clothing Workers of America, an Unincor-
porated Association, et al.. Defendants.
(Supreme Court, New York Special Term, March, 1921.)
Membership associations — action against — Oode Oiv. Pro. §§
1919, 1923 — sufficiency of complaint — injunction pendente
lite granted — labor dispute.
By section 1919 of the Code of Civil Procedure a simple
method is provided by permitting an action to be maintained
against either the president or treasurer of an unincorporated
membership association, to bring the entire membership before
the court, and if that simple mode is not preferred, section
1923 of the Code of Civil Procedure preserves the common
law right of suing all the members. (P. 576.)
While the practice of suing one member, both individually
and as president, and another member individually and as
assistant general secretary, cannot be sanctioned, the complaint
will not be condemned if in fact a cause of action was alleged
against the president. (Id.)
Digiti
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572 Skolny v. Hillman.
Supreme Court, March, 1921. [Vol.114.
Where the complaint, in an action brought against the presi-
dent and assistant general secretary of the "Amalgamated
Clothing Workers of America," an unincorporated membership
association having an approximate membership of 175,000
workers in the clothing tirades, alleges that the defendants
combined to do the injurious acts arising out of labor troubles
of which plaintiff, a clothing manufacturer, complains, such
allegations mean and charge all the members and they are all
liable. (Pp. 677, 578.)
The complaint and affidavits on motion for an injunction
pendente lite considered and defendant's motion for judgment
on the pleadings denied and the injunction granted*
People V. Melvin, 1 Yates Sel. Cas. 81, followed. (P. 580.)
Action for an injunction.
Gordon, Tally & Gordon (Harrj'^ A. Gordon, of coun-
sel), for plaintiffs.
Lowenthal & Szold (Samnel Seabury, of counsel),
for defendants.
Erlanger, J. Plaintiff brought this action against
Sidney Hillman, individually and as general president
of the Amalgamated Clothing Workers of America, an
unincorporated association, and against Jacob S.
Potofsky, individually and as assistant general secre-
tary of the said association. Many other parties are
joined as defendants in the summons and caption of
the complaint, but the two persons mentioned alone
were served and the action is being prosecuted solely
against them up to this time. A brief synopsis of the
material facts alleged in the complaint follows : Plain-
tiffs are manufacturers of men's and boys* clothing;
their principal place of business is in the borough of
Manhattan ; they operate factories in both of the bor-
oughs of Manhattan and Brooklyn; their annual out-
put is approximately $3,000,000; that the Amalga-
mated Clothing Workers of America is an unincorpo-
Digiti
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Skolny v. Hillman. 573
Misc.] Supreme Court, March, 1921.
rated membership association with an approximate
membership of 175,000 and is an association of work-
ers in the clothing trades in, among other cities, the
city of New York and has its principal office in the
borongh of Manhattan ; that said association of work-
ers according to its constitution is governed, managed
and controlled by a general executive board consisting
of eleven members, of whom three are the general
president, general secretary, and financial secretary,
and eight are the general executive board members;
that by its constitution it was at all the times herein-
after mentioned, and still is provided that the general
executive board shall have the right, power and
authority to call and authorize strikes and to direct
and declare boycotts; that at the times hereafter
mentioned the individual members of the Amalga-
mated Clothing Workers of America were and still
are members of certain local unions of said defendant,
authorized, created and constituted by said defendant
and composed of workers in certain branches of the
clothing industry in the United States and particu-
larly in the city of New York; that in the city of New
York and for the purpose of a more complete control
and management of the business of said Amalga-
mated Clothing Workers it has created and authorized
the formation of a joint board ; that the various local
unions in the city of New York elect and select repre-
sentatives upon said board in said city and that said
board has, subject to the review and control by the
general executive board of the Amalgamated Clothing
Workers, jurisdiction of all matters and things affect-
ing the defendant Amalgamated Clothing Workers
and of the members thereof employed and working in
the city of New York, etc. On January 27, 1921, plain-
tiff entered into contracts with certain persons who
agreed to work for them in certain capacities from
Digiti
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574 Skolny v. Hillman.
Supreme Court, March, 1921. [Vol.114.
week to week and such emplojTnent was upon the
express understanding that such employees had ceased
to be affiliated with the defendant Amalgamated
Clothing Workers of America (if they were so affili-
ated) or with any other union, and that they would not
join the said association or any other union while in
plaintiff's employ nor make any effort to bring about
the unionizing of plaintiff's employees. That under
the terms of this agreement which was in writing, the
various persons signatory to the same entered upon
their employment, of which fact the association had
due notice. That in violation of the contract rights of
plaintiff and contrary to the terms of said contracts of
employment, and without any complaint, grievance or
dispute among said employees and with the intent and
purpose solely of preventing the plaintiffs from doing
any business and of ruining the plaintiffs' said busi-
ness and bringing about disorder therein and chaos
into the community, the members of the Amalgamated
Clothing Workers of America prior to the commence-
ment of this action unlawfully and maliciously agreed
together, confederated and combined and formed
themselves into a conspiracy, the purpose of which
they are proceeding to carry out, to cause plaintiffs'
factory to be shut down, their plant to remain idle,
their contracts to be broken and unfulfilled until such
time as plaintiffs sliall submit to the demand of said
Amalgamated Workers to unionize their factory and
by employing Avorkers who shall be members of and
subject to the orders of said association and in fur-
therance of said conspiracy and unlawful combina-
tion are wrongfully and unlawfully instigating plain-
tiffs' employees to cease working for plaintiffs and
to join said association in the accomplishment of the
aforesaid purposes. That the members of said asso-
ciation have caused, sanctioned and directed and are
Digiti
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Skolny v. Hillman. 575
Misc.] Supreme Court, March, 1921.
conducting a strike against plaintiffs and their fac-
tory and the members of said association have been
and still are wrongfully and unlawfully instigating
persons to become engaged in the practice of picket-
ing plaintiff's factory and to congregate about the
premises coercing, threatening, assaulting, intimidat-
ing, halting and turning aside against their will
those who would go to and from plaintiffs' place of
business and those who are working under the con-
tracts referred to and those who would seek work
with plaintiffs and have been and are enticing
employees under contract with plaintiffs to desert
their employment and to breach their contracts and
join said association and hampering and hindering
the free dispatch of plaintiffs' business. That plain-
tiffs have invested a large amount of money in their
business, which is being jeopardized and that unless
defendants are restrained the defendants will con-
tinue in the aforesaid acts to plaintiffs' irreparable
injury and damage. That plaintiffs have no adequate
remedy at law. An injunction is prayed for that the
acts of the defendants be decreed to be a common law
conspiracy and in unreasonable restraint of trade and
a conspiracy against the rights of non-union workers.
That the acts mentioned in the prayer of the com-
plaint be restrained, etc. The two defendants served
by their answers specifically deny the acts charged
against them and the Amalgamated Clothing Work-
ers. They also move for judgment on the pleadings.
The plainiffs move for an injunction pendente lite.
These will be considered in their order. Two objec-
tions are urged which it is contended are fatal to the
plaintiffs' cause. The first is directed to the violation
of the section of the Code which permits actions to be
brought against unincorporated associations, and
under the second, it is claimed that the complaint is
Digiti
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576 Skolny v. Hillman.
Supreme Court, March, 1921. [Vol. 114.
insufficient because it fails to allege facts showing lia-
bility of all the membership, consisting of 175,000, of
the Amalgamated Clothing Workers. It is arg^ued
under the first that an unincorporated association is
not a legal entity and cannot be sued apart from its
membership; that all rights against it must be enforced
against all its members, and similarly all rights in its
favor must be sought by all. 5 C. J. 1365, § 102. To
obviate the difficulties in that regard, section 1919 of
the Code was enacted, and by that section a simple
method is provided by permitting an action to be
maintained against either the president or treasurer
to bring the entire membership before the court.
Both cannot be sued, the disjunctive or particularly
excludes that idea — a choice is given to select one
of the two or if that simple mode is not preferred,
section 1923 of the Code preserves the common-law
right of suing all. The plaintiffs did not proceed in
strict conformity to section 1919 of the Code. They
sued Hillman individually as well as president —
and Potofsky individually and as assistant general
secretary, and then as shown other officers and agents
of the association were attempted to be joined. This
procedure is not sanctioned. Schmidt v. Gkmther, 5
Daly, 452-453. But I do not think because of the prac-
tice followed that the complaint should be condemned
if in fact a cause of action is alleged against the presi-
dent. The same question arose in Roxirke v. Elk Drug
Co., 75 App. Div. 145, and it was there held that such
procedure was not fatal. At the appropriate time
application can be made to the Special Term to strike
from the summons and complaint the unnecessary
parties and ample authority is to be found for such
action. Boyd v. United States Mortgage <£
Trust Co., 187 N. Y. 262; Johnson v. Phoenix
Bridge Co., 197 id. 316; Helling v. Boss, 121
Digiti
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Skolny v. Hillman. 577
Misc.] Supreme Court, March, 1921.
N. Y. Supp. 1013. We come now to the sec-
ond ground which attacks the legal sufficiency
of the complaint. Many cases are cited in sup-
port of the point thus urged. It is argued that the
test of sufficiency to be applied is, does the complaint
allege that all of the 175,000 members are liable either
jointly or severally for the acts charged or jointly
liable because of the acts of agents duly constituted
and appointed! Counsel for defendant asserts it
does not and it is also maintained that not only must
liability of all be alleged but proof thereof is a sine
qm nan for success upon the trial. In other words,
unless it is alleged and can be established upon the
trial that this large number of members are each indi-
vidually liable because of what each did, authorized
or ratified, no cause of action exists. In my opinion
the 15th paragraph of the complaint covers the point,
and Hitchman Coal d Coke Co. v. Mitchell (245 U. S.
229) decided by the Supreme Court of the United
States is decisive on that detail. The court, through
Mr. Justice Pitney, there said: ^* When any number
of persons associate themselves together in the prose-
cution of a common plan or enterprise lawful or
unlawful, from the very act of association there arises
a kind of partnership, ea^h member being constituted
the agent of all, so that the act or declaration of one
in furtherance of the common object is the act of all
and is admissible as primary and original evidence
against all.'* (Italics mine.) This pronouncement of
the court when read in the light of the charges made
in the complaint justifies the form in which the wrong
is alleged and renders the complaint immune from
attack for the grounds insisted upon. Pleadings are
to be liberally construed. The tendency of the courts
is to get away from the technical rules which have fet-
tered justice. The allegations of the wrongs are
37
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578 Skolny v. Hillman.
Suprema Court, March, 1921. [Vol.114.
alleged in general terms. When it is charged that
the defendants combined to do the acts of injury com-
plained of, it means all and charges all; and all are
liable within the anthorities. In the last analysis do
the papers show grounds for the injunction? At one
time denial of the equities of the bill defeated the
application for such relief. That time is gone. Acts
which amount to a crime are not usually admitted-
Courts look into the merits of the motion. It is now
the rule that only a prima facie case need be made,
and if the court can spell from the papers that that
has been shown, it has been held to be enough.
Sultan V. Star Co., Inc., 106 Misc. Rep. 43 ; Lawrence
V. Lawrence, 172 N. T. Supp. 146. The plaintiffs claim
that they have established an open shop ; that employ-
ment in their factories depends upon an agreement in
writing from week to week with their employees ; that
they have ceased to be affiliated with any union ; that
they will not join any union while so employed, and
that they will abstain from all efforts to bring about
the unionizing of plaintiffs' employees. Such are the
conditions of the employment and those conditions the
signatories to the agreement have obligated them-
selves voluntarily to abide by. This form of agree-
ment has been upheld in Hitchma/n Coal <& Coke Co.
v. Mitchell, supra. The aflSdavits presented by plain-
tiffs support the charges alleged in the complaint. The
defendants deny the charges, not all, but most of them.
Some denials, those referring to the charge of assault,
are made by affiants who were not present and could
have no knowledge on the subject. But it is admitted
by one of the pickets that ** whenever they think that
some one is a prospective employee of the firm they
go to him quietly and merely inform such person that
there is a lock out.'* It is quite impossible to quote
from all the affidavits submitted pro and con. Plain-
Digitized by
Google
Skolny v. Hillman, 579
Ifisc.] Supreme Court, March, 1921.
tiffs claim that their troubles resulted from a strike of
their employees. The defendants assert there was a
lock ont against them and what they are doing is
entirely within their rights. They attack the form of
plaintiffs' contract and insist they are invalid
because no definite time is fixed and the employee can
be discharged at any moment. That they are invalid
for lack of consideration ; that there is no evidence of
an intent to procure a breach of them; that their
picketing is lawful; that they have a right to com-
bine to strike and to persuade others to join them to
improve their economic condition; that they had no
notice of plaintiffs' contract, etc. It is clearly estab-
lished that picketing is lawful — that a man may work
or not as he shall choose; that he may strike with
others and peaceably seek others to join. But it is
equally well settled that a worker may work where-
soever it pleases him ; that he may labor and provide
for himself and family without being subjected to the
danger of assault or threat of bodily harm; that he
cannot be compelled to join a union if he is not dis-
posed so to do; that employees may not be enticed
from their employment by threats or otherwise; that
the right to live and let live is a God given right to be
observed by all, and that all rights, whether of great
or lesser magnitude, will be protected by the courts
which the people have created for the common pro-
tection of all. Intimidation does not necessarily
carry with it an act of violence. The application of
the term ** scab,'' the use of insulting epithets, the
fear of going back and forth from the workshop, the
visitations at the homes of workers and threatening
them if they did not quit working for plaintiffs, that
the union would see to it if they won the strike that
they would never again get employment in the cloth-
ing trade and the like has been found effective. It is
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580 SkOLNY v. HlMiMAN,
Supreme Court, March, 1&21. [Vol.114.
a silent weapon but carries with it a menacing atti-
tude. Michaels v. Hillman, 112 Misc. Rep. 395. Par-
ties placed in the position of plaintiffs and th^ir work-
men are not obliged to resort to criminal proceedings
fo^HProtection against unlawful combinations or con-
spiracies. Under modem decisions courts of equity-
are more apt to restore ord^r and confidence than
doubtful results in a criminal court. Heithamper v.
Hoffmann, 99 Misc. Rep. 543-^6. The differences that
exist between capital and labor are not of recent origin.
Dug from among the caiises celehres of an almost for-
gotten age the Journeymen Cordwainers case is a liv-
ing example. The case is entitled People of the State
of New York v. Melvi/n, 1 Yates Sel. Cas. 81. In that
case a number of workmen were indicted in 1809 for
conspiracy. The first count of the indictment states
that the defendants being workmen and journeymen
in the art, mystery and manual occupation of cord-
wainers, on the 18th of October, 1809, etc., ** unlaw-
fully, perniciously and deceitfully designing and
intending to form and unite themselves into an unlaw-
ful club and combination, and to make and ordain
unlawful by-laws, rules and orders among themselves,
and thereby to govern themselves and other work-
men in the said art, and unlawfully and unjustly
to extort great sums of money by means thereof,
on the day and year aforesaid, with force and
arms, at etc., together with divers other workmen
and journeymen in the same art, etc., * • • did
unlawfully assemble and meet together, and being so,
etc., did then and there, unjustly and corruptly con-
spire, combine, and confederate and agree together,
that none of them, the said conspirators, after the
said 18th October, would work for any master or per-
son whatsoever, in the said art, mystery and occupa-
tion, who should employ any workmen or journey-
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Skolny v. Hillman. 581
Misc.] Supreme Court, March, 1&21.
men, or other person in the said art, not being a mem-
ber of said club or combination, after notice given,
etc., to discharge such workmen, etc., from the employ
of such master, '* etc. Article VIII of their constitu-
tion reads as follows: *' No member of this Society
shall work for an employer, that has any journeymen
cordwainer, or his apprentice in his employment that
do not belong to this Society, unless the journeymen
come and join the same ; and should any member work
on the seat with any person or persons that has not
joined this Society, and do not report the same to the
President, the first meeting night after it comes to
his knowledge, shall pay a fine of $1.00.** Article IX,
** If any employer should reduce his journeymen's
wages at any time, or should the said journeymen
find himself otherwise aggrieved, by reporting the
same to the Committee at their next meeting, they
shall lay the case before the Society who shall deter-
mine on what measures to take to redress the same.'^
Article XVII fixes the wage of the journeymen in the
city of New York. The case was sent to the jury who
found the defendants guilty and thereupon they were
fined one dollar each with costs. Many of the acts in
the cited case bear a strong resemblance to those com-
plained of in the instant case, and were treated and
punished as a common law conspiracy. Though infre-
quently cited, so far as I have been able to discover,
it is still authority and has been given approval in
Davis V. Zimmemum, 91 Hun, 492, and in New York
Central Iron Works Co. v. Brennan, 105 N. Y. Supp.
865-869. My conclusion is that the motion for judg-
ment on the pleadings must be denied, with ten dol-
lars costs. That under all the authorities upon the
facts, the motion for an injunction pendente lite
should be granted.
Ordered accordingly.
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582 Matteb of Beth Israel.
Supreme Court, March, 1921. [Vol. 114.
Matter of the Petition of Beth Israel of Browns-
VHiLB, a Religions Corporation, for Leave to Mort-
gage Real Estate.
(Supreme Court, Elings Speeial Term, March, 1921.)
BeligionB corporations — when application for leave to mortgage
real property must be on consent of majority of members.
The trustees of a religious corporation haying a congrega-
tional form of government have no power to initiate proceed-
ings to sell or mortgage the real property of the corporation
without the consent of the members.
Under the present Religious Corporations Law such consent
of the members given by a majority vote at a meeting, or in
some manner in accordance with legally adopted by-laws, is
requisite to authorize the trustees to make such an application.
The application herein making no reference to any such by-
law now in force will be denied with leave to renew on further
papers.
Application by a religions corporation to mortgage
its real property.
William E. Smith, for petitioner.
No appearance in opposition.
Benedict, J. This is an application to anthorize
the petitioner, a religions corporation incorporated
under article X of the Religions Corporations Law,
to mortgage its real property. It does not appear
that the members of the congregation have authorized
the mortgage. The trustees of a religious corpora-
tion having a congregational form of government
have not, in my opinion, power to initiate proceedings
to sell or mortgage the real property of the corpora-
tion without the consent of the members. The rule
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Matter of Beth Iseabl. 583
Misc.] Supreme Court, March, 1921.
seems formerly to have been otherwise, Madison
Ave. Baptist Church v. Baptist Church in Oliver St.,
46 N. Y. 131. But the statute in force when the con-
veyance under consideration in the case cited was
made differed materially from the statute now appli-
cable. The powers of trustees of religious corpora-
tions incorporated under chapter 60 of the Revised
Laws of 1813, were defined in section 4 of said act as
follows :
'* That the trustees of every church, congregation
or society, herein above mentioned, and their suc-
cessors, shall respectively have and use a common
seal, and may renew and alter the same at their
pleasure, and are hereby authorized and empowered
to take into their possession and custody all the tem-
poralities belonging to such church, congregation or
society, whether the same consist of real or personal
estate, and whether the same shall have been given,
granted, or devised, directly to such church, congre-
gation or society, or to any other person for their
use ; and also by their corporate name or title, to sue
and be sued in all courts of law or eqtiity, and to
recover, hold and enjoy all the debts, demands, rights
and privileges, and all churches, meeting-houses, par-
sonages and burying places, with the appurtenances,
and all estates belonging to such church, congrega-
tion or society, in whatsoever manner the same may
have been acquired, or in whose name soever the
same may be held, as fully and amply as if the right
or title thereto had originally been vested in the said
trustees; and also to purchase and hold other real
and personal estate, and to demise, lease and improve
the same, for the use of such church, congregation or
society, or other pious uses, so as the whole real and
personal estate of any such church, congregation or
society • • • shall not exceed the annual value
Digiti
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584 Matter of Beth Israel.
Supreme Court, March, 1921. [Vol. 114.
or income of three thousand dollars; • • * and
also to repair and alter their churches or meeting
houses, and to erect others if necessary, and to erect
dwelling houses for the use of their ministers, and
school houses and other buildings for the use of such
church, congregation or society; and such trustees
shall also have power to make rules and orders for
managing the temporal affairs of such church, con-
gregation or society, and to dispose of all monies be-
longing thereto, and to regulate and order * ♦ •
all other matters relating to the temporal concerns
and revenues of such church, congregation or
society.*'
Section 3 of the same act, providing for the incor-
poration of churches other than Protestant Epis-
copal and Keformed Protestant Dutch churches
authorized the male members to elect trustees ** to
take the charge of the estate and property belonging
thereto, and to transact all affairs relative to the tem-
poralities thereof.*'
The power to sell the real property of such a cor-
poration is not included in the above recital of
powers, because that was provided for in section 11
of the same act, authorizing the chancellor of the
state, on the application of any religious corporation,
if he shall deem it proper, to make an order for the
sale of any of its real estate.
Under this statute it was held, in the case above
cited, that the trustees, who were constituted *Hhe
managing officers and agents of the corporation, in
respect to all its temporalities,'* had power to initiate
the proceedings before the chancellor for leave to sell
its real property, without the consent of the
members.
The present statute is materially different from
the act of 1813. The powers of trustees of such relig-
Digiti
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Matter of Beth Israel. 585
Misc.] Supreme Court, March, 1921.
ions corporations as the petitioner are prescribed by
section 5 of the Eeligious Corporations Law as
follows :
' ' The trustees of every religions corporation
shall have the custody and control of all the tempo-
ralities and property, real and personal, belonging to
the corporation and of the revenues therefrom, and
shall administer the same in accordance with the dis-
cipline, rules and usages of the corporation and of the
ecclesiastical governing body, if any, to which the
corporation is subject, and with the provisions of law
relating thereto, for the support and maintenance of
the corporation, or, providing the members of the
corporation at a meeting thereof shall so authorize,
of some religious, charitable, benevolent or educa-
tional object conducted by said corporation or in con-
nection with it, or with the denomination, if any, with
which it is connected; and they shall not use such
property or revenues for any other purpose or divert
the same from such uses. By-laws may be adopted or
amended, by a two-thirds vote of the qualified voters
present and voting at the meeting for incorporation
or at any subsequent meeting, after written notice,
embodying such by-laws or amendment, has been
openly given at a previous meeting, and also in the
notices of the meeting at which such proposed by-laws
or amendment is to be acted upon. By-laws thus
adopted or amended shall control the action of the
trustees * * *.''
The difference between these provisions and those
above quoted from the act of 1813 is obvious, and
under the present law the consent of the members,
given by a majority vote at a meeting, or in some
manner in accordance with legally adopted by-laws,
is, in my opinion, requisite to authorize the trustees
of a religious corporation having a congregational
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586 Falk v. Thurlow.
Supreme Court, March, 1921. [Vol. 114.
form of government to apply for leave to sell or
mortgage its real property. It may be that the appli-
cant corporation in the present case has adopted a
by-law which dispenses with any requirement that
the action of the trustees in respect of the sale or
mortgage of the church property be approved or
authorized by the members. If there be any such by-
law now in force, it is not referred to in the petition.
Application denied with leave to renew on further
papers.
Application denied.
GusTAv Falk, Plaintiff, v. Lewis K. Thtjrlow,
Defendant.
(Supreme Court, Kings Trial Term, March, 1921.)
Ships and shipping — injury to seaman upon the high seas — obli-
gation of ship for care and maintenance of disabled seaman —
jurisdiction.
The obligation of a ship to care for a seaman if he becomes
Ul or is injured while in service continues for a reasonable
period after the termination of his employment.
The seaman's maritime right to maintenance and care for a
reasonable time after his employment ceased may be enforced
in the state courts.
Where the seaman met with an accident incidental to his
service while the ship was on the high seas and only a short
distance from some of the large ports of South America, a
cause of action alleged in the complaint for defendant's failure
to furnish plaintiff with reasonably good medical attention
turned on the question whether plaintiff requested to be landed
at one of those ports, was decided in his favor though he
was brought to New York. A motion for a new trial will be
granted unless plaintiff consents to the reduction of a verdict
of $1,200 to $500, in which event the motion will be denied.
Motion for a new trial.
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Falk v. Thurlow. 587
Mise.] Supreme Court, Mareh, 1921.
Silas B. Axtell (Arthur Lavenburg, of counsel), for
plaintift.
Bertrand L. Pettigrew (Walter L. Glenney, of
counsel), for defendant.
Cropsey, J. Plaintiff was a seaman and he shipped
from New York for a trip to South America and
return. On the return and when on the high seas
plaintiff met with an accident which was in no way
due to the fault of the ship but was an incident of his
service. Hence his first cause of action, which was
to recover for the injuries, was dismissed. His sec-
ond cause of action charged that the defendant failed
to furnish him with reasonably good medical atten-
tion. The accident happened when the steamer was
only a short distance from some of the large ports of
South America, and upon the trial the question on
this branch of the case turned upon whether or not
the plaintiff requested to be landed at one of those
ports. He was not landed there but instead was
brought to New York. The jury decided this issue in
favor of the plaintiff and there is no ground for inter-
fering with this decision except as to the amount
awarded. Under the direction of the court the jury
stated separately that the sum of $1,200 was allowed
plaintiff upon this cause of action. All that plaintiff
could recover under this claim was for the additional
pain or suffering and injury that resulted from
defendant's failure to furnish reasonable medical
attendance. I think the proof does not justify the
award made. I think the jury were justified in finding
that some additional pain and suffering was endured
and that the injury was made worse by reason of the
lack of proper attention but under no view of the case
do I see how a greater sum than $500 could have been
allowed.
Digiti
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588 Falk v. Thxjblow.
Supreme Court, March, 1921. [Vol. 114.
The third cause of action was for *' maintenance
and cnre.'* That is, it was to recover the reasonable
cost of plaintiff's keep after his arrival at New York
and after the termination of his contract and during
the period that he was nnable to work because of the
injuries received. For about six months after his
arrival at New York plaintiff was in the hospital and
under no expense. Thereafter he claimed that for a
further period of about six months he was unable to
work.. The jury awarded $300 for plaintiff's main-
tenance during that period. The question is whether
the plaintiff is entitled to any recovery under this
cause of action.
There have been decisions both ways on this ques-
tion. While they all seem to recognize that the obli-
gation of a ship is to care for a seaman if he becomes
sick or is injured while in service some of the cases
have limited that obligation to the period of the sea-
man's employment. But the rule more generally fol-
lowed, and the one which seems to be supported by
reason, holds that the ship's obligation does not end
with the termination of the employment but continues
for a reasonable period thereafter. The cases on this
subject are cited and discussed in The Bouker No. 2,
241 Fed. Repr. 831. See, also, Storgard v. Frcmce <t
Canada 8. S. Corporation, 263 Fed. Repr. 545. There
is a statement in Ives v. South Buffalo Railway Co.,
201 N. Y. 271, 311, which it is claimed is at variance
with the above cited cases. But that statement was
no part of the decision and the decision of this ques-
tion was not involved.
The further contention is made that even though
the plaintiff is entitled to his ** maintenance and
cure " for a reasonable time after his employment
ceases that is only a maritime right and cannot be
enforced in a state court. And in support of t^bis
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Falk v. Thtjrlow. 589
Misc.] Supreme Court, March, 1921.
contention defendant cites Johnson v. Standard
Transportation Co., 188 App. Div. 934. No opinion
in that case is reported but in a memorandum deci-
sion the court says: '* But the maritime law cannot
be administered in the State Supreme Court. It is a
matter peculiarly within the jurisdiction of the admir-
alty courts.'' This statement was wholly unnecessary
to the decision which did not turn upon any such ques-
tion. Furthermore it is in direct conflict with deci-
sions of the Court of Appeals of this state and so
must be disregarded. It is the law of this state that
maritime rights may be enforced in the state courts.
Scarff V. Metcalf, 107 N. T. 211; Gabrielson v. Way-
dell, 135 id. 1. And the maritime right in question
has also been enforced in the common law courts of
the. United States. John A. Roehling^s Sons Co. of
N. Y. V. Erickson, 261 Fed. Repr. 986; Storgard v.
France & Ca/nada S. S. Corporation, 263 id. 545.
These cases still further show that the statement in
the memorandum of the Appellate Division in the
Johnson case, that the maritime law is a matter
** peculiarly within the jurisdiction of the admiralty
courts " is not correct.
And the same Appellate Division a few months
after deciding the Johnson case recognized that the
admiralty law could be enforced in the state court.
Leone v. Booth Steamship Co., Ltd,, 189 App. Div.
185.
Motion for new trial granted unless plaintiff stipu-
lates within ten days to reduce the amount awarded
upon his second cause of action to $500, in which
event the motion will be denied.
Ordered accordingly.
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590 Kavanatjgh v. Cohoes Power & Light Corp.
Supreme Court, March, 1921. [Vol.114.
Charles H. Kavanatjgh, Plaintiflf, v. Cohoes Power
AND Light Corporation, Defendant.
(Supreme Court, Albany Trial Term, March, 192L)
OontractB — eqnitable interpretation.
Conveyance — reservation of rent and right of re-entry for non-
payment in perpetnal leases creates an estate upon condition —
relationship of landlord and tenant — tenant estopped from
asserting rights by prescription.
In the interpretation of a contract the court will endeavor to
give it the construction most equitable to both parties instead
of a construction which will give one of them an unfair and
unreasonable advantage over the other.
Where a conveyance of land to the grantee, his executors,
administrators and assigns forever, contains a reservation of
perpetual rent, and the right of re-entry for non-payment, the
estate created is upon condition and not in fee simple. Such
a conveyance creates the relationship of landlord and tenant,
and the tenant is estopped from asserting any rights by
prescription.
In an action by the purchaser from the tenant of lands held
under such perpetual leases, where the tenant had defaulted in
the payment of the rent and the landlord and tenant had entered
into a contract, after such default of which the purchaser had
knowledge, held, that the rights of the purchaser were deter-
mined by the contract which, fairly construed, limited the pur-
chaser to the amount of water power fixed in the leases and
described in the contract and excluding certain excess water
power claimed by prescription and estoppel, and that defendant
was entitled to a dismissal of the complaint and to an affirmative
judgment on its counterclaim cancelling and annuling the leases
pursuant to such contract.
Action to determine water power rights,
Brackett, Todd, Wheat & Wait, for plaintiflf.
Ingraham, Sheehan & Moran, for defendant.
HiNMAN, J. The plaintiflf purchased certain lands
in the city of Cohoes from the estate of Charles H.
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B^AVANAUGH V. CoHOES PoWBB & LiGHT CoRP. 591
Misc.] Supreme Court, Marohy 1921.
Adams for the purpose of obtaining certain electric
power rights from the defendant, a corporation which
has installed a hydro-electric power plant in the city
of Cohoes. This power plant was installed for the
purpose of supplying electric power in the place of
water-power which had been supplied for many years
in that city by the predecessor of the defendant. The
plaintiff's predecessor in title had been supplied with
water-power rights under instruments which may be
here denominated as perpetual leases, obtained from
the predecessor in title of the defendant.
The plaintiff having purchased the lands in question
with certain power rights attached thereto from the
estate of Charles H. Adams is now demanding judg-
ment from this court determining the quantity of
water-power which said premises were entitled to use
on the 12th day of December, 1913, the date on which
the property of the Adams* estate was destroyed by
fire as will hereafter appear, and what quantity of
water-power the said lands were entitled to use on
the 13th day of October, 1917, the date of the purchase
of the premises by the plaintiff and what power rights
were acquired by the plaintiff when he purchased said
lands on said date.
The plaintiff is further seeking judgment of this
court requiring the defendant to enter into a contract
with the plaintiff for the supplying of a quantity of
electric x>ower equal to the water-power which this
court shall determine the said lands were entitled to
use at the time when the plaintiff purchased the same
and further judgment fixing the damages which the
plaintiff has sustained by reason of the defendant's
failure and refusal to enter into such a contract and
granting the plaintiff judgment for the amount of
such damages.
The defendant defends upon the ground that the
rights of the parties have been fixed and determined
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692 Kavanaugh v. Cohoes Power & Light Corp.
Supreme Com-t, March, 1921. [Vol. 114-
by a contract between the defendant and the estate of
Charles H. Adams which it is claimed fixes the obliga-
tions of the defendant as to the amount of water-
power or electric power which the defendant can be
required to furnish, namely, the equivalent in electric
power of six mill-power, defined in the so-called per-
petual leases, rather than the quantity claimed by the
plaintiff, namely the equivalent of fourteen and eighty-
two one-hundredths mill-power, the difference between
which amounts the plaintiff claims he is justly entitled
to receive by virtue of prescriptive rights vesting in
the estate of Adams which the defendant is estopped to
deny and by virtue of a further estoppel running
against the defendant in connection with the amount
of mill-power or electric power which the defendant
is estopped to deny the said lands were entitled to use
at the time when the plaintiff purchased.
The defendant, relying upon said agreement be-
tween itself and the estate of Charles H. Adams as
fixing the rights of the parties, alleges that there was
a failure on the part of the plaintiff and said Adams*
estate to perform on their part the conditions by them
to be performed and demands by way of counterclaim
that it have judgment, that the said perpetual leases
have been cancelled and surrendered and that upon
compliance by the defendant with the terms and con-
ditions of the said agreement between the defendant
and the said Adams' estate, the said leases be can-
celled and surrendered.
The theory developed by the plaintiff upon the trial
seems to me to have de\aated from the theory reason-
ably to have been implied from his pleading to the
extent that whereas in the pleading it would appear
as a reasonable conclusion that the plaintiff relied
upon the said agreement to fix his rights, the proof
develops a theory based upon estoppel. The court
reached the conclusion during the conduct of the trial
that it was not necessary to plead the estoppel and
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Kavanaugh v. Cohobs Power & Light Corp. 593
Misc.] Supreme Court, Mareh, 1921.
great liljerality was shown to the plaintiff in permit-
ting introduction of testimony upon the theory of
estoppel over the protest of the defendant. The re-
sult has been that the problem has been complicated
by requiring the consideration of many matters which
otherwise would not have been permissible if the
theory of the plaintiff had been a reliance upon said
agreement.
The court has not changed its mind with reference
to this liberal view of the plaintiff *s contention and
has determined to consider the testimony offered in
relation to the matters other than the contract itself
for the purpose of shedding such light upon the said
contract as may be i)Ossible for the purpose of deter-
mining its true intent and meaning and for the pur-
pose of determining whether the plaintiff can justly
claim any rights by estoppel as against the defendant.
The chief facts leading up to the making of the
agreement between the defendant and the estate of
Charts H. Adams which was executed October 16,
1916, should be known for the purpose of a proper
understanding of the situation of the parties at the
time of its execution. Prior to 1849 the Cohoes Com-
pany, the predecessor of the defendant, had con-
structed and thereafter maintained a dam in the
Mohawk river above the Cohoes falls by means of
which it diverted the waters of said river into a sys-
tem of canals owned and maintained by it, located in
Cohoes and distributed water through said system of
canals to various mill and factory sites and the same
was used for power and other purposes.
On October 17, 1849, the Cohoes Company by an
instrument in writing demised, leased and to farm let
unto Egbert Egberts, his executors, administrators
and assigns forever, the .premises in question,
together with the privilege and right to draw from
one of the canals of said company a certain amount
of water thei^ein prescribed at a certain definite
38
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504 Kavanaugh v. Cohobs Power & Light Corp.
Supreme Court, Maitsh, 1921. [Vol. 114.
yearly rental. By the terms of this instrument the
Cohoes Company was entitled to re-enter into and
upon the demised premises and repossess itself of the
same npon default in the payment of snch rent.
About January 1, 1852, the said Egbert Egberts
assigned his interest in said premises with the water
rights appurtenant thereto to Charles H. Adams.
Thereafter and by written instrument dated January
2, 1866, the Cohoes Company granted to the said
Charles H.Adams, his heirs, administrators, executors
and assigns, the further right and privilege as appur-
tenant to the lands and premises described in said
lease to said Egberts, additional water for what was
defined as four mill-power in said instrument upon
the payment of further and additional yearly rent
therefor.
The said Charles H. Adams died about 1902 leav-
ing a last will and testament which was admitted to
probate in January, 1903. William P. Adams, named
as one of the executors and trustees, alone qualified
as such and continued to be and act as such executor
and trustee until after the sale of the premises in
question to the plaintiff herein.
A mill was maintained on the said Adams premises
for more than thirty years prior to December 12,
1913, when the same was destroyed by fire. There
was no measuring device utilized to determine the
amount of water-power used at any time.
In June, 1910, the Cohoes Company caused a
measurement of the quantity of water passing
through the said mill to be made and it was found
that the mill was using at that time an average of
fourteen and eighty-two one-hundredths mill-power
instead of the lesser quantity fixed by the said leases.
The measurement made in June, 1910, was apparently
the only measurement made during the period of said
leases.
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Kavanaugh v. Cohoeb Poweb & Light Corp. 595
Misc.] Supreme Court, March, 1921.
After making the measurements of water power at
said premises in June, 1910, the Cohoes Company
notified said Adams of the measurements and called
upon him to pay the additional rent commensurate
with the additional water power which was being
used. It seems that for more than thirty years the
premises had not been used by Adams but the space
' therein had been rented by Adams to various tenants,
who utilized the water power furnished. When called
upon to make such additional rent payments said
Adams notified the Cohoes Company that the revenue
from his tenants would not warrant his paying the
amount so demanded and the Cohoes Company per-
mitted the use of said water-power upon the con-
tinuance of the payment of the rental prescribed
under the leases of 1849 and 1866.
The testimony fails to show that the said William
P. Adams, the executor, or the said Charles H.
Adams, ever knew the number of mill-power utilized
on said premises prior to the measurements made by
the Cohoes Company in 1910, and neither ever at any
time claimed the right as against the Cohoes Com-
pany to use water-power on said premises in excess
of the quantity specified in the said instruments of
1849 and 1866.
In or about the year 1913, the Cohoes Company
formulated a plan for the utilization of the water-
power of the Mohawk river in the generation of elec-
tric power at a central station and the distribution of
such electric power among its many lessees and other
users of power in the city of Cohoes in the place and
stead of the water-power then and theretofore fur-
nished through its canal system. In order to carry
out its plan of conversion from water-power to elec-
tric power it was necessary to enter into new agree-
ments with the several lessees using water-power for
the substitution of electric power in its stead.
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596 Kavanaugh v. Oohoes Poweb & Light Corp.
Snpreme Court, March, 1921. [Vol. 114.
Extended negotiations were entered upon between the
said Cohoes Company and its lessees for this pur-
pose which resulted in the preparation of forms of
contract whereby the lessees agreed that the Cohoes
Company might use the water-power for the genera-
tion of electricity at such station, on its agreement to
furnish a specified quantity of electric power to the
said lessees in place and stead of water-power.
During the progress of such negotiations which
lead up to the said forms of contract the lessees of
the Cohoes Company who had used water-power addi-
tional to the quantity specified in their respective
leases and had paid therefore at the rate per mill-
power stipulated in their respective leases, asserted
a right to the continued use of such water-power,
which right was always disputed by the Cohoes Com-
pany. To induce the said lessees to enter into con-
tracts for electric power in lieu of water-power, the
Cohoes Company consented that the form of contract
should contain a clause admitting the right of any
lessee who signed such contract to the use of such
additional water-power and the forms of contract so
prepared recited the use of water-power in addition
to that specified in the respective leases and provided
for the furnishing of an equivalent of electric energy
in lieu of such excess water-power at the same rate
per kilowatt hour as the electric energy to be supplied
in lieu and stead of the water-power specified in the
respective leases.
The said William P. Adams, as executor of the
estate of Charles H. Adams, never took part and
never was represented in any of the negotiations lead-
ing up to the preparation of such forms of contract.
The forms, however, as prepared, were printed and
sent to said Adams. The final form was agreed upon
between the lessees taking part in the negotiations
and the Cohoes Company in the year 1916, and a
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Kavanaugh v. Cohobs Poweb & Light Corp. 597
Misc.] Supreme Court, March, 1921.
printed copy of what i« known as the *' Knittere*
Contract '^ was sent to said William P. Adams, and
contained among other recitals the following :
** Whereas, the Grantor (the Cohoes Company)
has granted and the Grantee (Charles H. Adams
Estate) has been for years furnished and has become
entitled to receive from the Grantor additional water
to the amount of 8.82 mill power, at an additional
yearly rent of $ .00, which additional mill power is
agreed to be furnished to the Grantee as appurtenant
to and inseparable from said lands described in said
hereinbefore recited Indenture and by reason of the
grant of said lands therein described which additional
mill power with the mill power described in said
hereinbefore recited Indenture aggregate 14.82 mill
power and which rents aggregate an annual rent of
$1200.00."
Said form of contract provided for the confirmation
of the demise of the premises described in the instru-
ment of October 17, 1849, with the right and privilege
as appurtenant to and inseparable from said lands, to
draw and take from the electric service connections
of the Cohoes Company at or near the point or points
where its service conductors enter the premises,
233,918 kilowatt hours of electric energy yearly in
each calendar year between certain hours and for a
certain number of working days in the year and to be
taken at a certain rate. Said Adams estate was to pay
to the Cohoes Company therefor at the rate of $1,200
per annum in quarterly payments of $300. It is to
be especially noted that the $1,200 was the aggregate
of the rental for water-power under the instruments
of October 17, 1849, and January 2, 1866, and that the
said 233,918 kilowatt hours of electric energy yearly
was the equivalent in electric energy of six mill-power
in water-power, the amount prescribed in the said
instnunents of 1849 and X866, This form of contract
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598 Kavanaugh v. Cohoes Power & Light Cobp.
Supreme Court, March, 1921. [Vol. 114.
was never executed by either party. The said form
was retained by said Adams and was delivered by
him to the plaintiffs at the time of the sale of the
Adams' interest in the said premises which took place
in October, 1917.
All of the lessees of the Cohoes Company with tha
exception of said Adams and one or two others, exe-
cuted contracts for the substitution of electric energy
in the place and stead of water-power. Such con-
tracts provide for priorities in the use of electric
power in the event that the Cohoes Company is unable
to furnish each lessee his full requirement due to low
water in the Mohawk river in dry seasons. For the
purpose of establishing such priorities it is provided
in such contracts that the persons, firms and corpora-
tions enumerated on a schedule thereto attached who
shall grant to the Cohoes Company prior to March 13,
1917, the right to take and use for the generation of
electric energy water to which they are entitled under
their respective leases or otherwise, and to whom the
Cohoes Company has granted or may grant the right
to take and use for power purposes electric energy so
generated, shall be known as *' indentured grantees
of electric energy'' and entitled to the priorities as
specified in said agreement. The said schedule in
respect of the premises in question in this litigation
set forth the name of Charles H. Adams as an inden-
ture grantee under the grants of 1849 and 1866 and
set forth the number of mill-power granted by such
indentures as six mill-power, and under a heading
** No. of Mill Power to which entitled other than by
written grants,'' the figure 8.82, and under a heading,
** Total Mill Power," the figure 14.82.
The said Charles H. Adams' estate did not, prior
to March 13, 1917, grant to the Cohoes Company the
right to take and use for the generation of electricity
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Kavanaugh v. Cohoeb Poweb & Light Corp. 599
Misc.] Supreme Court, March; 1921.
water to which it was entitled, nor did the Cohoes
Company prior to said date grant to said estate the
right to take and use electric energy for power pur-
poses, and the said Charles H. Adams ^ estate never
became an ** indentured grantee of electric energy '*
within the meaning of said schedule, and as to said
Adams' estate the said schedule became wholly
ineflfective.
The Adams' mill on the premises in question was
destroyed by fire in December, 1913, and has not been
rebuilt. Said premises at all times since have been
vacant and unoccupied and the Adams' estate discon-
tinued the payment of rent for about three years sub-
sequent to October, 1913. The amount of back rents
amounted to $3,600, at the time of the agreement
between the defendant and the Adams' estate of
October 16, 1916. By reason of such default the
Cohoes Company was entitled to re-enter into and
upon the demised premises and repossess itself of the
same. Instead of doing so, however, the Cohoes Com-
pany entered into an agreement with the executor of
the Adams' estate on October 16, 1916. Since this
case is to be largely determined by the exact language
of this agreement it is important to consider its exact
language. It reads as follows:
*' Memorandum of agreement made this 16th day
of October, 1916, between the Cohoes Company, a
corporation duly organized under the laws of the
State of New York, party of the first part, and
William P. Adams, as executor of the Estate of
Charles H. Adams, deceased, party of the second part.
Witnesseth:
** Whereas the Charles H. Adams' Estate is the
owner and holder of two certain indentures of lease
of land and water power made by the Cohoes Com-
pany under date of October 17th, 1849, for two mill
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GOO Kavanaugh v. Cohoes Poweb & Light Corp.
Supreme Court, March, 1921. [Vol.114.
power, and January 2nd, 1866, for four mill power,
and
** Whebeas the mill and buildings located upon the
premises in the City of Cohoes, described in the afore-
said grants have been destroyed by fire.
'' Now therefore, this agreement witnesseth:
*' The party of the first part hereby agrees that
for a period of one year from this date it will insti-
tute no steps, legal or otherwise, for reentry upon the
leased premises or to recover the rents now past due
and in arrears, amounting on the 1st day of October
to the sum of Thirty-six hundred (3600) Dollars, and
that during the said period of one year from the date
of this agreement the party of the second part shall
have full and free opportunity to sell its interest in
the property described in the said leases of land and
water power.
** In case the interest of the party of the second
part in the said lands is not sold before the expira-
tion of the period of one year from this date, then
the party of the second part hereby agrees to surren-
der and cancel the said grants made by the Cohoes
Company, upon the waiver by the party of the first
part, of all rents due and in arrears, and the payment
by the party of the first part to the party of the
second part of the sum of Fourteen hundred (1400)
Dollars.
*' It is further agreed between the parties hereto
that in case a sale should be made by the party of the
second part of its interest in the property described
in the said grants, that said sale shall be upon the
express condition that the purchaser shall, upon
taking title, pay to the party of the first part all rents
then past due and in arrears, and sign, execute and
deliver with the Cohoes Company a contract for elec-
trical power in the place and stead of the water power
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Kavanaugh v. Cohoes Poweb & Light Corp. 601
Misc.] Supreme Court, March, 1921.
referred to in said grants, in either the knitting mill
or bat mill form of electrical contract, as said pur-
chaser shall then elect.
''It is further agreed between the parties hereto
that the party of the second part shall have the right
to cancel and surrender the above mentioned grants
of land and water power at any time which it may
desire, prior to the expiration of one year from the
date hereof, and upon such cancellation and surrender
the party of the first part shall waive and release all
payments for rent in arrear, and the party of the first
part shall pay unto the party of the second part the
sum of Fourteen hundred (1400) Dollars.
'' In Witness Whereof the parties have hereunto
set their hands and seals the day and year first above
mentioned.
** CoHOES Company,
'* By Lorenzo Semple,
'' President.
** William P. Adams, as Executor of
** the Estate of Chas. H. Adams.''
By this agreement of October 16, 1916, the Cohoes
Company agreed to waive said default in the pay-
ment of rent and the consequences thereof including
its rights to re-enter and repossess itself of said prem-
ises upon the condition that if the Adams' estate
should sell its interest in said premises within one
year from the date of said agreement such sale should
be on the express condition that the purchaser upon
taking title would pay all rent in arrears and sign,
execute and deliver with the Cohoes Company a con-
tract for electric power '*in the place and stead of
the water power referred to in said grants.'' The
'* said grants " referred to in the agreement are the
grants of 1849 for two mill-power and of 1866 for four
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602 Kavanaugh v. Cohoes Power & Ljght Corp.
Supreme Conrt, March, 1921. [Vol. 114.
mill-power. At least that is the contention of the
defendant, the defendant claiming that the words
above quoted are words of limitation and necessarily
refer to the quantity of power. The plaintiff con-
tends, however, that it is the fair interpretation of the
contract that reference to the grants was not intended
to limit the quantity of power but was descriptive of
the kind of power to be displaced. It is conceded that
the agreement was drawn by the president of the
Cohoes Company, and it is contended by the plaintiff
that any ambiguity in the contract should be con-
strued most strictly against the party who prepared
it. The importance of this question to both of the
parties is seen when we consider that the difference
in rate of charge for electric energy that would be
paid to the company or saved by the plaintiff in con-
nection with the additional mill- power in dispute,
would be the difference between about one-half cent
per kilowatt hour if covered by the agreement and
one and one-half cents per kilowatt hour if not covered
by the agreement and if the regular rate of the com-
pany a« fixed by its schedules filed with the public
service commission is to prevail.
On October 13, 1917, three days before the expira-
tion of said agreement between Adams and the Cohoes
Company, the said William P. Adams as executor of
the estate, by an instrument in writing, conveyed to
the plaintiff the premises in question, together with
all power rights under the instruments of 1849 and
1866 ** together with all rights to extra water power
acquired by Charles H. Adams, deceased, by reason
of the use of water power in excess of that set forth
in said leases.'* The sale of the interest of said
Adams, so made by the instrument of October 13,
1917, was not upon the express condition that the
plaintiff should upon taking title, or at any other
Kavanaugh v. Cohoes Power & Light Corp. &03
Misc.] Snpreme Court, March, 1921.
time, pay to the Cohoes Company the rents then past
due, or sign, execute or deliver with the Cohoes Com-
pany a contract for electric power in the place and
stead of the water power referred to in the instru-
ments of 1849 and 1866, nor did the plaintiff by said
instrument agree to execute any contract for elec-
trical power, or assume any obligation with respect
thereto.
On October 13, 1917, however, the executor of the
Adams' estate paid to the Cohoes Company the rent
in arrears on said premises amounting to $4,850, and
on October 15, 1917, the plaintiff caused to be served
on the Cohoes Company the following notice :
" To THE Cohoes Company.
''Cohoes, N. T.:
** Gentlemen. — This is to notify you that I have
purchased from the Charles H. Adams' Estate, prem-
ises situate on the Northwest comer of Eemsen and
Factory streets, Cohoes, N. T., together with all
power rights appurtenant to said premises, and that
I am prepared and ready to enter into a contract, with
your Company, for electric power under your usual
form of contract, known as the Knitting Mill Con-
tract, for Fourteen and eighty-two one hundredths
(14 82/100) mill power. Said electric power being
substituted for the water power to which said prem-
ises are entitled, under leases and by usage from
your Company.
*' This notice is served to comply with the condi-
tions set forth in the contract entered into between
your Company and the ^said Charles H. Adams'
Estate, dated October 16, 1916.
** Charles H. Kavanaugh.
** Dated Cohoes N. Y., by
'' October 15, 1917. Frank W. Neart
''Attorney vn Fact."
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604 Kavanaugh v. Cohobb Power & Light Coep.
Supreme Court, March, 1921. [Vol. 114.
The Cohoes Company declined to enter into a con-
tract with the plaintiff for the supply of electric
power the equivalent of fourteen and eighty-two one-
hundredths mill-power and stated to him that the
premises were entitled to but six mill-power.
I am unwilling to determine the issues between these
parties upon the basis of the failure to have expressed
in the deed that the conveyance was made upon
the express condition that the rents in arrears should
be paid by the grantee, and that such grantee should
agree to enter into such an electrical contract. While
the plaintiflF did not expressly assume the contem-
plated obligations, the rents were in fact paid, and the
plaintiff immediately made an offer to the only person
interested with reference to the signing of an elec-
trical contract. The real question is whether the
offer then made meets the terms of the agreement
between Adams' estate and the company.
The mutuality contemplated by the contract such
as would be enforceable by the company was accom-
plished by the offer made so far as the electrical con-
tract was concerned and if the plaintiff had made an
offer to contract for six mill-power instead of the four-
teen and eighty-two one-hundredths mill-power, it
would seem clear to me that the defendant could be
compelled to live up to an agreement implied from
the whole tenor of its contract with the Adams' estate,
but that question is not presented in as much as this
is not an action to compel the making of such a con-
tract for the equivalent of six mill-prwer. The
defendant has never been requested to make any such
contract and it has never declined to make such a
contract.
It is the claim of the defendant that the Adams'
estate failed to comply with the condition in its con-
tract of October 16, 1916, with reference to an elec-
Ejlvanaugh v. Cohoes Power & Light Corp. 605
Mise.] Supreme Court^ March, 1921.
trical contract in the place of water-power for six
mill-power and that the default of the Adams' estate
in payment of rent was never waived and that the
Cohoes Company was entitled to re-enter in and upon
the demised property and repossess itself of the same.
The defendant offered on the trial of this action to
return or pay into court the rent paid by the said
Adams October 13, 1917, with interest thereon to
date of payment, and also the sum of $1,400 provided
for by said contract with interest thereon.
It becomes clear from the foregoing statement of
facts that on October 16, 1916, the date of the con-
tract between the defendant company and the Adams'
estate, such estate was in default in the payment of
its rents and had been for three years, and that the
company had the right at that time to re-enter and
repossess itself of the property under the terms of the
instruments of 1849 and 1866.
It is clear that being in default the said estate had
no rights to assert either as to the water-powers
expressly granted by the lease or as to any excess
water-powers that might have accrued to it. It was
the agreement of October 16, 1916, which revived any
rights that the estate may have possessed prior to its
default and so far as the estate and those holding
under it are concerned, their rights must be fixed by
the agreement itself, unless there has accrued to the
plaintiff some additional right by way of estoppel
which question will be considered later. The only
object of considering whether the Adams' estate
had ever been possessed of rights by prescription or
estoppel, to additional water-powers beyond those
expressly set forth in the instruments of 1849 and
1866, arises out of the fact that there is a contention
between the parties here as to the quantity of water-
power, if any, referred to in the agreement of October
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606 Kavanaugh v. Cohoes Power & LaGHT Corp.
Supreme Court, March, 1921. [Vol. 114.
16, 1916, In other words, as bearing upon the mutual
intention in interpreting this contract, an important
question arises as to whether the estate had ever had
any right to this excess water-power.
The court will endeavor to give that consideration
to a contract which is most equitable to both parties
instead of a construction which will give one of them
an unfair and unreasonable advantage over the other.
Fleischmcm v. Furgueson, 223 N. Y. 235.
In determining whether the Adams' estate ever
acquired any right by prescription to any water-
powers in excess of those granted in the instruments
of 1849 and 1866, it becomes necessary to consider the
question of the relationship of the parties created
under these instruments. Did they create the rela-
tionship of landlord and tenant T This appears to be
important because it is fundamental that the tenant
cannot set up adverse possession while the relation-
ship of landlord and tenant continues. The tenant
cannot dispute the title of his landlord. But when
does this relationship exist? Does a conveyance with
a reservation of rent create it! Has the constitu-
tional provision abolishing feudal tenures and their
incidents in any way affected this matter, or is the
relationship a thing separate and apart from tenure
as known at the common lawT It is the claim of the
plaintiff that the rule prohibiting a tenant from
acquiring a title by adverse possession against his
landlord has no relation in respect to a grantee of an
estate of inheritance, where provision has been made
for the pajTuent of a perpetual rent with the right of
the grantor to re-enter upon default in the payment
thereof. It is the claim of the plaintiff that an estate
of inheritance was created. It is the claim of the
defendant on the other hand that the instrument of
1849 did not convey the fee of the demised prexmses,
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Kavakaugh v. Cohoes Power & Light Corp. 607
Misc.] Supreme Court^ March, 1921.
but was at most a life estate during the life of the
lessee. The provision in the instrument of 1849 which
is important for our consideration is that the '* parties
of the first part for and in consideration of the yearly
rents, covenants and conditions hereinafter contained
on the part of the said party of the second part, his
executors, administrators and assigns, to be paid,
kept and performed, have demised, leased and to farm
let unto the party of the second part, and to his execu-
tors, administrators and assigns, all that certain,
piece or parcel of land, etc. • • •
'' To have and to hold the said parcel of land with
the privileges and appurtenances unto the said party
of the second part, his executors, administrators and
assigns forever. • • •
'' Yielding and paying therefor, yearly and every
year thereafter unto the said parties of the first part
or their assigns, the yearly rent,'' etc.
Setting forth as the basis of such rent the rental
value of a certain amount of water power described
in the instrument and made appurtenant to the
premises.
It was further covenanted and agreed that the
Cohoes Company should have the right of re-entry in
the case that the rents were not paid.
The words ** demise, lease and to farm let '' con-
tained in this instrument are apt words of a lease.
Watk. Conv. 207. Technically and in its proper sig-
nificance the term ** lease '' refers to a deed of a less
interest than the lessor has, for, as Blackstone says,
if it is of the whole interest it is more properly an
assignment than a lease. 2 Black. 317.
Also, a lease is usually and properly in consider-
ation of a yearly rent, as is the instrument in ques-
tion, and the proper language for reserving it is
*' yielding and paying therefor yearly *' during the
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608 Kavanaugh v. Cohoes Power & Ljght Corp.
Snpreme Court, March, 1921. [Vol. 114.
term, the rent in the amount named. An assignment,
on the other hand, is properly the transfer of one^s
whole interest in any estate, but it is generally appro-
priate to the transfer of chattels either real or per-
sonal, or of equitable interests. Watk. Conv. 227;
2 Black. Comm. 326.
If the conveyance in question is in fee, it may, in
want of a better term, be called a lease as it is in that
form, though it is in the nature of an assignment.
The lease of 1849 runs to Egbert Egberts, his execu-
tors, administrators and assigns, forever. At com-
mon law this would convey but a life estate. The rule
is stated by Littleton thus: *' For if a man would pur-
chase lands or tenements in fee simple, it behooveth
him to have these words in his purchase, To have and
to hold to him and to his heirs ; for these words [his
heirs] make the estate of inheritance. For if a man
purchase lands by these words, To have and to hold to
him forever; or by these words. To have and to hold
to him and his assigns forever; in these two cases he
will have but an estate for term of life, for they lack
these words [his heirs], which words only make an
estate of inheritance in all feoffments and grants.'*
Littleton, § 1.
At the time the lease in question was made, how-
ever, our Eevised Statutes provided that words of
inheritance were not requisite to create or convey an
estate in fee, and that every grant or devise of real
estate, or any interest therein, shall pass all the
estate or interest of the grantor or testator, unless the
intention to pass a less estate or interest shall appear
by express terms, or be necessarily implied in the
terms of said grant; and the Revised Statutes fur-
ther provided that in the construction of every instru-
ment creating or conveying any interest or estate in
land, it shall be the duty of the courts of justice to
Kavanaugh v. Cohoes Power & Light Corp. 609
Supreme Court, March, 1921. [Vol.114.
carry into effect the covenant of the party so far as
such covenant can be collected from the whole instru-
ment and is consistent with the rules of law. B. S.
pt. II, chap. 1, title V, §§ 1, 2. These sections have
been substantially continued in the Real Property
Law. Real Prop. Law, § 240.
The conveyance in question runs to Egbert Egberts,
his executors, administrators and assigns. The haben-
dum reads that Egberts is to have and to hold said
piece or parcel of land unto himself, ** his executors,
administrators and assigns forever/* These words,
considered without reference to technical rules, are
inconsistent with a mere life estate. An estate for
life does not run to a person and to his executors and
administrators. It can be measured only by a life,
and it does not survive to executors or administrators
of the person whose life measures the duration of the
estate, and who is the owner of the estate. More-
over, the use of the word *' forever'' in the haben-
dum is inconsistent with a mere life estate. Neither
can the conveyance be considered a lease for a term
of years, because there is no definite term set forth. It
is essential to create a lease for years that the term be
certain. It must have a certain beginning and a cer-
tain end. Co. Litt. 58. There must always be a time
absolutely fixed, beyond which the estate cannot con-
tinue. There may be a term created for 99 years,
** provided ' AB ' live so long. Here, if * AB ' die before
99 years expire, the term shall cease, but, though
* AB ' should survive the 99 years, the lease on the
expiration of the 99 years would be absolutely at an
end." Watk. Conv. 12.
Since words of inheritance are unnecessary to
create a fee, the terms of the instrument are con-
sistent with the existence of such an estate, and incon-
sistent with a lesser interest.
39
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610 Kavanaugh v. Cohoes Power & Light Corp.
Supreme Court, March, 1921. [Vol. 114.
The estate created, however, is not in fee simple
absolute, but by reason of the reservation of the rent
and right of re-entry for non-payment, it is an estate
upon condition. Van Rensselaer v. Ball, 19 N. Y. 100;
2 Black. Comm. 109.
Not only the terms of the instrument indicate that
an estate in fee rather than a life estate was intended
to be created, but the form, likewise, leads to this con-
clusion. The instrument is partly written and partly
printed. The printed part was drawn by a skillful
conveyancer in the form of a lease for years, with a
blank in the habendum for the statement of the term.
When this conveyance was drawn the parties used
the printed form and in the habendum instead of
inserting a term of years, inserted the word ** for-
ever.'^ Undoubtedly, the intention of the parties was
to create an estate in fee, and they used the printed
form because it was conveniently at hand, adapting
it as best they could to the agreement of the parties.
Having reached this conclusion, we are next con-
fronted with the vexing question whether a convey-
ance in fee reserving to the grantor and its successors
and assigns a perpetual rent with a right of re-entry
on default of payment, creates the relationship of
landlord and tenant so as to estop the plaintiflF from
asserting any rights by prescription.
At the present time the relationship described by
the words *' landlord and tenant '^ is ordinarily
understood to mean that existing between a lessor and
lessee in reference to an estate for years. When we
use these words in reference to an estate of inheritance,
we have difficulty if we attempt to obtain any insight
into the rules applicable thereto, from precedents in
our courts.' And because of our unfamiliarity with
the English system of landholding except in a desul-
tory historical way, we are bound to be somewhat
Kavanaugh v. Cohoes Power & L i
Mise.] Supreme Court, March, 192:
laborious, when we attempt to trac i
apply them to modem conditions. E i
true of the relation of landlord an<
title comprehends that of lord and t i
longer in general use.
The decay of the relation of lord am \
blending of it in that of landlord and
so gradual that there is no telling y \
began. The ancient rules which, in the
have now become more or less obso
slowly adapted to changed conditions I
and extended by legislative enactment
a system of land law entirely diflFerent i
original. The contrast between the ol
is striking. A line of demarkation ca :
although there have been some abru]
tionary changes. Thus, under the
where a mesne lord made a feoffment i
to the feoffee and his heirs rendering
forming services, the relation of lord a
constituted between the parties, the 1
of the lord and thus by tenure. The i
must be a tenure to constitute the relati
tenant or landlord and tenant persisted
after the statute of Quia Emptores whi
to promiscuous, subinfeudation. Thert
tenure could not be created upon a com
(except in case of the king, etc., not
notice, People v. Van Rensselaer, 9 N.
upon the conveyance of a lesser estate
in fee, a tenure, though imperfect, wou
incident to the reversion. Thus a revei
essary to create a tenure, and tenure -»
to constitute the relation of landlord ai
The reasons for these rules, I wi
discuss.
612 Kavanaugh v. Cohoes Power & Light Cobp.
Supreme Court, March, 1921. [Vol. 114.
By the law of England, there is a fundamental maxim
or fiction (Wright Ten. 58) that all lands and tene-
ments are holden mediately or inmiediately of the king.
Co. Litt. la. The thing holden is styled a tenement,
the possessor, a tenant, and the manner in which it is
held, the tenure. 2 Black. Comm. 59. Tenure has been
the backbone of the English system of landholding;
it always implies the relation of lord and tenant or
landlord and tenant. All lands in England in the
hands of a subject necessarily are held of some
superior lord (Co. Litt. lb), if not of a mesne lord,
then of the king as lord paramount. It was by impli-
cation of this theory that the king, after the conquest,
granted, regranted, or in effect at least confirmed to
the chief men of the kingdom large parcels or tracts
of land called feoda in return for services. According
to the custom of the times these chief tenants, if they
had not already done so, in turn, granted to others,
portions of their lands to hold of them by the per-
formance of services, and thus the process of subin-
feudation was continued to the lowest tenant who cul-
tivated the land and gathered the crops. The lowest
or tenant paravail performed his service to the next
superior in order. Wright Ten. chap. 11; Digby's
Hist. Law of Real Prop. (5th ed.) 37; 1 Pollock &
Maitlondi Hist. Eng. Law, 232-240; 2 Black. Comm. 45,
59; Comyn Lord & Ten. Int.; Burton Real Prop. 316;
Gilbert Rents, 1; Watkins Ten. XIII; Bell Land. &
Ten. 6-10; 1 Reeves Hist. Eng. Law (Finlason), 238.
In this manner was the relation of lord and tenant
created. There may have been a long train of sub-
ordinate lords between the king and the actual tenant
of the land. The duties owing by each tenant to his
superior constituted the tenure of the land, and the
corresponding right in each superior was called the
seignory. Burton Real Prop. 316. Where the tenant
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Kavanaugh v. Cohoes Power & Ljght Corp. 613
Misc.] Sapreme Court, March, 1921.
paravail was a tenant in fee, the tenure was perfect
and constituted a substantive and independent seig-
nory. The seignory somewhat resembled a reversion
as this term is used in the law of estates. Burton
Real Prop. chap. VI. Thus, as one of the fruits of a
seignory is escheat, which signifies properly when by
accident the lands fall to the lord of whom they are
held, as by the tenant's failure of heirs or attainder
of treason, it resembled a reversion. 2 Britton, chap.
VI; Co. Litt. 13a.
Indeed, an escheat has been called a reversion,
though improperly. Digby Real Prop. (5th ed.)
226, n. 1. A reversion proper arose when a tenant in
fee simple made a gift in tail, or a lease for life or
years. Lord Coke in his commentaries on Littleton
gives other examples but in the last analysis it
appears that in these there is always a remnant of the
fee left in the grantor, however complicated the limi-
tation. Co. Litt. 22b.
In the year 1290 the custom of subinfeudation had
become intolerable, whereupon the statute Quia Emp-
tores was enacted. 18 Edw. chap. 1.
Thereafter no new tenure could be created on a
feoffment in fee simple, unless by the king or a tenant
in capite (which it is not here necessary to notice)
because by the force of the statute, all lands and tene-
ments so granted were held of the chief lord of the
same fee by such services and customs as the feoffor
held before. Burton Real Prop. 317; 2 Black.
Conam. 91.
The effect of this statute was to prevent subin-
feudation, and to permit alienation of lands in fee,
free and clear of any new tenure.
Before the statute of Quia Emptores if a man made
feoffment in fee simple, yielding to him a certain rent,
this was a rent service and a tenure was created
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614 Kavanaugh v. Cohoes Power & Light Corp.
Supreme Court, March, 1921. [Vol. 114.
between the parties. The relation of landlord and
tenant was thereby created and as an incident thereto
the landlord by reason of the relationship might dis-
train as of common right. So too where a feoffment
in ffee was made before the statute and there was no
reservation of any rent or service yet the feoffee held
of the feoffor by the same service as the feoffor did
hold over of his next lord paramount. In such a case a
tenure was created and the relationship of landlord
and tenant came into existence, for the feoffee held of
the feoffor and not of the lord next paramount to the
feoffor. After the statute this would not be a fact.
When the feoffor parted with his fee the relationship
of landlord and tenant did not spring up as between
the feoffor and feoffee but the lands were held by
the feoffee under the old tenure, that is of the landlord
of whom his donor held.
From this it is observed that after the statute of
Qiua Emptores where there was a conveyance in fee
reserving a rent without a clause of distress in the
deed, the rent was a rent seek, that is to say, a barren
rent, because, as there was no reversion the relation-
ship of landlord and tenant did not exist, and, there-
fore, the feoffee could not distrain as of common
right.
Where, however, a clause of distress was inserted
in the deed the rent was a rent charge and the feoffee
would have the right to distrain, not because the rela-
tionship of landlord and tenant existed between the
parties, but simply by reason of the clause in the deed.
The right to distrain in such a case arose by means
of the agreement or convention of the parties and not
by reason of the relationship which arose under the
deed. The binding tie between the landlord and the
tenant was fealty which was inseparably incident to
the reversion. In the case of feoffment in fee reserv-
Kavanaugh v. Cohobs Power & Ljght Corp, 61 5
Mise.] Supreme Court, March, 1921.
ing a rent after the statute, fealty did not exist
between the immediate parties to the deed as there
was no reversion. This is explained at length in the
sections relating to rents in Coke npon Littleton.
By the statute 4 Anne, chapter 16, the necessity for
attornment was done away with and by the statute 12 ,
Car. 11, chapter 24, military tenures were converted
into free and common socage. Successive alienations
of fees gradually weakened the tie between lord and
tenant and the relation generally became obliterated
except in existing manors. Digby Eeal Prop. (5th
ed.) 235. The relation of landlord and tenant how-
ever, especially in cases of estates for years, became a
developing institution, as is evidenced by the Land-
lord and Tenant Acts beginning in 1709. Although
fealty became a mere fiction and tenure little more
than a theory as its burdensome incidents were swept
away, it appears to me beyond question that English
lawyers at the time of American independence had no
other notion than that a reversion was necessary to
constitute the relation of landlord and tenant, and I
so understand the holding in PlucJc v. Digges, 2 Dow
& C. 180.
By the first Constitution of the state such parts of
the conunon law of England and of Great Britain and
of the acts of the Colonial legislature as together
formed the law of the colony at the breaking out of
the Revolution were declared to be the law of this
state, subject to alteration by the legislature. Art.
35. The statute of Quia Emptores and other acts con-
tained in the compilation of Jones & Varick were re-
enacted by the legislature so that our statutory record
would be as complete as possible. The effect simply
was to continue on our own statute book, statutes
which had always been the law of the colony. Van
Rensselaer v. Hays, 19 N. Y. 68. Practically, there-
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616 Kavanaugh V, Cohoes Power & Light Corp.
Supreme Court, March, 1921. [Vol.114.
fore, the law of landlord and tenant was imported
from England in substantially the condition in which
it existed in that country at the breaking out of the
Revolution. Its applicability, of course, was some-
times a question owing to the different conditions in
a new and unsettled country.
Howev6r, in this section of the state, both before
and after independence, it was customary for the Van
Bensselaers to convey farms in fee reserving a rent
either in money or in kind, with a right of re-entry and
distress. These perpetual leases, as they were called,
came before the courts in a number of cases and were
declared effectual. People v. Van Rensselaer, 9 N. Y.
334 ; DePeyster v. Michael, 6 id. 467 ; Devisees of Van
Rensselaer v. Executor of Plainer, 2 Johns. Cas. 26;
Watts V. Coffin, 11 Johns. 495; Van Rensselaer v.
Bradley, 3 Den. 135 ; Van Rensselaer v. Jones,b id. 449 ;
Jackson v. Collins, 11 Johns. 1; Van Rensselaer v.
Jewett, 5 Den. 121 ; Va^ Rensselaer v. Hays, id. 477 ;
Van Rensselaer v. Snyder, 13 N. Y. 299; Main v.
Feathers, 21 Barb. 646 ; Van Rensselaer v. Bonesteel,
24 id. 356 ; Van Rensselaer v. Gallup, 5 Den. 454 ; Fern
Rensselaer v. Roberts, id. 470.
The system of perpetual leases and rents developed
bitter controversies which culminated in the anti-rent
wars in this vicinity. These were finally settled by
the decision of the Court of Appeals in Van Rensse-
laer V. Hays, 19 N. Y. 68, and a few later decisions. on
the same subject.
It is not clear whether the Court of Appeals in the
early cases intended to decide that the relation of
landlord and tenant was created by a perpetual lease.
In Van Rensselaer v. Ha/ys, 19 N. Y. 68, it was held
that the defendant as assignee of the grantee of land
held under a lease in fee subject to a rent charge, was
liable to the plaintiff who was the representative of
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Kavanaugh v. Cohobs Power & Light Corp. 61 7
Misc.] Supreme Court, March, 1921.
the grantor for the rent accruing after the assign-
ment. The court based its holding on chapter 98 of
the Laws of 1805 which enabled the grantees of rever-
sions to take advantage of the condition to be per-
formed by the lessees and which also provided that it
applied to grants or leases in fee reserving rents as
well as to leases for life or years.
Anson Bingham, counsel for the appellant, con-
tended that a reversion was necessary to constitute
the relation of landlord and tenant and later in his
treatise on the Law of Real Property, he discusses
this question at length. His comments are interesting
as a matter of history as they show the confusion
which existed in relation to this subject.
Mr. Bingham says that in a more recent case, Vcm
Rensselaer v. Read^ 26 N. Y. 563, the same court
declared it to be a settled proposition that, since the
passing of the act of 1787, concerning tenures, it has
not been possible to create any new tenures in this
state upon conveyances in fee. See, also, V(m Rens-
selaer V. Dennison, 35 N. Y. 393.
It must, therefore, be regarded as the settled law
of the state that a feudal lord, in other words, the
lord of an estate in fee, does not exist in the state,
except as that position is represented by the state in
its sovereign capacity. It may indeed be truly re-
marked, that no other point of the law has ever been,
in so short a time, so often, so expressly, so uniformly
and so decisively pronounced by any one court as
that point has been. Each successive decision, from
DePeyster v. Michael, in 1852, down to Van Rensselaer
v. Dennison, in 1866, has been more emphatic than its
inamediate predecessor. The case last named has left
that point so expressly and so fully pronounced, that
no other decision can ever make it more distinct and
emphatic.
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618 Ejlvanaugh v. Cohoes Power & Ljght Corp.
Suprone Court, March, 1921. [Vol. 114.
But what makes the decisions referred to particu-
larly worthy of comment, is the fact that, excepting
the case first named, while they have pronounced the
law in favor of one party, they have pronounced the
judgment of the court in favor of the other party. In
the DePeyster case, they conformed the judgment to
the law as they pronounced it. In tiie other cases,
they decide the law one way and give judgment the
other.
In Van Rensselaer v. Read, 26 N. Y. 558, it was held
that the assignee of such a rent might maintain an
action on the covenant at common law, irrespective of
the statute of 1805. In the course of the opinion in
this case it is intimated that the relation of landlord
and tenant is created between the parties to a lease in
fee reserving a rent.
In Hosford v. Ballard, 39 N. Y. 147, it appeared
that the plaintiff brought an action of ejectment to
recover possession of lands held by the defendant
under grant in fee reserving rent. The court held first
that the title of the plaintiff was sufficiently shown,
and second that the plaintiff was entitled to recover
without a demand of the rent. On the second ques-
tion it was argued before the court that the provisions
of 2 Revised Statutes, part III, chapter 8, title 9, arti-
cle 2, section 1, which dispensed with the necessity of
the demand, did not apply, for the reason that the
plaintiff was not a landlord and defendant was not a
tenant.
The court said: ** This is an erroneous restriction
of the meaning of the terms ' landlord and tenant.'
One who holds. lands by any kind of title, whether for
years, for life, or in fee, is tenant, and he of whom
land is held subject to the rendering or payment of
rent or service is landlord. The cases which hold that
since the act of 1787 concerning tenures no feudal ten-
Kavanaugh v. Cohobs Power & L:
Misc.] Supreme Court, March, 192]
ure can be created in this State do nc
statute so highly remedial should be
application to leases for a term or for
evil it was intended to remedy called
tion wherever rent was reserved and 1
tress and of re-entry existed."
In Van Rensselaer v. Dennison, 35
court held that conveyance in fee re
operated as an assignment and not as i
it left neither any reversion or possibi
in the grantor and that since 1787 it hi
sible to create a feudal tenure in this
sequently none of the peculiar incident;
attached to an estate granted by
another.
In Cruger v. McLaury, 41 N. Y. 219
action of ejectment to recover possess:
vided one-sixth part of a lot held undei
reserving a rent with a condition of r
of non-payment, the plaintiff claimed
one of six children, the heirs of the ow:
charge. The court held that she mig
undivided one-sixth part of the premi
is not perfectly clear upon just wha
court arrived at its conclusion, but a c
of the opinion seems to indicate 1
assumed that the relation of landlor
existed between the parties and invokec
by the demise of the landlord, leaving
the rent becomes severed and each hei
tain an action upon the covenant to rec<
of the rent due him.
In Saimders v. Hanes, 44 N. Y. 353,
as to the title to a mill seat situate on fi
The majority of the court held that the
veyed a fee with reservation of the ren1
620 KJiVANAUGH V. COHOES POWBB & LiGHT CORP.
Supreme Court, March, 1921. [Vol.114.
concurred in the result but placed his holding upon
other grounds than those announced by the -majority
of the court. He held that the indenture in question
conveyed a life estate to the grantee subject to the
pajment of rent and that the heirs of the grantee who
continued to hold the mill seat and pay the rent estab-
lished a claim of adverse possession. He also held
that the rule that the relation of landlord and tenant
establishes an allegiance by the tenant to his landlord,
and prohibits the tenant from denying his landlord's
title, did not conflict with the right of the defendant
to interpose the defense of his adverse possession. He
based this ruling upon the fact that the original entry
was for the life of the grantee subject to the rent and
that after his death the defendant and those under
whom he claimed for a space of over fifty years,
claimed an absolute title to the mill seat, subject to
the precise allegiance under which the life tenant
entered and that as the defendant or those under
whom he claimed continued to hold the property
under the same terms as the life tenant and the plain-
tiffs had acquiesced in it and received the rent, it jus-
tified the presumption that the character of the title
had been changed to accord with what one claimed
and the other by lapse of time had conceded.
In Central Bank of Troy v. Heydorn, 48 N. Y. 260,
it appeared that the plaintiff commenced an action to
recover rent for certain premises xmder conveyance
in fee, reserving a rent charge. It was held that, not-
withstanding the strict relation of landlord and tenant
did not exist between the parties, the assignee of the
rent was entitled to recover the rent due and unpaid
for the twenty years preceding the action as the cov-
enant sued upon remained in the x>ossession of the
plaintiff uncancelled and was produced and read in
evidence ; that while the law presumed payment prior
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Kavanaugh v. Cohoes Power & Light Corp, 621
Misc.] Supreme Court, March, 1921.
to the twenty years there was no presumption even
upon proof of non-payment of the rent for the period
of sixty-three years before the eonmaencement of the
action that the rents had been extinguished and the
covenant released.
To the same effect was the holding in the case of
Lyon V. OdeU, 65 N. Y. 28. In this case the court
assumed that the relation of landlord and tenant
existed between the parties.
Bradt v. Church, 110 N. Y. 537, was an action of
ejectment. It appeared that lands were covered by a
Van Rensselaer lease made in 1794; that defendant
Church succeeded to the interest of the lessor and in
1881 obtained possession under a judgment in an
action of ejectment brought under a right reserved in
the lease to re-enter for non-payment of rent against
one in possession as tenant of Bradt, the plaintiff.
Bradt, the plaintiff, was not a party to the former
action of ejectment. It was held that while the judg-
ment in the former action was not conclusive upon
Bradt, the plaintiff, who was not a party to that action
as to the averments in the complain therein, yet it was
against the person then in actual occupation and that
the defendant Church's entry thereunder was law-
ful, and enabled him to defend his title and possession
against the plaintiff's claim. The plaintiff, Bradt,
claimed title under a deed of release and quit-claim
made in 1863, with prior possession in the grantors
from 1850. No proof was given as to the sources of
the title of said grantors. It was held that in the
absence of proof to the contrary the occupation of
plaintiff's grantors w^as controlled by the presumption
that when the relation of landlord and tenant is once
established it attaches to all who may succeed to the
possession under the tenant; that plaintiff's deed did
not necessarily imply a title hostile to that of the land-
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622 Kavanaugh v. Cohoes Power & Light Corp*
Supreme Court, March, 1921. [Vol.114.
lord and that, therefore, he failed to show title
superior to that of the defendant.
This case appears to be a direct and positive
authority for the proposition that for the purpose of
determination of the existence of adverse possession,
the relationship of the parties to the perpetual lease
is considered to be that of landlord and tenant. It is
difficult to see how this decision can be sustained on
any other theory.
Church V. Shvltes, 4 App. Div. 378, was an action
of ejectment brought in this county. It appeared that
the land in question had been leased by a perpetual
lease subject to the payment of a rent charge. It was
held that the relation of landlord and tenant existed
between the parties to the lease and their successors
in title, and that the provisions of section 373 of the
Code of Civil Procedure applied in determining the
question of adverse possession.
It thus appears that the authorities on the subject
in this country seem to lack support in the old com-
mon law, and it is not surpising that confusion should
have arisen in the mind of Mr. Bingham leading him
to make the statement which I have quoted above, to
the effect that while the courts had pronounced the
law in favor of one party, they had pronounced the
judgment of the court in favor of the other party.
In the light of the cases decided subsequent to Vtm
Rensselaer v. Hays, supra, however, this seeming
incongruity disappears. Consider for instance the
opinion of Judge Gray in Central Bank of Troy v.
Heydom, supra. He states that the strict relation of
landlord and tenant does not exist between the par-
ties to a perpetual lease. In Lyon v. OdeU, supra, the
court says that where the relation of landlord and
tenant is once established under a sealed lease the
mere circumstance that the landlord has not demanded
Kavanaugh v. Cohoes Power & Li<
Hise.] Snpreme Court, March, 1921.
the rent cannot justify the presumpti
extinguished his right by a conveyanc
citing with approval Central Bank o]
dom. These statements are not in
the one hand the strict relation of lai
ant, that is to &ay, the relation of land
arising by operation of law as a re
tenure, is not created by such a con^
the other hand, as a matter of agreemi
parties to the sealed lease the conventi
landlord and tenant is constituted,
day and age under our system of tenu:
to see how the relation of landlord an<
other than a mere conventional one.
In 1787, the legislature declared wh
been the law of the colony that all tenu:
into free and common socqge and all i
dents thereto, except rents certain, i
tresses, were abolished. It was also d
grants theretofore or thereafter made
of the state should be allodial and not
Feb. 20, 1787. The latter provision wai
the Bevised Statutes were enacted ^
tenures and all their incidents were ab
all rents and services certain. All gra
after declared to be allodial. The abo]
tenures and their incidents effectually
the strict relation of landlord and tena
only arise in connection with some
Thereafter by convention of the partieE
could be constituted resembling in i
particulars that existing under a f euda
we, in these times, invariably refer to
tional relation of landlord and tenan
tally, the contrast between the strict r<
conventional relation is sharp. The cl
624 Ejlvanaugh v. Cohoes Power & Light Corp.
Supreme Court, March, 1921. [Vol. 114.
one to the other, however, has come about so gradu-
ally and so naturally that it is confusing to attempt
to trace it.
It seems to me that the Court of Appeals in the
cases which I have reviewed has consistently adhered
to the distinction which I have indicated, although the
court does not seem to have announced it in so many
words. It was the failure of Mr. Bingham to note the
distinction which lead him to assert that the Court of
Appeals in the Vcm Rensselaer cases held the law in
favor of one party but gave judgment in favor of the
other. He overlooked the fact that the court was deal-
ing with a conventional relation and not with the
feudal relation of landlord and tenant which, of
course, he could not conceive where ther^ was no
reversion in the grantor xmder the lease.
I have thus reached the conclusion that the instru-
ments of 1849 and 1866 constituted the conventional
relationship of landlord and tenant, notwithstanding
the fact that at the common law there was no such
thing as a perpetual lease ; and I have determined that
even though the rights of the tenant were almost as
extensive as those of an owner, nevertheless, the obli-
gations with reference to the water-power were
always dormant.
The plaintiff here may contend that the additional
Avater-power, which he claims, is not included within
the terms of the lease, but in addition thereto, and,
therefore, the relation created under the lease could
not affect in any way his rights in the additional
water-power. It is undoubtedly true that a tenant of
one piece of land may acquire title by adverse posses-
sion against his landlord as to another piece of unre-
lated land. Where, however, additional land is
acquired by the tenant for the more profitable enjoy-
ment of the demised premises and physically con-
Digitized by
Google
Ejlvanaugh v. Cohobs Power & Light Corp^ 625
Misc.] Supreme Court^ March^ 1921.
nected therewith, the rule would be otherwise. The
same principle should apply to an easement. Bedlow
V. New York Floating Dry Dock Co., 112 N. Y. 262,
283. The use by any of the company's lessees of
water-power in excess of the quantity specified in its
lease under the facts in this case could never give rise
to a prescriptive right.
Moreover, assuming that a prescriptive right might
arise, I am not convinced by the proofs that the use
of excess water in this case was ever open, notorious
or adverse. The water was carried to the premises of
the user in a penstock under ground and passed
through no measuring device. The flow of water
through a penstock of a lessee in excess of the quan-
tity provided for in his lease was not necessarily
detrimental to the .interests of the company, in that
such flow served to maintain the required level in the
next lower canal and such flow would have to be pro-
vided by the company through its spillways had it not
passed through the penstock of the lessee. Hence, the
use was not adverse or detrimental to the company.
The proof fails to show that the company had knowl-
edge or ought to have known the quantity being used.
It was obliged to rely upon the integrity of the user,
that he would observe the covenants of the lease not
to use more than provided for therein except as the
company might have determined the quantity being
used through a scientific device or computation requir-
ing technical knowledge for the determination. There
is no evidence that the company had any knowledge
of the quantity of water being used until the measure-
ment of 1910. Mr. Adams who had been in charge of
the premises since 1886 testified that he never knew
the quantity of water that was being used until noti-
fied of the results of this measurement of 1910, and
never knew that he was using prior to that time any
40
Digiti
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626 Kavanaugh v. Cohoes Power & Light Corp.
Supreme Court, March, 1921. [Vol.114.
quantity in excess of the quantity specified in the
leases. He testified that he never claimed a right to
use water-power in excess of that quantity.
The case of Union Bag & Paper Co. v. AUen
Brothers^ Co., 107 App. Div. 529, cited by the plain-
tiff, is not applicable to this case. That was a case
where there was a written agreement between the par-
ties which was ambiguous in reference to the amount
of water each was entitled to and the court received
evidence of the practical construction of the agree-
ment put upon it by the parties by their operation
under it for a series of years and construed it in the
light of such practical construction.
In taking up for discussion the rights which existed
under these ancient grants, together with the history
of the relations between the defendant company and
Adams, I have given the plaintiff the benefit of the
doubt as to whether the written agreement of October
16, 1916, might be in fact ambiguous in reference to
the amount of water to which these premises were
entitled. But even if we construed the language of
the contract of October 16, 1916, as merely descriptive
of the kind of power to be displaced instead of stating
the limits as well, what foundation is there for the
plantiff to claim the additional eight and eighty-two
one-hundredths miU-power, if Adams never had a
right to it, never claimed it, never paid for it, and did
have it offered to him in electrical equivalent in the
proposed contract for electrical power, which he
received shortly prior to making the agreement of
October 16, 1916 f Under such circumstances there
should be no implication that it was the intention of
the parties to include it. On the contrary the situa-
tion which had existed between those parties would
justify the conclusion that an intent to include the
additional eight and leighty-two one-hundredths mill-
Digiti
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KAVANAtJGH V. CoHOES PoWBR & LiGHT CoRP. 627
Misc.] Supreme Court, March, 1921.
power should have been clearly expressed in order to
warrant such an interpretation.
My consideration of the history of the relations
between the defendant company and Adams and their
predecessors in title, leads me to the conclusion that
the only fair interpretation of the contract of October
16, 1916, is that it was intended to limit the mill-power
to six mill-power.
Having reached that conclusion I fail to see how
estoppel or prescription has anything to do with the
case. What the Cohoes Company did and said before
making that contract was merged in it. I have consid-
ered such evidence, however, only for the purpose of
interpreting its provisions upon the theory of a pos-
sible ambiguity. I have reached the conclusion that
there is no ambiguity to be resolved against the com-
pany. If Adams had never had a right to eruch addi-
tional power, nor even a right to expect it by virtue
of any compromising act or word of the company, any
presumption that might have favored him and his
assignee in the interpretation of the contract, due to
the fact that it was drawn by the company's president,
would not arise. The agreement was not a harsh one,
but a just if not a generous proposal and one entitled
to be construed in accordance with its plain terms
rather than enlarged by implication.
If the contract of October, 1916, had not been made
surely plaintiff would not have a cause of action for
any of the relief demanded in his complaint, for with-
out that contract there was no obligation on the
defendant to make an electrical contract as to these
premises. If the plaintiff did not see the contract, he
cannot shield himself behind the refusal of Adams to
show it to him. He assumed the risk and took his
chances as to its wording. He could have taken up
the matter with the company before it was too late.
Digiti
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Supreme Court, March, 1921. [Vol.114.
He knew that a contract had been made. The proof
shows that since the fire in 1913, the premises enjoyed
no power of any kind and the Cohoes Company had
constructed a permanent concrete wall shutting off
the water from the premises, both of which should
have put the plaintiff upon inquiry as to what power
rights, if any, the premises continued to enjoy. Mr.
Adams says the plaintiff did call him on the telephone,
that he had agreed to purchase the premises and said
that he thought there were fourteen mill-power when
he offered to buy, because he had seen some memo-
randum on some other lease. Mr. Adams says he told
him he did not know anything about that and that the
plaintiff said: ** If there is only six, why we will call
the sale off,^' and Adams said: **A11 right.'' Adams
said to the plaintiff at the time of the final closing of
the transaction with the plaintiff that he would only
guarantee six mill-power but if there was any more
than that the plaintiff was certainly entitled to it as
he was selling the plaintiff everything the Adams'
estate had. Adams says: ** I repeated a number of
times that all I could guarantee was six.*' This tes-
timony of Adams is uncontradicted.
The plaintiff also talked with Mr. Wertime in refer-
ence to the mill-power and Mr. Wertime swears that
he told plaintiff that Mr. Adams had made an agree-
ment with the company by which the premises were
limited to six mill-power. The testimony of Mr.
Wertime is not directly contradicted. The plaintiff
simply says that Wertime told him that if plaintiff
would sell Wertime the land he would be sure to get
the plaintiff the fourteen and eighty-two one-hun-
dredths mill-power.
It is not claimed that the plaintiff ever saw any
recital as to the number of mill-power connected with
these premises except in the schedule attached to the
so-called Benson contract, of which the plaintiff took
Kavanaugh v. Cohoes Poweb & Ijight Corp. 629
Misc.] Supreme Court, March, 1921.
an assignment and in the proposed electrical contract
relating to the premises in question, which the plain-
tiff received from Adams at the time of his purchase.
The contract had been submitted to Adams by the
company but he had not signed it. In that contract it
was plainly shown that the electric curr^t to be fur-
nished was the, equivalent of six millrpower and the
rental to be paid was $1,200. The plaintiff says: ** I
just saw the front page of it and it said 14.82 mill
power.'' The plaintiff knew that the rate was $200
per mill-power. He admits knowing that $1,200 would
not represent the fourteen and eighty-two one-hun-
dredths mill-power because he already was paying on
another lease at the rate of $200 per mill-power. He
had heard that the Adams' estate had never paid more
than $1,200.
The proposed electrical contract handed to him by
Adams, in the same paragraph where it mentioned the
figure fourteen and eighty-two one-hundredths con-
tained the statement that the additional water-power
to the amount of eight and eighty-two one-hundredths
mill-power was to be at an additional yearly rental of
**$ .00."
The plaintiff had no right to rely upon any declara-
tion in the schedule, nor the figure 14.82 on the front
page which was inconsistent with the plain terms of
the contract as a whole, which he could have discovered
if he had exercised any care in reading it.
Moreover, the schedule of proposed indentured
grantees was prepared for a certain and definite pur-
pose as set forth in the contracts to which it was
attached. It is a statement concerning persons who
may secure rights in the future for electricity which
must be secured by March 13, 1917. One who failed to
sign before that date would not be an indentured
grantee entitled to the water-power set forth in the
schedule. If he failed to sign by that date, the fact that
Digiti
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630 Kavanaugh v. Cohoes Power & Light Corp.
Supreme Court, March, 1921. [Vol. 114
his name might continue to be upon the schedule was
thereafter of no value to him whatsoever. No elec-
trical contract was signed for the Adams' premises
within the date specified and thus the schedule became
ineffective for any purpose in respect to these prem-
ises. This was a fact with knowledge of which the
plaintiff was charged because it was plainly stated in
both the Benson contract and the contract handed to
him by Mr. Adams. The company cannot be bound by
any admission beyond the conditions for which the
admission was expressly made.
The proposed electrical contract for the premises in
question was not capable of the construction placed
upon it by the plaintiff and his failure to carefully read
it ought not to accrue to his advantage by way of
estoppel against the company.
So we get back to the plain terms of the agreement
of October 16, 1916, which I have already interpreted.
If that agreement was for six mill-power how can the
company by estoppel be compelled to give the plaintiff
the benefit of it, even if sufficient facts had been proved
to justify the conclusion that the company had made
a misrepresentation with full knowledge of the fact
contained in such contract of October, 1916, and that
the plaintiff in ignorance of the facts had acted upon
such misrepresentation?
The company and Adams had a right to adjust their
affairs so as to provide for the payment of the back
rent and the execution of the electrical contract by
entering into the agreement of October, 1916. When
that contract was executed, the rights of the parties
were merged in it and the parties were bound accord-
ing to its plain terms. The rights of Adams did not
suffer any violence when interpreted in accordance
with such plain terms. The plaintiff was bound by it
as the assignee of Adams and the hands of the com-
Kavanaugh v. Cohoes Poweb & Light Corp. 631
Aliso.] Supreme Court, March, 1921.
pany were as eflfectually tied as were those of Adams
and the plaintiflf. Any extension of the terms by the
company thereafter directly or by estoppel wonld con-
stitute a gratuity and a gratuity would not sustain the
company in granting a rate at less than those fixed by
the schedules filed by it with the public service commis-
sion. The case might be different if there was an
ambiguity in the contract which was resolved against
the company by the court. But there is no such
ambiguity here, as I have held.
All of the above considerations must lead to the
conclusion that the plaintiff's complaint should be dis-
missed. It remains only to consider the counterclaim
of the defendant and the relief therein sought.
On the 13th day of October, 1917, Adams paid the
rent with the statement that he had disposed of his
interests in the property to the plaintiff. The Cohoes
Company in accepting that rent had the right to
assume that the Adams estate had complied with the
condition in the agreement of October, 1916, as to the
making of an electrical contract. The Cohoes Company
accepted the rent upon that implied representation.
There was no consideration for the agreement, except
the mutual promises. The Adams estate having failed
to pay the rent for three years prior to the execution
of the agreement there was the absolute right of
re-entry under the terms of the instruments of 1849
and 1866 and under the authorities which have been
reviewed by me. The Cohoes Company only agreed
that it should not exercise that right for one year, upon
certain conditions, failure to perform which permitted
the Cohoes Company to demand a surrender and can-
cellation of the two indentures of lease, upon paying
the sum of $1,400 and upon the waiver of all rents in
arrears, to the Adams estate. The Adams estate
failed to comply with their condition. There was no
assumption of the obligation of this agreement in the
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632 E^AVANAUGH V. COHOES PoWBB & LiGHT CORP.
Supreme Court, March, 1921. [Vol.114.
transfer by the Adams estate to the plaintiff, and the
plaintiff never did agree, either with Adams or the
Cohoes Company, to sign a contract for the substitu-
tion of electric power for the six mill-power contained
in the two indentures of lease recited in the agreement.
The conditions, therefore, upon which the Cohoes Com-
pany agreed to waive the default in the payment of
rent and to accept the purchase by the plaintiff of the
interest of the Adams estate in the property, were not
complied with, directly or indirectly. The waiver never
was complete. The right of re-entry was to be waived
and released only upon the terms stated in the agree-
ment and as these terms were not complied with, the
right of re-entry was never waived or released. Such
right of re-entry existed on October 16, 1916, and has
continued ever since and now exists because the con-
dition upon which the company was to waive its right
has never been complied with and it is now too late
to comply with it and it was too late after October 16,
1917.
On the trial the defendant offered to pay into court
the rent paid to it by Mr. Adams on October 13, 1917,
and also the $1,400 provided for in the agreement, with
interest on both sums.
Under section 1504 of the Code of Civil Procedure
the defendant under the facts established here could
maintain an action against the plaintiff when this
action was brought, and under its counterclaim in this
action it is entitled to judgment, cancelling and
annulling the leases according to the terms and con-
ditions of the October, 1916, agreement and restoring
it to the possession of the demised premises.
The defendant is entitled to judgment dismissing
the complaint and for affirmative judgment on its coun-
terclaim in accordance with this decision, together
with costs.
Judgment accordingly.
Matter of Sebley.
Misc.] Supreme Court, Mdrcb, 1921.
Matter of the Application of Chables ]
Sheriff of the County of Seneca, N. Y
of Mandamus to George T. Purceli
Clerk of Said County.
(Supreme Court, Seneca Special Term, Man
Btatates — repeal of Laws of 1822, chap. 127, l;
board of snpervisors of Seneca county — ji
Oonnty Law, § 12(14).
Mandamus — when motion for writ of, denied — i
Seneca connty — jurors.
The board of supervisors of Seneca county I
tion 12(14) of the County Law had plenary po'
resolution of August 30, 1920, abolishing th<i
tricts into which by chapter 127 of the La^
county was divided, and providing that therea
should consist of a single jury district.
People V. Johnson, 110 N. Y. 134, distinguisi
The repeal of the said statute of 1822 was a
by the County Law but by the resolution o
supervisors on Aug^ist 30, 1920, which has th<
a statute passed by the legislature itself.
A writ of mandamus conmianding the county
county to recognize as proper jurors those wh
drawn from the north district jury boxes, to
drawn from the combined ballots, and to keep ii
the ballots bearing the names of grand juroi
jurors for the north and south districts, resp<
denied.
Application for a writ of mandamus,
emptory or alternative, commanding the t
county clerk, among other things, to use
term of the Supreme Court, to be held ii
of Seneca on the first Monday of March, 1
lists of names of grand and trial jurors
may be drawn from the north jury disi
634 Matter of Sebley.
Supreme Court, March, 1921. [Vol.114.
county and to disregard the lists of jurors drawn from
the entire county.
John M. Sutton, for applicant.
Harris, Beach, Harris & Matson (David C. Munson,
of counsel), for county clerk.
William S. MacDonald, for board of supervisors of
Seneca county.
Stephens, J. At the opening of the argument, the
county clerk announced through his counsel that he is
an indifferent party to the proceeding and would yield
submissively without contention to whatever direc-
tions might be given in the premises.
The board of supervisors, however, appeared by
counsel in defense of its action that has given cause for
this controversy.
This application challenges the validity of a resolu-
tion of the board' of supervisors of Seneca county
passed August 30, 1920, abolishing the two jury dis-
tricts into which the county was divided by chapter 127
of the Laws of 1822 and providing that thereafter the
county shall consist of a single jury district ; the reso-
lution further provided for holding all trial terms of
all courts of record at the courthouse in the village of
Waterloo and a method by which the existing ballots
of grand and trial jurors respectively of the two jury
districts should be combined and that such jurors
should thereafter be drawn from the entire body of the
county.
Two lists of grand jurors and two lists of trial
jurors to attend a term of the Supreme Court,
appointed to be held at the courthouse in Waterloo on
March 7, 1921, have been prepared by the county clerk;
one list of grand jurors and one list of trial jurors
Digiti
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Matter of Seeley. 635
Misc.] Sapreme Court, March, 1921.
consists of names drawn from the north jury district
boxes, and another list of grand jurors and one of trial
jurors consists of names drawn from the combined bal-
lots of the two jury districts ; it is the position of the
applicant here that the persons whose names were
drawn from the north jury district constitute the only
legal grand and trial jury respectively.
It is necessary, therefore, to determine whether or
not the board of sui)ervisor8 had authority to consoli-
date the two existing jury districts into one and our
inquiry leads to an examination into the origin of the
two shire system that has prevailed in Seneca county
for nearly a century and the sources of the power
which the board of supervisors claim justly to have
used in abrogating it.
The county of Seneca was carved out of the county
of Cayuga by chapter 31 of the Laws of 1804 and it
was enacted that the two terms of the Courts of Com-
mon Pleas and General Sessions of the Peace ** shall
be holden at the meeting house on lot number thirty in
the Town of Ovid until further legislative aid in the
premises.*' The sum of $1,000 was authorized to be
raised by taxation to build a courthouse and jail within
a specified area in the town of Ovid, and commission-
ers were named to superintend the building of them;
the legislature in 1805 by chapter 132 of that year
authorized the commissioners to place the buildings
on any part of lot No. 3 not exceeding fifty rods west
of the limits described in the former act, appropriated
$1,000 additional for the purpose, and declared that
it should be lawful for the above mentioned courts to
adjourn the next term of court from the meeting house
to the house of John Seely on lot No. 3 ; more moneys
were later directed to be raised to complete the struc-
tures, $1,500 in 1806 and $2,000 in 1807 (Laws of 1806,
chap. 146; Laws of 1807, chap. 142) ; by the latter act
Digiti
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636 Matter of Seeley.
Supreme Court, March, 1921. [Vol. 114.
the number of terms of court was increased to three
to be held ** at the courthouse, in said county/'
The Eevised Laws of 1813, chapter 65, provides that
the Courts of Common Pleas and General Sessions of
the Peace should be held in the county of Seneca at
the courthouse of said county on the second Tuesday
of May and on the first Tuesday of October and
February.
A courthouse and jail were authorized to be built in
the village of Waterloo in the town of Junius by chap-
ter 189 of the Laws of 1817; commissioners were
appointed by that act to superintend the erection of
the buildings and the board of supervisors was required
to raise the sum of $4,000 for the enterprise; it was
further enacted that when the courthouse was suitable
for occupancy it should be the duty of the courts
to adjourn from the courthouse at Ovid to the one in
Waterloo, and that prisoners should be removed from
the jail at the latter place to the new jail when ready
and that the courthouse and jail so to be erected in the
village of Waterloo should thenceforth be the court-
house and jail of the county of Seneca; the board of
supervisors was authorized to dispose of the buildings
at Ovid after the new ones had been constructed in
Waterloo.
We come now to the consideration of the embarrass-
ing statute, chapter 137 of the Laws of 1822.
It was provided in that act that the several courts
thereafter to be held in Seneca county should be held
alternately in the courthouse in the town of Ovid and
the courthouse in the town of Junius and that there
should be two jury districts in the county, the towTis
comprising each being named in the statute ; it was fur-
ther enacted that it shall not be lawful for the super-
visors to sell the courthouse at Ovid or the lot on
which it stands.
Digiti
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Matter of Sbeley. 637
Misc.] Supreme Court, March, 1921.
Many of the statutes referred to have no very vital
relation to our problem but have been mentioned in
order to emphasize that we have thus far been dealing
with the period in the history of the state when the
legislature was concerned with the minute details of
county government and regulation of county business ;
the exercise of these governmental functions was
transferred from the state legislature to the local
legislative bodies by the Constitution and appropriate
legislation under it; by the Constitution of 1846,
amended in 1874, the legislature was deprived of the
power that it had theretofore exercised in this
respect and it was prohibited from passing any pri-
vate or local bill, ** Locating or changing county
seats,'' or ** Selecting, drawing, summoning, or
empaneling, grand or petit jurors." Const. 1846,
as amd. 1874, art. Ill, § 18. In our present con-
stitution the same provisions are found at the like
numbered article and section.
When the right to regulate local municipal govern-
ments in certain specified particulars was taken away
from the legislature by the constitutional provisions
the same sovereign power that deprived it of that
right imposed upon it the duty to confer upon the
boards of supervisors of the several counties of the
state, by general laws, such further powers of local
legislation and administration as the legislature may
from time to time prescribe or deem expedient. Const.
1846, art HI, § 17 ; Amendt. 1874, art. Ill, § 23 ; Const.
1894, art. Hi, § 27.
Pursuant to the mandate of the Constitution the
legislature has from time to time conferred such fur-
ther powers upon the boards of supervisors ; among
other general powers thus conferred is that ** To make
one or more jury districts and to make such regula-
tions in respect to the holding of terms of courts as
Digiti
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638 Matter of Seeley.
Supreme Court, March, 1921. [Vol. 114.
shall be necessary by reason of such change/* County
Law, § 12, subd. 14.
The ancestry of the above quoted extract from the
County Law can be briefly traced; the identical lan-
guage makes its initial appearance in chapter 570,
Laws of 1881, which act apparently contains the first
definite authorization of boards of supervisors to fix
the number of jury districts, and constitutes subdivision
14, section 12 of the County Law of 1892 (chap. 686) ;
a pori;ion of the quoted language ** to make such regu-
lations in respect to the holding of (the) terms of
courts as shall be necessary by reason of such change "
appears, however, in chapter 482, Laws of 1875, not
in any relation to any change in jury districts but in
relation to a change in the location of a county
courthouse.
It is an interesting discovery that the legislature by
chapters 132 and 374 of the:Laws of 1881 changed the
boundaries of the two jury districts in Steuben county
as indicative of the practical interpretation placed by
the legislature upon the constitutional barrier against
local bills for that purpose and that later at the same
session, chapter 570 was passed, conferring authority
upon boards of supervisors to legislate in that
particular.
It is inunaterial, however, for our present purpose
whether the right to make one or more jury districts
in a county resides concurrently in the legislature and
the several boards of supervisors or solely in the
latter bodies, because of constitutional and legislative
provisions; the board of supervisors of Seneca
county has consolidated the former jury districts into
one by appropriate legislation and its action must be
respected, providing it had the requisite authority to
do so.
The authority of the board of supervisors in this
Digiti
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Matter of Seeley. 639
Misc.] Supreme Court, March, 1921.
regard and the validity of their action is questioned
solely upon the ground that the act of 1822 has never
been repealed and is, therefore, yet controlling.
The counsel for the applicant concedes in his brief
that if the act of 1821 had been or should be repealed
by the legislature the board of supervisors would have
had or would have ample authority for doing as it has
done; the legislature has, however, conferred the
power upon the board of supervisors ** to make one
or more jury districts;'' it would not be claimed, suc-
cessfully at any rate, if the legislature had the power
and should exercise it doing precisely what the board
of supervisors has done, that such action would not
operate as a repeal of the statute of 1822; this is a
necessary conclusion, otherwise the act of 1817 would
still be operative for it too is unrepealed except by the
circumstances that the act of 1822 is the later enactment
covering the same subject. Matter of Troy Press Co.,
94 App. Div. 514; affd., without opinion, 179 N. T. 529.
An act passed by the board of supervisors pursuant
to authority delegated or conferred by the legislature
has the same force as a statute passed by the legis-
lature itself. Village of Carthage v. Frederick, 122
N. Y. 268; Crayton v. Larahee, 220 id. 493.
It seems to me of little importance, therefore,
whether the legislation superseding the earlier statute
was enacted by the legislature or by another legis-
lative agency duly authorized to enact it.
The applicant invokes the familiar rule that a special
law is not repealed by a general one ; assuming for the
moment that this rule is pertinent to our present
inquiry, nevertheless, the ultimate test after all rules
of statutory interpretation have been applied and to
which all rules must yield is the legislative intent; the
search for it leads below the surface of verbal
expression and piercing all disguises goes straight to
Digiti
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640 Matter of Seeley.
Supreme Court, March, 1921. [Vol. 114.
the purpose of the law makers, aided hy formulated
rules when they serve, bound by no rule that obstructs
the discovery of the rational genuine intent of the
legislature. Matter of Dohson, 146 N. T. 357.
It is scarcely conceivable that the legislature after
granting to the county legislative bodies authority to
make jury districts intended that the statute of 1822
should retain its vitality ; an examination of the legis-
lation concerning kindred conditions in the county
of Steuben lends support to this conclusion; in 1853
that county was divided into two jury districts (Laws
of 1853, chap. 578) and in the following year courts
were authorized to be held alternately in Bath and
Coming (Laws of 1854, chap. 98) ; three separate acts
were afterwards passed changing the boundaries of
the jury districts (Laws of 1868, chap. 191; Laws of
1881, chaps. 132, 374) ; each of these acts, except the
last one, was abrogated by the enactment of its suc-
cessor; as above stated at the same session of the
legislature, at which chapters 132 and 374 of the Laws
of 1881 were passed, a general law was enacted giving
power to boards of supervisors to make the jury dis-
tricts ; chapter 374 of the Laws of 1881 has never been
otherwise repealed by the legislature ; however, in 1904
the board of supervisors made three jury districts in
the county instead of the two then existing ; this action
was under scrutiny in Lyon v. Board of Supervisors,
115 App. Div. 193, though the precise question pre-
sented here was not involved there, except incidentally.
We are not, however, required in the last analysis
to regard or to disregard the rule to which reference
has been made ; the repeal of the act of 1822 was accom-
plished not by the general County Law but by the
special law enacted by the board of supervisors.
I conclude, therefore, that the board of supervisors
of Seneca county had plenary power to pass the enact-
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Matter of Cash. 641
Misc.] Surrogate's Court, New York County, March, 1921.
ment consolidating the two jury districts into one by
virtue of section 12, subdivision 14, of the County
Law.
There is nothing hostile to this conclusion in People
V. Johnson, 110 N. Y. 134; at the time of that decision
in 1888 the act of 1822 was still operative though the
right to prescribe the number of jury districts resided
in the county legislature but had not then been
exercised.
The only other statutes to which my attention has
been called or my own researches have disclosed relat-
ing to Seneca county and bearing upon this investiga-
tion but too remotely to merit more than a mention are
Eevised Statutes of 1829, part III, chapter I, title V,
section 20, subdivision 40, as amended by chapter 65,
Laws of 1852.
I am conscious that the decision rendered upon this
application does not entirely clarify the situation, for
the effect of this determination is simply a denial of
a direction to the county clerk to recognize as proper
jurors those whose names were drawn from the north
jury district boxes, to cancel the lists drawn from the
combined ballots, and to keep in separate boxes the
ballots bearing the names of grand jurors and of trial
jurors for the north and south districts respectively.
The application is denied.
Application denied.
Matter of the Estate of Mary B. Cash, Deceased.
(Surrogate's Court, New York County, Mazeh, 1921.)
Traaisfer tax — when corporate tmstee not exempt under section
221 of the Tax Law.
The Title Guarantee and Trust Company is not in any sense
or for any purpose a corporation belonging to any of the
41
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642 Matter of Cash.
Surrogate's Court, New York County, March, 1921. [Vol. 114.
classes mentioned in section 221 of the Tax Law, and a bequest
to said company, as trustee, to expend the income for an ob-
viously educational and charitable purpose, is subject to a
transfer tax.
Appeal from an order fixing the transfer tax.
Harold Swain (Harold Swain, Benjamin (J. Bain
and Ellis Q. Kinkead, of counsel), for executor.
Lafayette B. Gleason (Schuyler C. Carlton, of
counsel), for state comptroller.
CoHALAN, S. The executor of decedent's estate
appeals from the order fixing the transfer tax on the
ground that a tax has been assessed on the bequest of
a portion of the residuary estate to the Title Guar-
antee and Trust Company, as trustee, to expend the
income ** in educating the poor but ambitious young
men over the age of fourteen years in the City of New
York, in any trade, which such men may desire to
acquire, and who may be pursuing such trade educa-
tion in the trade school located at First avenue,
between Sixty-seventh and Sixty-eighth Streets, in the
City of New York.''
The purpose of the gift is obviously educational and
charitable. Section 221 of the Tax Law grants exemp-
tions from the tranfer tax to bequests to certain classes
of corporations therein enumerated.
The character of a corporation is determined by its
charter. Matter of WUte, 118 App. Div. 869. The
articles of incorporation of the Title Guarantee and
Trust Company, in so far as they are disclosed by the
record, do not show that the company is in any sense
or for any purpose a corporation belonging to any of
the classes mentioned in section 221. In Matter of
Albright, 93 Misc. Rep. 388; Matter of 8a/unders, 77
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Matteb of Tymeson. 643
Misc.] Surrogate's Courts Westchester County, March, 1921.
id. 54, and Matter of Guiteras, 113 id. 196, relied on
by the appellant, the transfers were to mnnidpal
corporations and were held to be exempt from the
tax because the mnnicipalities were authorized by their
respective charters or acts incorporating them to
receive and distribute funds for charitable and educa-
tional purposes and to exercise functions similar in
character to those performed by purely educational
and charitable corporations.
The right possessed by the company to act in a
fiduciary capacity does not relieve bequests to it from
the imposition of the tax. A corporate trustee is in no
different situation in this respect than an individual
trustee, a bequest to whom for charitable or educa-
tional purposes is subject to the transfer tax. Matter
of Robinson, 80 Misc. Rep. 458; affd., 212 N. T. 548.
The report of the appraiser is correct, and the order
fixing tax is affirmed.
Order affirmed. i
Matter of the Contested Probate of the Last Will and
Testament of Eugene Tymeson, Deceased.
(Surrogate's Court, Westchester County, March, 1921.)
Verdict — when the court may direct a verdict upon a contested
probate — Surrogates' Oourts — trial — evidence — wiUs.
It is only when a verdict rendered upon a contested probate
must be set aside as unsupported by the evidence that the
court may direct a verdict.
Where a will was executed under the supervision of a lawyer,
the presumption is that the formalities of the Statute of Wills
were oomplied with, and when the proof is ample to indicate
due execution that issue may be taken from the jury and the
surrogate may direct a verdict in favor of the will on that
issue.
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644 Matter of Tymeson.
Surrogate's Court, Westchester County, March, 1921. [Vol. 114.
Where the contestants failed to give evidence of direct press-
ure upon the testator or produce evidence which will support
a verdict that the will was a product of undue influence, coer-
cion, duress, fraud or restraint of any kind or character, the
consideration of such issues will be withdrawn from the jury
and a verdict directed in favor of the will.
Where the only inference to be drawn from all the evidence,
by reasonably minded men, is that the testator when he made his
will possessed the mental capacity required by law, no question
of fact is left for the jury, and as it would have been the
duty of the court to set aside a verdict against the will, as
against the evidence, a verdict in favor of the will upon that
issue will be directed.
Decision on motion to direct a verdict.
Mott & McCreedy (Clarence Alexander, of counsel),
for proponent.
Thomas J. O'Neill (J. Ambrose Goodwin, of conn-
sel), for contestants.
Slater, S. At the conclusion of the trial of this
cause, the attorney for the proponent has made a
motion that the court take the issues, as framed by an
order of this court, from the jury and direct a verdict
upon all the issues.
The burden at this time belongs alone to the surro-
gate. It is only when a verdict must be set dside, as
unsupported by the evidence, and not when it may fee
set aside for that reason, when a verdict may be
directed. The issues framed in this contest relate to
the execution of the will of Eugene Tymeson ; the want
of testamentary capacity of the decedent ; and undue
influence exerted over the decedent. The will was
executed under the supervision of h lawyer, and this
alone affords a strong presumption that it was exe-
cuted in compliance with the formal requirements of
the statute. Matter of Cottrell, 95 N. Y. 329, 339;
Matter of Nelson, 141 id. 152. In my judgment, there
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Mattbb of Tymesok. 646
Mise.] Surrogate's Court, Westchester County, Mareh, 1921.
is ample proof upon the record to indicate dne execu-
tion of the will by the formalities required under the
law of wills of the state, and I take from the considera-
tion of the jury this issue, and I direct a verdict upon
this contention of the contestants in favor of the will.
Another issiie i« that of undue influence. Undue
influence is an affirmative assault upon the validity of
a will, and there must appear a moral coercion destruc-
tive of free agency. The elements of undue influence
are motive, opportunity, and the act itself, and the
exercise of the act upon the testator must be at the
very testamentary act. Mere opjwrtunity to exercise
undue influence, standing alone, is not enough. Cvd-
ney v. Cud/ney, 68 N. Y. 148. No evidence is offered
that it was the work of the chief beneficiary of the
will. A will cannot be avoided because of the influence
of another, unless it appears that the influence exerted
was so potent at the time the will was made as to take
away and overcome the power of the testator at that
time to act freely and upon his own volition. The evi-
dence adduced in support of undue influence fails to
meet the requirements as laid down in Matter of Caf-
frey, 95 Misc. Rep. 466; Matter of Powers, 176 App.
Div. 455; Matter of Fleischmcmn, 176 id. 785; Matter
of Ruef, 180 id. 203; affd., 223 N. Y. 582; Burke v.
Burke, 193 App. Div. 801; Matter of Heaton, 224
N. Y. 22; Matter of Dunn, 184 App. Div. 386.
The contestants have failed to show evidence of
direct pressure upon the testator, or produce evidence
which will support a verdict that the will was the
produ>ct of undue influence, or coercion, or duress, or
fraud, or force, or restraint of any kind or character.
The burden of proof of undue influence is always upon
the contestants, and never shifts. Matter of Kindherg,
207 N. Y. 220. The contestants have failed to sustain
this burden. Testamentary gifts to paramours, or
Digiti
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646 Matter of Tymbson.
Surrogate's Court, Westchester County, March, 1921. [Vol. 114.
strangers to the blood do not per se create an invalid
will, nor necessarily pre-suppose undue influence.
Scott V. Barker, 129 App. Div. 241; Matter of Eddy,
41 Misc. Rep. 283; Heyzer v. Morris, 110 App. Div.
313; Matter of Mondorf, 110 N. Y. 450; Matter of
Powers, supra; Matter of Fleischma^n, supra; Matter
of Snelling, 136 N. Y. 516; Hagan v. Sone, 174 id. 317,
323.
Influence which exists from affection, or desire to
gratify, is not undue influence sufficient to invalidate
a will.
I take from the consideration of the jury the issues
of restraint and undue influence, and I direct a verdict
upon these issues raised by the contestants in favor of
the will.
Another and vital issu^ in this case is that of mental
capacity of the testator. In order to make a proper
will, it is necessary that the testator should have tes-
tamentary capacity. It is essential that the testator
have sufficient mental capacity to comprehend per-
fectly the condition of his property as relates to the
persons who were, or ought, or might have been the
objects of his bounty, and the scope and bearing of
the provisions of his will. He must, in the language
of the law, have sufficient active memory to collect in
his mind, without prompting, the business to be trans-
acted. The test is: Was testator's mind capable of
understanding the nature and disposition of his prop-
erty, and his relations with his relatives! If the tes-
tator has this, upon the date he made his wUl, he is a
I)erson of sound mind and memory, within the meaning
and intent of the Statute of Wills. Code Civ. Pro.
^ 2614; Delafield V. Parish, 25 N. Y. 9; Matter of
Lawrence, 48 App. Div. 83; Matter of Snelling, 136
N. Y. 515. Less mental faculty is required to execute
a will than to enter into any other legal instrument.
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Mattbb of Tymeson. 647
Misc.] Surrogate's Court, Westchester County, March, 1921.
Matter of Moyer, 97 Misc. Rep. 512, 531. In a case free
from undtie influence, not a very high degree of men-
tality is required to make a valid will. Matter of
Strong, 179 App. Div. 539.
The testator's property was his own. Under our sys-
tem of law, he had the power to do with it as he chose.
The law does not constrain a testator to be just, or to
recognize natural claims upon his bounty. So long as
the will is his own and not another's, it must stand, if
he is competent to make it. Dohie v. Armstrong, 160
N. T. 584, 693] Matter of Huber, 103 Misc. Rep. 599,
611, 612; Smith v. Keller, 205 N. Y. 39.
The holding of delusions does not in and of itself
constitute testamentary incapacity. There may co-
exist delusion and a disposing mind. A delusion affects
testamentary capacity only when it enters into and
controls in some degree its exercise, and to invalidate
a will, it must be shown that the will was the result of
the delusion. Beaton's Will, 224 N. Y. 22, 29.
There is no presumption against the validity of a
will because the will was made by a person of advanced
years and in enfeebled condition of body and mind.
Attempted suicide does not of itself raise a presump-
tion of lack of mental capacity. Evidence produced by
contestants of moral depravity, or moral insanity does
not constitute legal incapacity or legal insanity. It
may be classed as relaxation to mental effort. Proof
of moral depravity does not establish a lack of intel-
lectual ability. The law does not require any par-
trcular grade of moral rectitude as an element of tes-
tamentary capacity. Matter of Forman, 54 Barb. 274;
Matter of Jones, 5 Misc. Rep. 199; 1 Jarman Wills, 75.
Ill health is not of itself evidence of want of testamen-
tary capacity. Eccentricity, even gross eccentricity,
slovenliness in dress, peculiarities of speech and man-
ner are not facts sufficient to disqualify a person from
Digiti
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648 Matter of Tymbson.
Surrogate's Court, Westchester County, March, 1921. [Vol. 114.
making a valid will. Matter of Schober, 90 Misc. Bep.
230; Matter of Cutter, 175 App. Div. 647; retrial, 100
Misc. Rep. 130.
Where upon consideration of the entire evidence of
the case, reasonable men might draw different infer-
ences, then, and only then, a question of fact is pre-
sented, which the court should submit to the jury.
Whether this issue of mental capacity should be sub-
mitted to the jury is to be further tested as follows :
If in the opinion of the surrogate he should have to
set aside the verdict of the jury, as against the weight
of evidence, if given against the will, then he should
not submit the issue to the jury.
Proof of the evidence of undue influence always pre-
supposes that mental capacity exists. Matter of
Dunn, 184 App. Div. 386. Proof of the ability to per-
form, in a satisfactory manner, a person ^s usual toil,
pre-supposes that mental capacity exists, sufficient to
make a valid will, even though that person suffers from
progressive arterio-scelerosis.
The testamentary capacity of the decedent, evi-
denced by the exercise of his sensitive creative intel-
lect, and recognized genius; his rationality in the
original conception of ideas, resulting in the almost
human functioning of mechanical inventions, auto-
matically performing intricate tasks, in tireless repe-
tition, being useful, valuable, and absorbed in a great
manufacturing plant, prior to, near, and subsequent to
the date of the will ; and as further evidenced by his
habits, acts and speech, all testified to by the witnesses
for the will, oppose, and are in contradiction to the
existence of arterio-sclerotic insanity on October 4,
1918.
These two opposite forces and conditions — one the
vital organism which propels normally the human
mind — the other the destructive condition which sde-
Digiti
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Matter of Tymeson. 649
Misc.] Surrogate's Court, Westchester County, March, 1921.
rotic insanity causes — do not exist in the same hrain,
at the same time. Sclerotic insanity may exist in an
individual, and destroy the mental power to develop
those things which the decedent created. But, the
mental labor performed by the decedent as stated
above, disproves and confutes the testimony that scle-
rotic insanity existed in his case on October 4, 1918.
Testamentary capacity and sound mind as defined
by the law, not medical soundness of mind, governs
regarding wills. The legal test of sanity is that the
acts and conduct of the person whose sanity is under
investigation shall correspond with the acts and con-
duct of the person himself at the time when he is
proved to have been in health and sound mind. The
eccentricities and conduct of the testator at the time
he made his will were normal to the man himself for
over thirty-five years, according to the testimony.
In my opinion, different inferences cannot fairly he
drawn by reasonable men from the character of the
evidence offered on this trial, upon the issue of the
mental capacity of the testator. The only inference to
be drawn by reasonably minded men from all the evi-
dence is that the testator possessed the mental capac-
ity required by law to make a valid will on October 4,
1918. In my judgment, no question of fact is pre-
sented for the jury.
Consequently, evidence which is not sufficient to sup-
port a verdict is in the eye of the law no evidence,
and, when it is said that there is no evidence to go to
a jury, it is not meant literally ** none,*' but that there
is none that ought reasonably to satisfy a jury that
the fact sought to be proved is established. Matter of
Case, 214 N. Y. 199; Getty v. WUliams Silver Co., 221
id. 34, 39; Matter of Ruber, 103 Misc. Bep. 608; Matter
of Dorsey, 94 id. 566, 577.
Matter of Ruef, 180 App. Div. 203, 207; affd., 223
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jJU^a.xjLJiiXk \JM: j. X JXLX!iOvrx>i .
Surrogate's Court, Westchester County, March, 1921. [VoL 114.
N. Y. 582, is the law of this department and the state
upon this question. The court held : * * If the evidence
is not suflScient to support* a verdict, it is * in the eye of
the law no evidence,' and should not be submitted to a
jury,'* quoting Matter of Case, supra. This accords
with the trend of recent decisions. The following cases
support this principle and the test above indicated;
Matter of Cutter, 100 Misc. Rep. 130; Matter of Ken-
nedy, 106 id. 216; Matter of Hall, 193 App. Div. 362;
Matter of Woods, 189 id. 324 ; Ivison v. Ivison, 80 id.
599; Burke v. Burke, 193 id. 801; Lester v. Lester, 178
id. 438; Matter of Brand, 185 id. 134; affd., 227 N. T.
630; Matter of Fleischmann, 176 App. Div. 785 ; Matter
of Dunn, 184 id. 386; Matter of Kennedy, 186 id. 19,
190 id. 896; affd., 229 N. Y. 567; Matter of Goodheart,
173 App. Div. 256; Matter of Sullivan, 229 N. Y. 440;
King's Will, 172 N. Y. Supp. 870; Dohie v. Armstrong,
160 N. Y. 584; Matter of McOUl, 229 id. 405, 410;
Estate of O'Brien, N. Y. L. J., Dec. 29, 1920.
Had I left the matter to the jury and had they found
against the will, the verdict must have been set aside,
in my judgment, as against the weight of evidence.
The burden of proof of mental capacity, which rests
upon the proponent, has been sustained. After mature
deliberation, I feel it my duty and judicial obligation
to refrain from submitting this issue to the jury. I
direct a verdict upon this issue raised by the contest-
ants in favor of the will.
Probate decreed.
People ex rel. Hultman v. Gilchrist. 651
Mise.] Supreme Court, March, 1921.
The People ex rel. Knut Hultman et al., Relators,
V. John F. Gilchrist, as Commissioner of the
Department of Licenses of the City of New York,
Respondent. The Twentieth Century Brown &
White Taxicab Association, Inc.
(Supreme Court, New York Special Term, March, 1921.)
Mandamus — who entifled to a peremptory writ of — lioenaea —
taxLcabe — trade marks — injnnctions — Oode of Ordinances
of city of New York, art. 8, chap. 14.
While mandamus will not lie to compel a public officer to
exercise a discretionary pow^, yet if his action in a given mat-
ter is in a Ic^al sense arbitrary, tyrannical or unreasonable, or
is based upon false information, the relator may have a rem-
edy to right the wrong which he has suffered. (P. 658.)
The provisions of article 8, chapter 14, of the Code of Ordi-
nances of the city of New York not only indicate with accu-
racy 'the function of the commissioner of the department of
licenses in regard to the issuance of licenses to operate taxi-
cabs as public hacks for hire, but also suggest the reasonable
limitations thereon to be the ascertainment of the safety and
fitness of cab and driver. (P. 654.)
Whether vehicles infringe upon patents or trade marks or
involve possibilities of unfair competition with other instru-
mentalities of transportation is entirely outside of the purview
of the commissioner's duties. (Id.)
To a petition for a writ of mandamus to compel the commis-
sioner of the department of licenses of the city of New York
to issue to relators licenses to operate their taxicabs as public
hacks for hire, ho made a return that having learned that the
courts had established for the "Twentieth Century Brown &
White Taxicab Association, Inc." the right to use the colors
brown and white in a particular combination and scheme, he
had, in view of the facts and adjudications, and actuated solely
by a sense of public duty, refused to issue licenses to others
operating brown and white taxicabs, in the interest of and to
conserve the public welfare, and to protect the public against
the deception arising out of such simulation. Keld, that it
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Supreme Court, March, 1921. [Vol. 114.
being quite apparent that the adjudications in the actions
which terminated in injunctions in favor of the said associa-
tion, did not establish its right to the combination of brown
and white colors, except against the particular defendants in
those suits, the statements in the return to the petition for the
writ indicated a radical misconception of the significance of
said adjudications. (P. 665.)
The decision of said commissioner refusing to grant taxicab
lioenses to relators was based solely on the adjudications in
favor of the Brown ft White Association. There was no pre-
tense that the public is otherwise injured by the competition
of relators and the various affidavits indicated that the brown
and white color is understood by the public to mean that cabs
80 painted charge a lower rate than ordinary cabs. Held, that
the rektors who charge such lower rates were entitled to a
peremptory writ as applied for.
People ex rel Duffy v. GUehrist, 190 App. Div. 808, distin-
goiflhed.
Application for a writ of mandamus.
Honse, Grossman & Vorhaus, for relators.
John P. O'Brien, corporation counsel of city of
New York, for respondent.
Phillips, Mahoney & Liebell (Warren C. Fielding,
of counsel), for intervenor.
BijuR, J. This is a petition for a writ of man-
damus directed to resi)ondent as commissioner of the
department of licenses requiring him to issue licenses
(under the provisions of article 8, chapter 14, of the
Code of Ordinances of the city of New York) to
relators to ply their taxicabs for the year 1921 as
public hacks for hire upon the streets of New York.
There is no dispute as to material facts. Respond-
ent's return recites: ** Heretofore, some time in Janu-
ary, 1921, the Twentieth Century Brown & White Taxi-
People ex bel. Hultsian v. Gilchrist. 653
Miae.] Supreme Court, Mcurch, 1921.
cab Association, Inc., represented to me that they had
established their right to use the colors brown and
white' in the particular combination and scheme in
which the public hacks operated by them are painted
by adjudications in the Supreme Court of the First
Department in several cases. The facts, substantially
as set forth in the affidavit of Warren C. Fielding,
annexed hereto as a part of the opposing papers
herein, with respect to the procurement of injunctions
by said association, and the grounds upon which such
injunctions were procured, were presented to me by
the said association. I concluded that it was in the
interest of the public welfare, in view of those facts
and adjudications, to refuse to issue licenses to hacks
painted brown and white in simulation of the color
scheme and combination of the hacks of the Twen-
tieth Century Brown & White Tazicaib Association,
Inc. I therefore directed the chief of the division of
licensed vehicles to carry out that determination and
to refuse to issue licenses to hacks which in color
combination simulated the hacks of the said associa-
tion, in order to conserve the public welfare and to
protect the public against the deception arising out
of such simulation.'' The first question which pre-
sents itself is as to the power of the commissioner in
the premises. The appropriate ordinance (art. 8,
chap. 1) provides in section 83 ** that no public hack
shall ply for hire upon the streets of the city with-
out first obtaining a license from the commissioner,'*
and in section 84 that *' no vehicle shall be licensed
until it has been thoroughly and carefully inspected
and examined and found to be in thoroughly safe con-
dition for the transportation of passengers — clean,
fit, of good appearance and well jminted and var-
nished. The commissioner shall make • • • such
examination and inspection before issuing a license.
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654 People ex bel. Hultman v. Gilghbibt.
Supreme Court, March, 1921. [Vol. 114.
The commissioner shall refuse a license to * * *
any vehicle found by him to be unfit for public patron-
age,'^ There is a further requirement for the exam-
ination of taximeters. Under section 88 he is required
to ** maintain constant vigilance over all public hacks
to see that they are kept in a condition of continued
fitness for public use.'' Section 89 provides that
licenses may be revoked ** if the vehicle shall not be
in good condition and appearance, clean and safe."
Section 90 provides for a driver's license, which is
limited to persons of good physical condition, neces-
sary education, sobriety and good character. Section
91 requires an examination of the driver's '* knowl-
edge of the provisions of this article, the traflSc regu-
lations and the geography of the city " as well as a
demonstration of the applicant's '* skill and ability to
safely handle his vehicle." These provisions indicate
with accuracy the function of the commissioner and
suggest the reasonable limitations thereon to be the
ascertainment of the safety and fitness of cab and
driver. As matter of common knowledge, unaided
even by the precise provisions of the ordinances, I
should be of opinion that the question whether vehicles
infringe upon patents or trade marks or involve possi-
bilities of unfair competition with other instrumentali-
ties of transportation is entirely outside of the pur-
view of the commissioner's duties. This is confirmed
by even a cursory examination of the other subjects
of license placed under respondent's control. There
is a general provision in article 1 of this chapter
listing the businesses or occupations required to be
licensed, which, in alphabetical order, run from ** bil-
liard and pool tables " through ** hand organs " to
*' weighers of hay." There are also a number of spe-
cial enactments like those (chap. 3) relating to
licenses for amusements and exhibitions. It requires
People ex bel. Hultman v. Gilghbist. 655
Mise.] Supreme Court, March, 1921.
little stretch of the imagination to foresee the extent
of the commissioner's activities and the far-reaching
results of their exercise if he should undertake to
make the enjoyment of a license by a theatre or public
exhibition depend upon his opinion whether the whole
or a part of the building, the apparatus or the per-
formance involved infringements on patents, copy-
rights, trade marks or other similar private interests.
I doubt, indeed, whether respondent would consciously
imdertake to decide such issues of law and fact. I
understand his position in the present litigation as
expressed in his return to be that having learned that
the courts had '* established *' for the Brown &
"White Association the ** right to use the colors brown
and white in the particular combination,'' he has,
*' in view of these facts and adjudications/' declined
to issue licenses to others operating similar brown
and white taxicabs ** in the interest of the public wel-
fare," and *' to conserve the public welfare and to
protect the public against the deception arising out
of such simulation." These statements, however, of
themselves, indicate a radical misconception of the
significance of the adjudications on which he relies.
In the first place, it is quite apparent that in the three
actions which have terminated in injunctions in favor
of the association the adjudication did not *' establish
the right " of the association to the combination of
brown and white colors, except, and this is the vital
point, a^ against the particular defendants in those
suits. In the second place, respondent has equally mis-
apprehended the meaning of those decisions in respect
of the public welfare. It frequently happens that the
public is mentioned in cases involving unfair com-
petition. The adjudication, however, is not intended
to safeguard the public welfare, but only the interests
of the complainants. The subject is happily expounded
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656 P£OPLB EX REL. HuLTMAN V. GlLCHBIST.
t
Supreme Court, March, 1921. [Vol. 114.
in American Washboard Co. v. Saginaw Co., 103 Fed.
Eepr. 281, 285. The court there says: '' The theory
of the case seems to be that complainant, manufac-
turing a genuine aluminum board, has a right to
enjoin others from branding any board * Aluminum'
not so in fact, although there is no attempt on the part
of such wrongdoer to impose upon the public the belief
that the goods thus manufactured are the goods of
complainant. We are not referred to any case going
to the length required to support such a bill. It loses
sight of the thoroughly established principle that the
private right of action in such cases is not based upon
fraud or imposition upon the public, but is maintained
solely for the protection of the property rights of the
complainant." In Holhrook v. Nesbitt, 163 Mass. 120,
125, the decision reads: ** To avoid misapprehension,
it may be well to state that the court does not inter-
fere to prevent the public from being misled, but * for
the purpose of protecting the owner of a trade or busi-
ness from a fraudulent invasion of that business by
somebody else ' {Levy v. Walker, 10 Ch. D. 436, 448).''
See, also, Kentucky Distilleries, etc., v. Wathen, 110
Fed. Bepr. 641, 645; Munro v, Tousey, 129 N. T. 38,
41, 42; Amoskeag Mfg. Co. v. Spear, 2 Sandf. 599, 605,
606. It will thus be seen that in actions for the pro-
tection of a distinctive mark in trade the possible
deception of the public is considered solely because of
its effect upon the trade of the complainant. To the
extent that the public is deceived the trado of the
complainant is diminished. The deception referred
to, however, is as to the identification of the article
offered by the defendant with that offered by the com-
plainant. Whether the public be benefited or injured
by the deception is not the concern of the court ; con-
sequently the public welfare, as distinguished from
deception of the public, is not involved. An injuno-
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People ex rel. Htjltman v. Gilchrist. 657
ICise.] Supreme Courts March, 1921.
tion would issue none the less if it appeared that the
defendant's goods were better and cheaper than the
complainant's; it would not be refused merely because
defendant's goods were inferior and dearer. The
suit is designed to prevent an invasion of the private
interest of the plaintiff. If that be established the
defendant cannot avoid an unfavorable judgment by
showing merely that if he be permitted to continue
the private wrong the public will get better or cheaper
goods. The respondent with commendable frankness
bases his decision solely on the adjudications hereto-
fore rendered. There is no pretense that the public
is otherwise injured by the competition of relators.
Indeed, the various affidavits indicate that the brown
and white color is understood by the public to mean
that cabs so painted charge a somewhat lower rate
than ordinary cabs, and the relators, together with
those affiants who support their position, show that
they charge such rates. Moreover, one of the affiants
asserts that he and his cab have been examined and
inspected, respectively, and approved, but that this
license was refused on the grounds here at issue. This
analysis demonstrates that the adjudications upon
which alone respondent's ruling is based decide
neither that the association has ** established " its
exclusive right to the combination of the brown and
white colors, nor that the ** public welfare " is
affected by an imitation thereof by relators. It may
not be amiss to point out that this misapprehension
by respondent of the significance of the adjudications
emphasizes the danger of permitting an administrative
officer to undertake the delicate task of interpreting
judicial decisions and of administering an executive
office in a manner to virtually supplant the adminis-
tration of justice as maintained in our system of gov-
ernment. It enables us also to draw a determinative
42
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658 People ex rel. Hultman v. Gilchrist.
Supreme Court, March, 1921. [Vol. 114.
line of demarcation between the functions of the com-
ndssioner of licenses and those of the courts. I am
quite clear, and I understand it not even to be ques-
tioned, that the respondent has acted in the best of
faith actuated solely by his sense of public duty. His
ruling, however, is in a legal sense and, as that term
is used in the decisions, *' arbitrary.*' It is also
^* based on false information.'' It is elementary
** that mandamus will not lie to comi)el the perform-
ance of a power the exercise of which lies in the dis-
cretion of the officer against whom the writ is sought."
If, however, his ** action is arbitrary, tyrannical or
unreasonable, or is based upon false information, the
relator may have a remedy to right the wrong which
he has suffered." See People ex rel. Empire City
Trotting Club v. State Racing Comm., 190 N. Y. 31,
33, 34; also Matter of Ormsby v. Bell, 218 id. 213, 216;
Message Photo Play Co., Inc., v. Bell, 179 App. Div.
13, 19, 20. It is arbitrary in one of the senses defined
by Webster, i. c, as *' not governed by any fixed rules
or standard," and it is based not merely *' on false
information," but actually on reasons which, as I have
shown, do not as matter of law and fact exist. It
remains to consider a further important point urged
by respondent, namely, that the decision in People
ex rel. Duffy v. Gilchrist, N. T. L. J., Aug. 16, 1919;
affd. without opinion by the Appellate Division in 190
App. Div. 898, is determinative against the present
application. That was indeed a petition for a writ
of mandamus presented under similar circumstances,
except that it involved the colors black and white
and the Black & White Cab Co., Inc. But while the
circumstances were similar, the petition was alto-
gether different. I have been favored with the record
in that case and it appears therefrom that the relator
DufiFy neither presented nor suggested any fact or
People ex kel. Hultman v. Gilghbist. 659
ICise.] Supreme Courts March^ 1921.
reason why Ms position differed in any respect from
that of the defendants in the several injunction pro-
ceedings which had theretofore terminated adversely
to a number of defendants sued by the Black & White
Company. It is well settled that the ** exercise of the
jurisdiction to grant mandamus rests in the sound
discretion of the court.'* High Ex. Leg. Eem. § 9;
People ex rel. Durant Land Imp. Go. v. Jerolman, 139
N. T. 14, 17; People ex rel. Wood v. Assessors, 137 id.
201, 204; People ex rel. Ajas y. Board of Education,
104 App. Div. 162, 164. The question, therefore, pre-
sented for adjudication in the Duffy case was not
merely whether the commissioner of licenses had
acted '* arbitrarily ** in refusing licenses to all drivers
of black and white taxicabs other than those of the
company, hut whether the court should exercise its
discretion to issue this extraordinary writ to the
relator in that case. It was certainly a sound basis
for the denial of Duffy's petition that upon his own
showing the relief he sought would have been futile.
To put the matter in a form more familiar to the
lawyer, and quoting again from Mr. High: ** The
person seeking relief must show a clear legal right to
have the thing sought by it (the writ) done." What
clear legal right did Duffy disclose when he practi-
cally conceded that his case differed in no respect
from those in which adjudications had already been
rendered against the right to use taxicabs similar to
the one for which he sought a license? In the instant
case, however, relators have submitted among others
an affidavit of one Pittsburg, which recites that he
was one of the six organizers of the Brown & White
Association in January, 1918, as well as of its prede-
cessor; that originally the members had used the
colors black and white, but later adopted brown and
white; that at that time there were on the streets hun-
Digiti
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Supreme Court, March, 1921. [Vol. 114.
dreds of brown and white taxicabs not connected with
the association; that the only distinguishing mark
which the organization intended to utilize was the
diamond monogram on its door and on the rear, and
that the brown and white colors were adopted merely
for the purpose of indicating taxicabs whose rates
were somewhat lower than those ordinarily charged.
One Repperger affirms in another affidavit that he
has operated a brown and white taxicab considerably
over three years. It is quite clear that if relators are
able on a trial to establish these facts, now sworn to
before me, they would have — I shall not say a good
defense, but at least a highly defensible position
against any attempt to enforce as against them the
right on the part of the Brown & White Association
to the exclusive use of the combination of those colors.
Their contention in these respects (even apart from
the further suggestion in the moving papers and on the
argument of possible collusion in the obtaining of the
previous injunctions) would call for the careful and
painstaking consideration of the courts, to whose
determination of their property rights they are
entitled by our Constitution. Yet, unless the relief
which they now seek be granted, they will have been
finally deprived of those rights by mere administrative
flat. It is true that affidavits submitted on behalf of
the Brown & White Association as ** intervenor " in
the instant proceeding take issue with the allegations
in the affidavit of Pittsburg and in those of other
affiants on behalf of the relators. The issues so
raised, however, involve questions which must be
determined in the regular way, and with due consid-
eration of the fact that in the appropriate litigation
the burden of establishing the material facts will rest
upon the association and not upon the present relators
as defendants in such litigation. This, by the way,
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PEOPIiB EX REL. HuLTMAN V. (
Hisc.] Supreme Courts March, 19^
illustrates further the injustice and {
bility of attempts to determine in su
trative manner issues as to which
entitled to the orderly adjudication o
some of the affidavits submitted on be]
venor in this proceeding, and in on(
larly submitted in the Duffy case, th
to the great difficulty and inconveniec
enforcing injunctions obtained agains
am not unmindful of their embarrag
condition is more or less inherent ii
remedies. It certainly affords no gi
doning our system of administration
having recourse to arbitrary administ:
not authorized by Constitution or
relators' case as presented to me no
that embodied in the moving papers in
I should not hesitate, notwithstanding
of the limited function and duties of
yield to the authority of that decisioi
ever, the case here presented differs 1
case in the vital and determinative r
have pointed out, I am of opinion th
are entitled to a peremptory writ.
Ordered accordingly*
662 Pre' Catelan, Inc., v. Int. Fed. of Woekbbs.
Supreme Court, March, 1921. [Vol. 114.
Pre' Catelan, Inc., Plaintiff, v. International Fed-
eration OF Workers in the Hotel, Bestaurant,
Lunch Boom, Club, and Catering Industry, and
** Louis '' Merlen, the First Name ** Louis '' Being
Fictitious, the Beal Name Being Unknown to Plain-
tiff, Individually and as Secretary and Treasurer
of International Federation of Workers in the
Hotel, Bestaurant, Lunch Boom, Club and Catering
Industry, Defendants.
(Supreme Court, New York Special Term, March, 1921.)
Picketing^ right to pidcet — strikes— labor unions — injimo-
tions.
Injnnctlons — when motion to continue injunction pendente lite
granted — labor unions — picketing — restaurant keepers.
The fundamental thought underlying the judicial decisions
by which solely the right to picket was created, was and is that
the grant of such right was in furtherance, not of a greater
liberty to be exercised by employees out on strike, but for their
betterment, if such result could be brought about. It was
never intended that the laws of the land should yield in the
exercise of the right to picket (Pp. 668, 669.)
The right to picket, even in an orderly and quiet manner,
does not carry with it the privilege of destruction as a means to
an end; nor does it, even inferentially, confer the right to un-
lawfully coerce or oppress. (P. 669.)
Picketing unaccompanied by threats and intimidation is a
useless weapon; its effectiveness and its very essence is in the
terror it incites. (Id.)
Plaintiff, engaged in the restaurant business and employing
approximately a hundred persons in different capacities, has
always maintained an "open shop" and has never discrimi-
nated against union labor. While its restaurant about ten
p. ic. was crowded with patrons, who though they had given
their orders had not been served, all the waiters without cause
or grievance suddenly, without warning or notice, walked out,
and on the following day began picketing in front of plain-
tiff's place of business in squads of from two to fifteen per-
Digiti
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Pre' Catelak, Inc., i;. Int. Fed. of Wohkehs. 663
Misc.] Supreme Court, March, 1921.
sons, each carrying a sign which read " Workers of Pre' Cata-
lan on strike for better conditions." It appeared by affidavits
that as part of a scheme to injure and demoralize plaintiff's
business and to produce fear on the part of its employees, some
of them were subjected to aggravated assaults and threatened
that if they did not cease working for plaintiff and join the
union harm would follow; that there were threats of injury
to patrons; that in order to protect its employees from harm
plaintiff was put to the necessity of carrying them to and from
work in tazicabs. It also appeared that agents of defendant,
the International Federation of Workers in the hotel, restau-
rant, etc., industry, had entered plaintiff's premises, blocking
the entrance thereto, and had used indecent language to its
employees, interfered with them in the discharge of their duties,
and followed them to thdr homes. Held, that a motion to
eontinue an injunction pendente lite will be granted. (Pp.
663-664, 672.)
Motion to continue an injunction pendente lite.
Harry W. Newburger, for plaintiff.
William Karlin, for defendants.
Erlakgbb, J. The moving papers show that plain-
tiff is engaged in the restaurant business in which it
has invested upwards of $100,000. Its rent is about
$25,000 yearly; it employs approximately 100 per-
sons in different capacities, among them a large num-
ber of waiters; that it has always maintained an
** open shop *' and never discriminated against union
labor; that the head waiter hired the employees. On
February 13, 1921, at about ten p. m. while the restau-
rant was crowded with patrons who had given their
orders but had not yet been served, all the waiters
without cause or grievance therefor suddenly and
without warning or notice walked out and on the fol-
lowing day began picketing in front of its place of
business in groups or squads consisting of from two
to fifteen persons; that the latter carry upon their
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664 Pbe' Catelan, Inc., v. Int. Fed. of Wobkbes,
Supreme Court, March, 1921. [Vol. 114.
person a sign which reads ** Workers of Pre* Catelan
on strike for better conditions,*' and then there is
recited a series of acts of violence and intimidation
against its employees and intended patrons so shock-
ing that one is almost stunned at the thought that
such occurrences are possible in a civilized country.
It is shown that one of the employees is in the Eoose-
velt Hospital suffering from a fractured nose, black-
ened eyes and lacerations of the face ; that his assail-
ant was arrested and held to bail; that another was
attacked almost in front of plaintiff's premises and
beaten about the head and face nearly into uncon-
sciousness; that another was kicked in the head and
face and is confined to his home as the result of his
injuries; that another was knocked down by persons
jumping from a taxicab who beat up his head and face
and who has since been confined to his home by rea-
son of the assault ; that others were called vile names ;
that a number of patrons have been threatened by the
sign bearers with bodily harm if they continued to
patronize plaintiff; that other patrons were told that
the place was disorderly and was to be raided; that
the employees were threatened with harm if they
did not quit working for the plaintiff; that the
patrolling is for the purpose of intimidating its
employees and to induce them to join the union ; that
agents of the defendants have entered plaintiff's
premises and used indecent language to its employees
and interfered with them in the discharge of their
duties ; that the entrance to its premises was blocked,
its employees followed to their homes, all which is a
part of a scheme to injure and demoralize plaintiff's
business and to produce fear on the part of its
employees; that the pickets are on duty from eleven
A. M. to one A. M.; that to protect its employees they
are carried back and forth in taxicabs. The defend-
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Pre' Catelan, Inc., v. Int. Fed. of Workers. 665
Misc.] Supreme Court, March, 1921.
ants make a sweeping denial of all the charges so made
against them. In the opposing papers a history is
given of conditions existing in the hotel and restau-
rant industry showing how bad they were before the
association defendant was formed, and the improve-
ment that has taken place from that time on as to
wages, hours of work and living conditions; that in
1918 the union presented demands to the plaintiff as
to wages, hours of labor and reduction of working
days from seven to six and an amicable settlement
was attempted, and this being refused a strike was
called by the union which lasted only a few hours and
finally the demands were granted. Since then and for
over two years the relations between plaintiff and
the union have been amicable and so continued for
over two years. As a result of the agreement the union
was permitted by plaintiff to appoint one of its
employees as a shop representative whose duty it was
to see that the rules of the union and the agreement
were enforced. Only members of the union were to be
employed; that no employee was to be discharged
except for reasonable cause, and in the event of an
indiscriminate discharge upon investigation of the
union the employee was to be reinstated; that all of
plaintiff's employees were members of the union for
about three years; that on the day following the
strike, defendant's secretary called on plaintiff's sec-
retary and offered to bring about an amicable settle-
ment of the strike ; that the former advised the latter
that the union had secured information that the plain-
tiff had employed a crew of non-union men to take
the place of the union employees, and if plaintiff
would relinquish its plans against the union employees
the matter could be settled immediately; that to this
a threat to kill was made and that the union would
be shot to pieces and smashed if it insisted on main-
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666 Pre' Catelak, Inc., v. Int. Fed. op Workers.
Supreme Court, March, 1921. [Vol. 114.
taining jurisdiction over plaintiff's place; that all
efforts to settle failed; that the cause of the strike
was brought about by the employees being informed
that it was plaintiff's intention to destroy the organi-
zation of its employees and to retain in its employ
only such as were willing to give up their union mem-
bership; that on the thirteenth day of February a
full crew of non-union men was hired and the union
employees discharged; that the waiters were ** locked
out " without any previous notice to them and as a
result went on strike ; that the pickets were instructed
to commit no act of violence or breach of the peace;
that no more than two pickets were at any time in
front of the premises; that customers were never
threatened and no attacks were made by the pickets;
that no disorderly act occurred since the strike began;
that the relation between plaintiff's customers and
the former employees was amicable *' and for that
reason it must be admitted that perhaps due to the
existence of the present strike the plaintiff's place
of business might have suffered somewhat, but this is
not due to any threats made by the pickets, but to the
sympathy of the dining public with the cause of the
employees;" that no employees of plaintiff were
followed; no taxicabs used, but it is admitted ** that
some of the strong arm men hired by the plaintiff car-
ried the emiJoyees of plaintiff to and from their
place of business in taxicabs and these were the only
taxicabs used in connection with the strike;" that
plaintiff from the beginning of the picketing always
had an officer in front of its place and hired men ** who
are very tough in appearance " who sought quarrels
with the pickets. In fine, the contention is that the
acts of the pickets were at all times peaceful, and
the assaults, if committed, and other disturbances,
were the acts of strangers. The affidavit in reply
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Pre' Catelan, Inc., v. Int. Fed. of Workers. 667
Mise.] Supreme Court, March, 1921.
denies that plaintiff ever had anything but an open
shop; that it never had any contract with the union
containing any definite conditions; denies any dis-
crimination ; that its present employees are non-union
men; denies the hiring of any guards or toughs;
denies police protection; denies that any threat was
made to destroy the organization of its employees;
denies any threats to discharge the waiters; that no
dispute was ever had with them; that their leaving
was a surprise and that it had no prior knowledge
of any reason for their action ; denies the employment
of a crew of non-union men on the thirteenth day of
February as claimed, but admits that a new crew was
employed within twenty-four hours after the waiters
walked out, etc. The foregoing are the salient points
which the papers on both sides exhibit and they show
how sharp the conflict is on this motion. If mere
denials were controlling on applications for injunc-
tions, that writ would seldom issue. It never issues
as a matter of course. But a court of equity will
not withhold its power in that regard when a prima
facie case is presented and the exigencies of the situa-
tion warrant its action. In the case of Skolny v.
Eillman, 114 Misc. Rep. 571, I said among other
things: ** It is clearly established that picketing is
lawful; that a man may work or not as he shall
choose ; that he may strike with others and peaceably
seek others to join. But it is equally well settled that
a worker may work wheresoever it pleases him; that
he may labor and provide for hiijaself and family with-
out being subjected to the danger- of assault or threat
of bodily harm; that he cannot be compelled to join
a union if he is not disposed so to do ; that employees
may not be enticed from their employment by threats
or otherwise.'* Many of the features in the cited case
are present here. Plaintiff insists on an *' open
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668 Pre' Catelan, Inc., v. Int. Fed. of Wobkers,
Supreme Court, March, 1921. [Vol. 114.
shop.*' The defendants on the other hand want it
unionized so that none but union men shall be
employed. They are fighting not only for what is
known as the ** closed shop ^' which excludes all
workers not members of the union, but also to main-
tain in plaintiff's business a *' shop representative ''
whose duty it is to see that union rules are enforced
and that no one is discharged except for reasonable
cause, of which the union is to be the sole judge. That
such is their contention is fairly to be inferred from
the proof before me. And this, it is plaintiff's
claim, is the origin of the trouble. Whether the
waiters left voluntarily or were locked out, does not
confer upon them the right to injure or destroy. If
causelessly discharged, the courts afford them a
proper remedy. If to strike and picket means that
employers must through violence, intimidation and
threats of destruction of their business yield to the
demands which they, the strikers, through their union,
shall see fit to impose, that is a direct challenge to
existing laws and defies the basic principle of free-
dom of action, on which our form of government rests.
When I said in the cited case that strikes and picket-
ing were lawful, I meant of course those conducted
by lawful means. The fact must not be lost sight of,
that the right to picket, which is regarded in the eyes
of the union as a sacred one, was created by the
courts, and solely by them, and it is that tribunal
which must correct abuses, if any arise under the
determinations made by them. The fundamental
.thought underlying such decisions no doubt was, and
is, that the grant of such right was in furtherance,
not of a greater liberty to be exercised by them, but
for the betterment of the worker if such result could
be brought about, and to this central idea no one can
or will find fault. But it was never intended that the
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Pre* Catbian, Ikc, v. Int. Fed. of Workees. 669
Misc.] Supreme Courts March, 1921.
laws of the land shall yield in the performance of that
privilege. No court, I venture to say, ever imagined
that their declarations of the right to picket would
ever be construed to mean that it carried with it the
right to inaugurate a reign of terror on either a small
or large scale, or if not that, that other members of the
public through sympathy may introduce the rule of the
mob. To strike and to picket are terms which com-
prehend much. But there is a vast difference between
those terms and license. The prerogative to picket
even in an orderly and quiet manner does not carry
with it the privilege of destruction as a means to an
end. Nor does it even inf erentially confer the right
to unlawfully coerce or oppress. Picketing unaccom-
panied by threats and intimidation is a useless
weapon. Its effectiveness and its very essence is in
the terror that it excites. If done peaceably it would
be futile. It follows then that the fear, if not the
terror that the picketing carries with it, is the key-
stone of the arch and the potential element to the
success of the cause. We have here established
assaults of an aggravated nature; threats to em-
ployees if they did not cease working for plaintiff
harm would follow; threats of injury to patrons; the
necessity of carrying the employees back and forth in
taxicabs to protect them from harm. Are all these
charges mere fables? Were the assaults and injuries
self-inflicted t Is the use of taxicabs to carry the
employees back and forth merely a whimt Are em-
ployees to be coerced and oppressed by threats of
injury and held remediless because forsooth the
charges are denied? Is the state to be held so weak
that it cannot protect those who desire to work but are
fearful of the result if they dot Is a worker to be
deprived of the right to live even though he is willing
to work for a wage acceptable to him! Or forced to
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670 Pre' Catelan, Inc., v. Int. Fed. of Workers.
Supreme Court, March, 1921. [Vol. 114.
join a union against his will? If these things are per-
mitted and the courts are to be held powerless to pro-
tect the weak against the strong, then the law is a
mockery. If the claim that ours is a government of
laws and not of men is to be upheld, conduct of the
kind set forth in the moving papers must be dealt with,
and I can find no better expression in that connection
to convey the thought in my mind than that used by
the court in the case of Curran v. Galen, 152 N. Y. 33-
37, where it was said: ** Every citizen is deeply inter-
ested in the strict maintenance of the constitutional
right freely to pursue a lawful avocation, under con-
ditions equal as to all, and to enjoy the fruits of his
labor, without the imposition of any conditions not
required for the general welfare of the community.
The candid mind should shrink from the results of
the operation of the principle contended for here ; for
there would certainly be a compulsion, or a fettering,
of the individual, glaringly at variance with that free-
dom in the pursuit of happiness, which is believed to
be guaranteed to all by the provisions of the funda-
mental law of the state."
I am not unmindful of the rulings of the courts of
our state on the subject of strikes and picketing. They
exist in abundance, but in none that have been
examined by me were the acts chargeable to the
defendants here ever sanctioned. The terms, threats,
coercion, oppression, intimidation, and perhaps others,
have all been passed upon. It is known that a strike
to coerce an employer to discharge non-union men has
been held by our courts to be lawful. They have
gone so far as to say that employees may dictate to
employers how their business shall be conducted and
whom they shall employ {National Protective Associa-
tion V. Cumming, 170 N. Y. 315-324), and that the
employees ** have the moral and legal right to say that
Pre* Catelan, Inc., v. Int. Fed. of Workers. 671
Misc.] Supreme Court, March, 1921.
they will not work with certain men, and the employer
must accept their dictation or go without their
services." The cited and kindred cases have undoubt-
edly gone to the extreme limit. But they have never
held that citizens may be assaulted and industries or a
business destroyed at will. Nor have they gone so
far as to say that intimidation followed by felonious
assaults is permissible, or that the assaults are justi-
fied if a man labors against the union's will. Other
jurisdictions have had these questions before them.
Picketing has been held unlawful in New Jersey.
George Jonas Glass Co. v. Glass Bottle Blowers Assn.
of U. 8. <& Canada, 72 N. J. Eq. 653; affd., 77 id. 219.
In Michigan, no matter how peaceful or orderly it may
be. Beck v. Railway Teamsters Union, 118 Mich.
497; Clarage v. Luphringer, 202 id. 612. In Illinois
{Barnes v. Chicago Typo. Union, 232 111. 402); Cali-
fornia {Pierce v. Stdblemens Union Local, etc., l^G
Cal. 70) ; Ohio {Otis Steel Co., Limited, v. Local Uyilon
No. 218 of Cleveland, Ohio, 110 Fed. Repr. G98) ;
Minnesota {Knudsen v. Bcnn, 123 id. 636). In Massa-
chusetts it is not only unlawful, but has been declared
to be a nuisance. Vegelahn v. Guntner, 167 Mass. 92.
And in Iowa the same ruling was made. Atchison, T.
(& S. F. Ry. Co. V. Gee, 139 Fed. Repr. 582, 584. Among
other things, the court in the case last cited said:
** There is and can be no such thing as peaceful
picketing, any more than there can be chaste vulgarity,
or peaceful mobbing, or lawful lynching. When men
want to converse or persuade,' they do not organize a
picket line. When they only want to see who are at
work, they go and see, and then leave, and disturb no
one physically or mentally. But such picketing as is
displayed in the case at bar by the evidence does, and
is intended to, annoy and intimidate. The argument
seems to be that anything short of physical violence
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672 Pbe' Catelan, Inc., v. Int. Fed. of Workers.
Supreme Court, March, 1921. [Vol. 114.
is lawful. One man can be intimidated only when
knocked down. But the peaceful, law abiding man can
be and is intimidated by gesticulations, by menaces,
by being called harsh names, and by being followed, or
compelled to pass by men known to be unfriendly.
Perhaps such a man may not be a bully, but is frail in
size and strength, or he may be a timid man ; but such
a man is just as much entitled to go and come in quiet,
without even mental disturbance, as has the man
afraid of no one and able with or without weapons to
cope with all comers. The frail man, or the man who
shuns disturbances, or the timid man, must be pro-
tected, and the company has the right to employ such.*'
At least a contrast is shown betwfeen what our
courts have held on the subject of picketing and what
the courts of sister states have declared. The cases
cited may perhaps be explained or distinguished or
even held inapplicable to the instant case, but whether
followed or not, the fact remains that they also repre-
sent the best thought on a subject that touches the
very heart of the body politic.
From the proof submitted, I find myself unable to
agree with the argument of counsel for defendants,
that the picketing in the case at bar has been as peace-
ful and as gentle as he would have me believe. The
motion to continue the injunction pendente lite is
granted. The amount of the undertaking to be given
will be fixed on the settlement of the order.
Ordered accordingly.
BuBGEss Bros. Co., Inc., v. Stewart. 673
Misc.] Suprane Court, March, 1921.
The Burgess Bros. Co., Inc., Plaintiflf, v. Frederick
Stewart, Louis Jaffa, Walter Boss et al., Defend-
ants.
(Supreme Court, Kings Special Term, March, 1921.)
bjanctioiis — when will be granted — labor unions — evidence —
ships and shipping — conspiracy — United States Shipping
Act (89 U. S. Stat, at Large, 728), §§ 14, 16 — United
States Criminal Code, § 87.
In an action by a large exporter of lumber at New York to
restrain a course of conduct which, if persisted in, would in-
evitably bring financial ruin upon the plaintiff, some of the
defendants, representatives of a labor union, openly stated
that there was an avowed purpose on its part to force plain-
tiff to unionize its plant. This plan could not effectually be
carried out without the cooperation of such of the defendants
as were the owners or agents of steamship companies which
under section 14 of the United States Shipping Act (39 U. S.
Stat, at Large, 728), are required to serve the public without dis-
crimination. While there was no proof of an agreement between
the representatives of the steamship companies and the union to
refuse plaintiff's product, there was sufficient evidence of
their approval of, connivance at and sanctioning of the acts of
the employees as to amount to an overt act on the part of the
steamship companies. Held, that the various acts of the de-
fendants alleged in the complaint amounted in law to a con-
spiracy. (P. 678.)
The concerted action of the representatives of the steamship
companies, who evinced no desire to receive or handle plaintiff's
lumber, and their employees, none of whom did they discharge
or reprimand for discriminating against plaintiff, but openly
sanctioned such conduct, leads to the accomplishment of an un-
lawful act; ». e,, that of violating both the United States Ship-
ping Act and section 37 of the United States Criminal Code.
(Pp. 678, 679.)
It being apparent that plaintiff will suffer irreparable dam-
age, for which it has no proper or adequate remedy at law, an
injunction broad enough to include agents, stevedores, receiving
clerks, etc., will be granted against all of the defendants under
section 16 of said Shipping Act (P. 682.)
43
Digiti
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Supreme Court, March, 1921. [Vol. 114.
Action for an injunction.
Austin, MoLanahan & Merritt (Walter (Jordon
Merritt, of counsel), for plaintiff.
Kirlin, Woolsey, Campbell, Hickox & Keating
(Charles B. Hickox and Albert H. Ely, Jr., of counsel),
for defendants James F. Stuart, sued as ** Frederick
Stewart," Louis Jaffa, Walter Ross, James Meagher,
Louis L. LeFurge, sued as ** Lewis L. LeFurge,''
George J. Clark, Thomas A. Lilly, P. Kleppe & .Com-
pany, Inc., doing business as North and South At-
lantic Line, Ltd., SkeflSngton S. Norton, Joseph T.
Lilly, John D. O'Reilly and John J. Farrell, copart-
ners, doing business under the name of Norton, Lilly
& Company, individually and as representatives of
The American and Australian Steamship Line and
American Mediterranean Levant Line, Robert P.
Houston, doing business under the name of R. P.
Houston & Company, Prince Line, Ltd., Furness,
Withy & Company, Ltd., and United Port Service Co.
Mann Trice (James F. O'Neill, of counsel), for
defendants John J. McLaughlin, Frank M. Hender-
son, individually and as president of Steamship
Clerks' Union of Brooklyn and Staten Island, Local
975, I. L. A.; George Campbell, individually and as
business agent of said Local 975; John Quinn, in-
dividually and as president of Truck Drivers and
Chauffeurs Local Union 807 of the International
Brotherhood of Teamsters, Chauffeurs, Stablemen
and Helpers; William O'Neill and William Brown,
both individually and as agents of said Local Union
807 ; Edward McCaffrey, individually and as president,
and Joseph Ryan, individually and as secretary of
the Transportation Trades Council of the Port of
New York and vicinity.
Digiti
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BuBGEss Bbos. Co., Inc., v. Stewart. 675
Mise.] Supreme Court, March, 1921.
William W. Corlett, for defendants United States
Steel Products Company, John W. Eyan and Frank
C. North,
Lord, Day & Lord, for defendant Cunard Steam-
ship Company, Ltd.
Baldwin & Curtis, for defendant Overseas Shipping
Company.
Callaghan, J. The plaintiff, a large exporter of
lumber, has brought this action to restrain perma-
nently the defendants from a course of conduct which
it is claimed, if persisted in, must inevitably bring
financial ruin upon the plaintiff.
The defendants here are steamship companies
(operating steamships between the port of New York
and various ports of the world) and some of their
employees, agents, brokers and stevedores, and the
oflScers and agents of the International Longshore-
men's Union, Local 975, International Brotherhood of
Teamsters, Local Union 807, The Greater New York
Lumber Handlers' Union, 17122, and the Transporta-
tion Trades Council of the Port of New York.
There is little dispute about the facts. The plaintiff
was an employer of non-union men. A demand was
made upon it by the Teamsters' Union and the Lumber
Handlers' Union to unionize its plant. This it
refused to do, although it made no objection to its
employees becoming members of the union. Being
unable to induce the plaintiff to employ exclusively
men who were members of the union, various of the
defendants entered upon a plan to force a compliance
with the demands of the union. The officers of the
union, with conmaendable frankness, stated at the trial
that it was their determination to ** fight to a finish,"
and that this was a case of the ** survival of the fit-
Digitized by
Google ^^
676 Burgess Bros. Co., Inc., v. Stewart.
Supreme Court, March, 1921. [Vol. 114.
test,*' which could only mean that it was the deter-
mination of the union to bring financial ruin upon
plaintiff if it did not submit to the demands of the
union.
The proof here shows that all the longshoremen in
the port of New York, including checkers, weighers
and handlers of freight, are members of the Inter-
national Longshoremen's Association, and, although
this association had made no demands upon the plain-
tiff, its members were directed to refuse to receive or
handle any of plaintiff's lumber, unless plaintiff's
trucks were driven by members of the Teamsters'
Union. The result was that plaintiff was unable to
ship any of its products. All the employees of the
stevedores and of the steamship companies engaged in
receiving and handling lumber were members of the
Longshoremen's Union. Their action in refusing
plaintiff's shipments was, in each instance, immedi-
ately called to the attention of the representatives of
the owners of the steamships. There was no ques-
tion of available space on the various steamships, as
plaintiff had invariably procured from the representa-
tives of the steamships reservations of space and
directions to the receiving clerks to accept the plain-
tiff's lumber for shipment; and although some of the
defendants attempted to show that shipments were
refused because of lack of space, it is apparent that
this was purely a subterfuge for the purpose of evad-
ing responsibility for what they conceived to be an
illegal course of conduct.
The defendant the Transportation Trades Council
is an advisory body, having no power to call strikes,
but it acts in an advisory capacity and was charged
with the duty of seeing that the various labor locals
co-ordinated to force recalcitrant employers to meet
the demands of the union. Delegates to this body
Digiti
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Burgess Bbos. Co., Inc., v. Stewart. 677
Misc.] Supreme Court, M&rch; 1921.
come from the various locals in the port of New York.
This organization passed a resolution which provided
that none of the local unions should handle non-union
goods or any goods transported by firms, corporations
or individuals who refused to employ union men, or
should contract to transi)ort their goods at union
terms.
The conditions prevailing in the port of New York
at the time in question were and are a matter of com-
mon knowledge. There was a great shortage of labor,
due to the then existing abnormal conditions. Steam-
ship owners were at the mercy of the labor unions,
and they felt, no doubt, that it was more profitable to
tolerate, and, in fact, to openly countenance the unjust
and illegal acts of the unions, than to discourage those
of their employees who refused to handle plaintiff's
lumber.
It would be strange, indeed, if the law is so impotent
as to furnish no relief from a condition forced upon
it, which, if continued, must inevitably bring financial
ruin upon the plaintiff. Plaintiff has been guilty of
no wrongdoing, but is engaged in a lawful pursuit. The
plaintiff is not required to await the result of crim-
inal proceedings, and allow its business to be ruined
in the meantime, but may proceed by civil action to
prevent the continuance of a wrong when the wrong
is the result of a conspiracy in violation of the criminal
law. Rourke v. Elk Drug Co., 75 App. Div. 145;
Kellogg v. Sowerby, 190 N. Y. 370. The conduct of
those engaged in this unlawful discrimination has not
and cannot be justified.
It is the purest sort of sophistry to argue that a
decision here adverse to the labor unions is a viola-
tion of the Federal Constitution in that it imposes
involuntary servitude upon the employees of various of
the defendants. There is no suggestion that any of
Digiti
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678 BuBGESs Bbos. Co., Inc., v. Stewabt,
Supreme Court, March, 1921. [VoL 114.
the employees are compelled to work for these defend-
ants. Their right to work for whom they please, and
when they please, is inalienable, and any judgment of
the court to the contrary could not stand ; but it would
be absurd to permit the employees to continue on a
course of conduct which makes the steamship owners
guilty of a violation of the statute in discriminating
unlawfully against the shippers of goods. If such a
course of conduct is countenanced it must, if carried
to a logical conclusion, result in destroying all who
do not employ union men, coercion greater, in fact,
than that of which some of the defendants are now
complaining.
The various acts of the defendants amount, in law,
to a conspiracy against the plaintiff. The approved
definition of a conspiracy is found in Pettibone v.
United States, 148 U. S. 197, and approved in Duplex
Printing Press Co. v. Deering, U. S. Supreme Court,
Advance Opinions, February 1, 1921, p. 176. It is:
'* A combination of two or more persons by concerted
action to accomplish a criminal or unlawful purpose or
some purpose not in itself criminal or unlawful, by
criminal or unlawful means. *^
Those defendants who were owners or agents of
steamships were required to serve the public without
discrimination, and if their employees continued volun-
tarily in their service the same obligation rested also
upon the employees. This record is barren of any
evidence which would indicate a desire on the part of
the steamships* representatives to receive or handle
plaintiff's lumber. They did not discharge or
reprimand any of their employees for discriminating
against plaintiff but openly sanctioned such conduct
and connived at it, on the theory no doubt that it was
better that plaintiff should suffer than that the move-
ment of freight in the port be ** tied up.'* The con-
Burgess Bros. Co., Inc., v. Stewart. 679
Misc.] Supreme Court, March, 1921.
certed action both of the employer and the employees
leads to the accomplishment of an unlawful act, i. e.,
that of violating both the United States Shipping Act
(39 U. S. Stat, at Large, 728) and the United States
Criminal Code, section 37. The Shipping Act, in so
far as it is applicable to the situation, is as follows :
*' Sec. 14. That no common carrier by water shall
• • * unfairly treat or unjustly discriminate
against any shipper in the matter of (a) cargo space
accommodations or other facilities, due regard being
had for the proper loading of the vessel and the avail-
able tonnage; (b) the loading and landing of freight
in proper condition; or (c) the adjustment and settle-
ment of claims. Any carrier who violates any pro-
vision of this section shall be guilty of a misdemeanor,
punishable by a fine of not more than $25,000 for each
offence.
*' Sec. 16. That it shall be unlawful for any com-
mon carrier by water, or other persons subject to this
Act, either alone or in conjunction with any other per-
son, directly or indirectly —
^^ First. • • • to subject any particular per-
son, locality, or description of traffic to any undue or
unreasonable prejudice or disadvantage in any re-
spect whatsoever.
''Second. • • •
** Sec. 17. • • • Every such carrier and every
other person subject to this Act shall establish,
observe, and enforce just and reasonable regulations
and practices relating to and connected with the re-
ceiving, handling, storing, or delivering of property.**
This statute is declaratory of the common law, which
placed an obligation upon the common carrier to serve
the public without discrimination. A carrier cannot
avoid this responsibility. It is no answer to a charge
of misconduct amounting to a discrimination to say
that the unlawful act is that of an employee. It waft
Digiti
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680 Burgess Bros. Co., Inc., v. Stewart.
Supreme Court, March, 1921. [Vol. 114.
the duty of the employers to find those who would
handle all goods offered for shipment, and if those
employed to do that work refused there could be no
other alternative but to discharge such employee even
though it may have led to a great financial loss to
the steamship owners and inconvenience to the public.
The employee is the alter ego of the principal and any
act of the employee in violation of the common law,
or of the statute, is the act of the principal, for which
the principal is liable.
We have, therefore, a situation where the repre-
sentatives of the union openly state that there was an
avowed purpose on the part of the union to force
plaintiff to submit to its demands or suffer the penalty
of financial ruin. The price demanded by the union
was that all of plaintiff's employees be members of the
union. This plan could not be effectually carried out
without the co-operation of the steamships' repre-
sentatives. A defiance by them of the union would
have frustrated the plan, and while it has not been
shown here that there was an agreement between the
representatives of the steamship companies and the
union to refuse plaintiff's products, there is sufficient
evidence of their approval of, the connivance at, and
the sanctioning of, the acts of the employees as to
amount to an overt act on the part of the steamship
companies. For these reasons they may be properly
regarded as a party to the unlawful combination.
The views herein expressed do not conflict with the
decisions in thoReardon cases {Reardon, Inc., v. Caton,
189 App. Div. 501; Reardon v. International Mercan-
tile Marine Co., Id. 515). In the first of these cases
neither the employers, common carriers nor shippers
of freight were made parties; and in the second of
these cases there was no suggestion that a conspiracy
between the common carriers or the employees wa9
Digiti
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BuBQEss Bbos. Co.y Inc., v. Stewakt. 681
Misc.] Supreme Court, March, 1921.
pleaded, and the labor unions were not parties
defendant.
I do not regard what has been said in the Reardon
cases as controlling here. The most that can be
claimed for them is that, upon the facts presented, the
court held that the injunction granted at Special Term
was improper. But a careful analysis of all the opin-
ions written in those cases will show that the majority
of the court agrees with the contentions herein made.
In Reardon, Inc., v. Colon, supra, no common carrier
was joined as party defendant. The question of an
unlawful discrimination was not, therefore, before the
court. Presiding Justice Jenks and Justice Rich con-
curred in the prevailing opinion, while Justices Putnam
and Mills dissented. In Reardon v. International Mer-
cantile Marine, supra, however, Mr. Justice Rich was
of the opinion that the carrier should have received
the freight when offered, and, therefore, concurred
in the dissenting opinion of Mr. Justice Mills, while
Mr. Justice Putnam concurred in the reversal solely
because there had been a reversal in Reardon, Inc., v.
Caton, and, inasmuch as the actions were closely
related, he held that consistency required a reversal
in the latter case. The reasoning of the majority of
the court leads to the conclusion that had the unions
and common carriers been joined as parties defend-
ant, as in this case, the court would, upon the facts
shown in the two cases, have sustained the injunction
granted at Special Term.
Some of the defendants here in their briefs admit
that the facts in this case are ** almost exactly similar*^
to the facts in Buyer v. Guillan. I concede the
similarity in facts. The lower court in that case
refused an injunction, but since the preparation of
the briefs before me, the Circuit Court of Appeals has
unanimously reversed the decision of the lower court
and directed that an injunction issue.
Digiti
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682 KUSSOLD V. BEHBMAlfr.
Supreme Court, March, 1921. [Vol. 114.
It is apparent that plaintiff will suffer irreparable
damage for which it has no proper or adequate remedy
at law, unless an injunction issue, and as the Ship-
ping Act (§ 16) is broad enough to include agents,
stevedores, receiving clerks, etc., the injunction will
run against all the defendants.
Ordered accordingly.
Louis Kussold and Frank Petsohe, Plaintiffs, v.
Jacob Behbmak and Aubanese Salvatohe, Defend-
ants.
(Supreme Court, Kings Special Term, March, 1921.)
JudgmentB — proceedings for sale of infants' real estate — title —
specific performance — Oode Oiv. Pro., §§ 1646, 1679.
The complaint in an action brought against infants under
section 1638 et aeq. of the Code of Civil Procedure to compel
a determination of their adverse claims to plaintiffs' title to
certain real property set forth a proceeding for the sale of
defendants' interest in the property, alleged that a sale thereof
by their mother, as special guardian, was in good faith and for
full consideration, and that a reconveyance of the property to
her individually, who conveyed to plaintiffs, was made in good
faith ''and for the interest and welfare of the defendants.''
Judgment was entered in favor of plaintiffs forever barring the
defendants from all claims to any estate, right, title or interest
in and to the property. The vendee named in a contract for the
sale of the property objected to the title as unmarketable on the
ground that a finding of the court that the sale of the property
to the mother was made ''in good faith and for the interest
and welfare of defendants" impressed some kind of a trust
upon the property for the benefit of the infants. Held, that
the answer to such contention was, that reading the quoted
words in connection with the findings and judgment as a whole,
which negatived any declaration of trust in favor of the infants,
they meant simply that the infants' proceeding in its entirety,
including the sale and disposition of the infants' interest in
the property, was for their interest and welfare.
Digiti
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KussoLD V. Behrmak. 683
Mise.] Supreme Courts March, 1921.
The findings of the court in the other action, that the spe-
cial guardian ''duly" sold the defendants' interest and that
such sale, which was directly approved in the infants' proceed-
ing, was made " in good faith and for a valuable and full con-
sideration " was binding on the court in the present action and
was an answer to a contention that any deed to the mother, as
purchaser, was void under section 1679 of the Code of Civil
Procedure, and that her deed to plaintiffs conveyed nothing.
Section 1646 of the Code of Civil Procedure does not confer
upon infants an absolute right to a new trial, and a contention
that such a right was sufficient of itself to render the title un-
marketable, is untenable, and in a vendor's action to compel
specific performance of a contract for the sale of the property
the plaintiffs are entitled to judgment.
Action by vendors to compel specific performance
of a contract for the sale of real estate.
Stephen F. Burkard, for plaintiffs.
Nathan D. Shapiro, for defendants.
Kapper, J. Plaintiffs sue to compel specific per-
formance by the defendants, their vendees named in
a contract for the sale of real property. Objections
to the marketability of the title were presented upon
the trial by the defendants. The following facts
appear : One Max Singer died intestate in 1910 seized
of an undivided one-half interest in the property. He
left as his only heirs-at-law seven infant children. In
1911 a proceeding was instituted in this court for the
sale of the said interest of said infants, and their,
mother, MoUie Singer, was appointed their special
guardian. Thereafter and pursuant to an order made
in said proceeding the said special guardian sold and
conveyed the infants' interests in said property to
Julius Pearson and Morris Gerstenf eld by deed dated
February 24, 1912. Two days later the said grantees
reconveyed said property to said MoUie Singer,
Digiti
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684 KussoLD V. Behbmak.
Supreme Court, March, 1921. [Vol. 114.
individually, and she in turn conveyed to the plain-
tiffs herein by deed dated January 25, 1913. In Janu-
ary, 1920, the plaintiffs herein brought an action in
this court (which will hereinafter be referred to as
Kussold V. Singer) against the said infant heirs of
said Max Singer, deceased, under the provisions of
article 5 (§§ 1638 et seq.) of the Code of CivU Pro-
cedure, to compel a determination of their adverse
claims to plaintiffs' title. The complaint sets forth
the said proceeding for the sale of the interests of
said infants in said property and alleged that the sale
by the special guardian, MoUie Singer, to said Pearson
and Gerstenf eld was in good faith and for full con-
sideration, and that the sale by them to said Mollie
SiQger was made in good faith ** and for the interest
and welfare of the defendants." Jurisdiction of said
infants was duly obtained and a guardian ad litem
appointed who thereafter qualified and interposed the
usual guardian's answer. The action was tried at a
Special Term of this court in May, 1920, the guardian
ad litem appearing and representing said infants on
the trial. Thereafter, and on May 28, 1920, the court
made and filed its findings and decision whereby judg-
ment was awarded to the plaintiffs forever barring
the defendants from all claim to any estate, right, title
or interest in and to the said property and judgment
was entered accordingly. The fifth and sixth findings
were as follows: ** V. That the sale of said real prop-
erty so made by Mollie Singer as such special guardian
to said Julius Pearson and Morris Gerstenf eld was
made in good faith and for a valuable and full con-
sideration, and the sale of said real property by said
Julius Pearson and Morris Gerstenfeld to Mollie
Singer was made in good faith and for the interest
and welfare of the defendants. VI. That the sale
of said real property by Mollie Singer to the plain-
Digiti
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KussoLD V. Behbmak. 685
Mise.] Supreme Court, March, 1921.
tiffs in this action was made in good faith and for a
full and adequate consideration, and the purchase
price of said real property paid by the plaintiffs to
said MoUie Singer was used by her for the support,
maintenance and education of the defendants during
their minority.'* Notwithstanding such judgment in
the action of Kussold v. Singer the defendants at bar
assert that the title is unmarketable. Their first objec-
tion seems to be that the words in the fifth finding '^ in
good faith and for the interest and welfare of the
defendants ^' impress some kind of a trust upon the
property for the benefit of the infants. While the
argument of defendants' counsel in this connection
seems rather involved, I think the answer to any such
contention is that the quoted words must be read in
connection with the findings and the judgment as a
whole, and when so read the words mean simply that
the said infants' proceeding in its entirety, including
the sale and disposition of the infants' interest in the
property, was for their interest and welfare. More-
over, the form of the judgment negatives the conten-
tion that the court intended, by its findings and deci-
sion, to declare a trust in favor of the said infants. The
defendants next claim that the testimony in the action
of Kussold V. Singer discloses that Pearson and Ger-
stenf eld paid no consideration whatever for the said
transfer to them by the special guardian; that this
fact, together with the fact that they reconveyed the
property to her individually two days later, stamps
the transaction as colorable and strongly indicates
that the special guardian herself was the real pur-
chaser; and, therefore, that any deed to herself as
purchaser was void under section 1679 of the Code,
with the result that her deed to the plaintiffs in this
action conveyed nothing. The answer to this conten-
tion is found in the court's findings to the effect that
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686 KussoLD V. Behbmak.
Supreme Court, March, 1921. [Vol. 114.
the special guardian ** duly ^^ sold the infants' interest
to said Pearson and Gerstenfeld and that such sale
was made ^' in good faith and for a valuable and full
consideration.'*^ I am bound by this finding. More-
over, the said sale to Pearson and Gerstenfeld was
directly approved by the court in the infants' pro-
ceeding. The principal contention, however, is that
the infant defendants in the action of Kussold v.
Singer have an absolute right under section 1646 of
the Code to a new trial and that this right is of itself
sufficient to render the title unmarketable. Section
1646 is as follows: '* A final judgment in favor of
either patrty, in an action brought as prescribed in
this article, is conclusive against the other party, as
to the title established in the action ; and also against
every person claiming from, through, or under that
party, by title accruing after the filing of the judg-
ment-roll, or of the notice of the pendency of the
action, as prescribed in article ninth of this title. A
new trial of said action after judgment shall not be
granted as a matter of right, but the court may, in its
discretion in the interest of justice, grant a new trial
upon an application made by any party within one
year after said judgment. But where a defendant is
an infant, an idiot, a lunatic, an habitual drunkard,
or imprisoned on a criminal charge or in execution
upon conviction of a criminal offense for a term less
than Ufe, the said defendant shall have the right,
within one year after his disability is terminated, to
apply for and obtain a new trial of said action, and
the representatives of such a defendant shall have the
same right within one year after the death of said
defendant, if such death occurs while the disability
continues. Upon any new trial of an action, brought
as prescribed in this article, the record of the evi-
dence given upon the previous trial, may be again
Digiti
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KussciLD V. Behrman. 687
Hise.] Supreme Court, March, 1921.
offered to the court by either party, and may be
received in evidence, in case the same evidence can-
not be again procured. The courts may make such
rules and orders as to preserving the record of the
evidence given in such actions and perpetuating the
proofs produced therein, either with or without the
awarding of any other relief to the party whose
proofs are so perpetuated, as shall be necessary or
proper, and may embrace such directions in the judg-
ment/' Section 1646 of the Code does not seem to
me to confer upon infants an absolute right to a new
trial. In the case of infants the section simply dis-
penses with the necessity of making the application
within one year after the judgment and permits the
application to be made within one year after the dis-
ability is terminated when the application may or
may not be granted as the interests of justice may
require. However this may be, I think the rule
formerly adopted in ejectment cases is here applica-
ble. Prior to its repeal (Laws of 1911, chap. 509)
section 1525 of the Code mandatorily required the
court, upon application made within a stated period,
to vacate the judgment and award a new trial in eject-
ment. Nevertheless, title has been held marketable
and specific performance has been decreed despite
the possibility of a second trial under this section.
Haffey v. Lynch, 143 N. Y. 241. In the case cited it
was said (p. 248): ** Here the plaintiff was willing
to take such a title as the defendant could convey at
the trial. The ejectment suit had finally resulted in
favor of the defendant. The lis pendens had ceased
to be operative, and could, if necessary, have been
removed. The fact that Jarvis could have paid the
costs and taken a new trial under the statute is of no
importance. There was final judgment against him,
and the contingency that he might take a new trial ia
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688 KussoLD t;. Behbmak.
Supr^ne Court, March, 1921. [Vol. 114.
of no more importance than the contingency that some
other person might at some time commence an action
to recover the same land. Equity courts, in award-
ing relief, generally look at the conditions existing at
the close of the trial of the action and adapt their
relief to those conditions/* See, also, Rosenberg v.
Haggerty, 189 N. Y. 485. In the Haffey Case, supra,
the first action in ejectment had resulted in a judg-
ment of dismissal. In the present, as already stated,
the infants were barred by a judgment against them
from all claim to the property in question. The situa-
tions are not dissimilar. The rule announced in the
Haffey case, notwithstanding the mandatory char-
acter of section 1525, seems to me to be determinative
in this case where section 1646, as I read it, is
permissive only. Defendants also suggest that the
bond required of the special guardian in the infants'
proceeding was insufficient in amount under rule 57.
The contention, I presume, is based upon the fact that
the interest of the infants was sold for $500 while the
bond was for the sum of $1,000 only. Even if it be
assumed that the point can be raised in this action,
there is no proof before me that the bond was not suf-
ficient in the light of the information in the possession
of the court when the amount was fixed. No author-
ity is presented to the effect that exact mathematical
accuracy in the fixation of the amount of the bond is
a prerequisite to jurisdiction.
Judgment for plaintiffs, with costs*
Postal Tel. Cable Co. v. City of Ja
Miso.] Supreme Court, March, 1921
Postal Telegraph Cable Company, P; i
OF Jamestown, Defendai
(Supreme Court, Chautauqua Special Term [
Kew trial — newly discovered eridenoe — when i
trial denied — evidence — judgments.
New trials are granted because of newly
for the purpose of giving to a party the be i
which he wae unaware at the time of the pk
for the purpose of permitting a defendant
out a controversy.
The essential characteristic of newly disi i
that it was unknown at the time of pleadin
come to light since.
Where the judgment in favor of plaintiff i i
a municipality has been unanimously affin
late Division and leave to appeal has been i
Api>ellate Division and the Court of Ap;
should not be put to the trouble and expe
simply because the defendant was unable U
a part of its public records, of which it ki
its answer and had within its control, and f i
trial upon the ground of newly discovere
denied, with costs.
Motion for new trial on the gromn i
covered evidence.
Ernest Cawcroft, for motion.
James 0. Moore, opi)osed.
WooDWABD^ J. This action was <
menced in April, 1915, It was discontii
action commenced on the 6th day of S(
The action came on for trial in Decemb*
ing in a judgment in favor of the pi
690 Postal Tel. Cable Co. v. City of Jamestown-.
Supreme Court, March, 1921. [Vol. 114.
npon the findings of fact and conclusions of law made
by the court. The defendant appealed to the Appel-
late Division of the Supreme Court, where the judg-
ment was unanimously affirmed. An application was
made to the Appellate Division for permission to
appeal to the Court of Appeals and denied, and a like
result followed an application made to the Court of
Appeals.
With a judgment thus finally approved by all the
courts having jurisdiction within the state of New
York, the defendant in November, 1920, moved this
court for a new trial on the ground of newly-discov-
ered evidence, and the question here under considera-
tion is whether or not that motion should be granted.
The proceedings of the common council on June 24,
1894, which is the alleged newly-discovered evidence,
contain the following paragraph, upon which the
defendant relies to overturn the result deliberately
reached in this action: *' It is understood that some
of the poles which are to be set by said applicants are
to take the places of poles now used by the City, and
that such poles are to be carefully taken down and
taken away by the said companies to such part of the
City as its officers shall direct, and the wires shall be
carefully strung and set upon the poles and on each
and all the poles set under this permit and the City
shall have the right to attach any municipal wire
used by it for any purpose, and that the City shall
have the right to use for such purpose the upper two
feet of each and every said pole.^'
Just how this could aid us in determining that the
plaintiff agreed that the defendant should have such
use without compensation, does not clearly appear.
This question was fully considered upon the trial;
the determination made upon the whole evidence, and
if this alleged new evidence had appeared in the ease
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Postal Tel. Cable Co. v. City of Jamestowk. 691
Misc.] Snpreme Court, March, 1921.
it is not at all certain that it would have changed the
result. Of course it might have opened the way to
further evidence, but that is not suggested in the
moving papers, and it seems very doubtful, as we
recall the evidence, whether the matter now brought
forward would have had any appreciable effect upon
the issues determined.
But is this newly-discovered evidence entitling the
defendant to the privilege of a new trial f The def end-
ant 's answer alleges that ** long prior to the com-
mencement of this action, an agreement was entered
into by and between the parties to this action by
which each agreed to afford the other reciprocal use
of poles, and being the poles or a portion of the poles
referred to in the complaint, and the agreement, if not
signed by this plaintiff, was signed by a corporation
to whose rights in the poles referred to in the com-
plaint, or some of them, this plaintiff succeeded.''
This evidently referred to the matter now urged as
newly-discovered evidence, but the essential character-
istic of newly-discovered evidence is evidence which
was unknown at the time of the pleading or trial, and
which has come to light since that time. A thing can-
not be newly discovered which is already fully known.
The defendant knew about this evidence at the time
it put in its answer ; it was a part of the public records
of the city of Jamestown — a part of the proceedings
of its common council which the law requires to be
published and preserved — and the fact that it was
not found upon a more or less careful search does
not give it the character of newly-discovered evidence.
New trials are granted because of newly-discovered
evidence for the purpose of giving to a party the bene-
fit of evidence of which he was unaware at the time
of the pleadings or trial, not for the purpose of per-
mitting a defendant to needlessly drag out a con-
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692 Postal Tbl. Cable Co. v. City of Jambstowk.
Supreme Court, March, 1921. [Vol. 114.
troversy, and the fact that this evidence was found
long after the determination of the case, both npon
the trial and the appeals, is not calculated to move
the court to grant the motion for a new trial. The
evidence was not only known to the defendant at the
time of entering its pleadings, but it was actually in the
defendant's custody and control and a reasonably
diligent search must have discovered it to the person
making such search. It was the duty of the city clerk
to have had such a record where it was available.
The law presumes that duty to have been discharged,
and the plaintiff having succeeded in establishing its
cause of action, and maintaining it through the
appeals, should not be put to the trouble and expense
of a new trial simply because the defendant was unable
to produce the evidence which it concededly knew
about and had within its control.
In Fisher v. Corwvn, 35 Hun, 253, Mr. Justice Barker
declared that the ** practice has been, before and since
the adoption of the first Code, not to entertain motions
of this character after appeal from final judgment.
The current of the decisions are not to entertain the
motion after the entry of judgment, and it was so
held in Jackson v. Chase (15 Johns. 354) ; Rapelye v.
Prince (4 Hill, 125); Sheldon v. Stryker (27 How.
Pr. 387) ; Peck v. HiUer (30 Barb. 656) ; Nash v. Wet--
more (33 id. 155); Lawrence v. Ely (38 N. Y. 42). '^
See, also, Davis v. Grand Rapids Fire Ins. Co., 7 App.
Div. 403, 405, and authorities there cited.
The motion should be denied, with costs.
Motion denied, with costs.
Mattbb of Abthub Henry Gatfken. 693
Mise.] Surrogate's Court, Kings County, Mareh, 1921.
Matter of Proving the Last Will and Testament of
Arthttr Henby Gaffken, Late of the County of
Kings, Deceased
(Surrogate's Court, Kings County, March, 1921.)
Wilb — when may be admitted to probate — testamentary pro-
visions— Decedent Estate Law, § 86.
A testamentary provision in the will of an unmarried testa-
tor for one who was his wife at the time of his death is a pro-
yifidon for his " wife " within the meaning of section 35 of the
Decedent Estate Law, as amended in 1919, and the will may
be admitted to probate subject to the rights of testator's son,
not mentioned in the will, as provided in such statute.
Pboceeding upon the probate of a will.
Harry W. Kouwenhoven, for proi)onent.
Herbert Parsons, for contestant.
WiNGATE, S. The determination as to whether the
will propounded for probate is revoked by marriage
and birth of issue after its making is controlled by
the law in force at the date of the testator's death.
The intention of the legislature, by the amendment
in 1919 to section 35 of the Decedent Estate Law,
seems to have been to provide that a will is revoked
under the conditions specified in that section only as
to such of the class of wife and issue as are not
provided for in the will or by some settlement, or in
such way mentioned in the will as to show an inten-
tion not to make such provision. The provision in
the propounded paper for Marie Louise Krom, who
was the testator's wife at the time of his death, is a
provision for his wife within the meaning of this
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694 Matteb of Gusxav H. Kuktzsgh.
Surrogate's Court, New York Connly, March, 192L [ VoL 114.
statute, and as to her the will of the decedent is not
revoked.
There is concededly no provision for decedent's
son contained in the will now before the court or in
any settlement, nor is any mention made of him in the
will. He is, accordingly, entitled to the same rights
in the estate of the decedent as would be his if such
will had not been made.
The will is admitted to probate subject to the rights
of the testator's son as provided in the statute cited
supra.
Probate decreed.
Matter of the Estate of Gustav H. Kuntzsoh,
Deceased.
(Surrogate's Court, New York County, March, 1921.)
Ezacatorg and administrators — alien enemies — Trading with
the Enemy Act, § 7.
A proceeding under section 7 of the Trading with the Enemy
Act, on behalf of an alleged widow who is a resident citizen
of Germany, to revoke letters of administration granted upon
the estate of her alleged husband, cannot be further prose-
cuted until peace is formally declared.
Application to revoke letters of administration.
Arnold & Greene, for petitioner.
David C. Lewis, for Hnlda W. KnntzsclL
Foley, S. This proceeding, begun by the filing of
a x>etition and the issuance of a citation, must be
deemed to be a special proceeding within subdivision b
of section 7 of the Trading with the Enemy Act It is
PLYltdtTTH tiUBBEB Co. V. KjSOTt. 698
Misc.] Mimicipal Court of New York, March, 1921.
an application to revoke letters of administration. The
petition is by the Swiss consul in charge of German
interests on behalf of an alleged widow who is a
German citizen and resident of Germany. ** The law
is well settled that an alien enemy, resident in the
enemy's country, cannot during the war prosecute an
action in our courts. '^ Jackson v. Decker, 11 Johns.
418 ; Bell V. Chapman, 10 id. 183 ; Sanderson v. Morgan,
39 N. Y. 231 ; Kershaw v. Kelsey, 100 Mass. 561 ; Roth-
harth v. Herzfeld, 179 App. Div. 865; aflfd., 223 N. Y.
578; FarenhoUz v. Meinshausen, 181 App. Div. 474;
Hungaria/n General Credit Bank v. Titus, 182 id. 826.
The proceeding, therefore, cannot be further prose-
cuted until peace is formally declared. The other
objections to the petition will be considered when the
proceeding can be properly submitted to the attention
of the court. Settle order on notice suspending further
proceedings herein as indicated. The order should
also restrain the administrlEitrix from making any dis-
tribution of the estate pending the disposition of this
proceeding.
Decreed accordingly.
Plymouth Bubbeb Company, Plaintiff, v. David H.
Knott, etc., Amebigan Subety Company, etc..
Defendants.
(Municipal Court of the City of New York, Borough of Manhattan,
Ninth District, March, 1921.)
Ooniracts — when consignment of merdumdise npon conditiona
not conditional sale — title in consignor — attachment — con-
▼enion — damages — Personal Property Law, § 62.
An agreement for the consignment of merchandise upon con-
ditions -therein stated is not such a contract for the conditional
sale of goods and chattels as is required, hy section 62 of the
Personal Property Law, to be filed.
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696 J^LYMOUTH ttxJBBEB Co. V. KnOTT.
Municipal Court of New York, March, 1921. [Vol. 114.
Under such an agreement the title to the goods remains in
the consignor and they are not subject to attachment by a
creditor of the consignee.
Where a sheriff's jury finds that certain goods, when at-
tached in an action against the consignee, were the property
of the consignor, the plaintiff, in an action against the sheriff
or his surety on a bond for a return of the goods, for a wrt>ngr-
ful conversion, is entitled to recover as damages the higrl^est
value of the goods between the time of the conversion and the
trial of the action.
Action for damages.
Charles B. Ailing, for plaintiff.
Bennett E. Siegelstein, for defendant.
Genung, J. This is an action for damages for
wrongfully seizing and taking into his possession cer-
tain rubber goods, claimed to be the property of the
plaintiff, and for the value of the said rubber goods,
brought against the sheriff of the county of New York,
for whom the American Surety Company of New York
has been substituted as defendant.
The rubber goods in question were shipped by the
plaintiff to one Smith, who had a place of business
at 132 West Broadway, New York, under invoices,
marked ** consigned to '^ Smith. These consignments
were all made pursuant to an agreement between the
plaintiff and Smith, dated September 10, 1919. This
agreement was made between the plaintiff, designated
as '* consignor," and Smith, designated as ** con-
signee," and provided: ** The consignor upon accept-
ance of orders placed with it by the consignee agrees
to furnish the consignee its goods upon the following
terms and conditions :
*' (1) The title to all goods so furnished to the
consignee shall remain in the consignor until a sale
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Plymouth Eubbbr Co. v. Knott. 697
Misc.] Municipal Court of New York, March, 1921.
thereof shall have been effected by the consignee, and
until such sale, the consignee agrees to keep the said
goods of the consignor insured * * * for the bene-
fit of the consignor * * *.
** (2) No credit shall be given by the consignee to
any of his customers for a greater length of time than
ninety (90) days without the written consent of the
consignor * * *.
** (3) The consignee shall keep a separate set of
books in which he shall enter all goods received from
the consignor * * *.
** (4) Upon the sale by the consignee of any of the
goods consigned hereunder, the consignee shall forth-
with forward to the consignor the funds received by
him therefor, after first deducting, however, for his
own use and benefit the difference between the price
at which the goods were consigned to him by the con-
signor and his sale price to the customer.
*' (5) In the event of a sale by the consignee of the
goods of the consignor where shipment is requested
and made direct to a customer of the consignee and
the goods billed to the consignee by the consignor,
such goods so shipped and billed shall be subject to
and under all the terms and conditions of this agree-
ment.
** (6) All goods shipped by the consignor to the
consignee prior to the date of execution of this agree-
ment and now in the possession of the consignee now
unsold shall be subject to and under all the terms and
conditions of this agreement.
** (7) In the event of a sale by the consignee of
the goods of the consignor where shipment is requested
and made direct to the customer of the consignee
and the goods billed to the customer, the said con-
signee hereby guarantees the payment of such
ftoop^^tg • • •,**
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Municipal Court of New York, March, 1921. [Vol. 114.
After the making of this agreement, in December,
1919, an action was commenced in the Supreme Court,
New York county, against the said Smith by Gold-
berg & Freud, for goods sold and delivered in the sum
of $2,477.05, and an attachment was issued to the
sheriflf of the county of New York against the property
of the said Smith. The sheriff attached certain rub-
ber goods in the place of business of the said Smith,
at 132 West Broadway. A claim was made '* in behalf
of '* the plaintiff for the rubber goods. The said
Smith did not appear in the action, and, after service
had been perfected against him, a judgment was
entered by default in the sum of $2,691.42. There-
after, on July 26, 1920, the sheriff sold the said rubber
goods for $410, said Goldberg & Freud having filed
a bond issued by the American Surety Company of
New York. The plaintiff made claim to the said rub-
ber goods and a sheriflf 's jury found that such rubber
goods belonged to the plaintiflf at the time of said
attachment by the sheriff of the county of New York.
Thereafter an additional bond was issued by the
American Surety Company of New York and a demand
was made on the sheriflf of the county of New York for
the return of said rubber goods, and upon his failure
to comply therewith the plaintiflf brought this action
in conversion.
The defendant claims that the plaintiflf has failed to
prove by a preponderance of the evidence that the
rubber goods attached by the sheriflf were its property.
The plaintiflf has stipulated that the agreement of
September 10, 1919, has not been filed in either the
office of the county clerk or the register of the county
of New York, nor has a conditional bill of sale or-
chattel mortgage been filed. The defendant claims
that the agreement of September 10, 1919, is required
to be filed by the statute (Pers. Prop. Law [ConsoL
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PLYMOtJTH BUBBEB Co. V. KnOW. 699
Misc.] Municipal Court of New York, March, 1921.
Laws, chap. 40], § 62), and the alleged agreement
not having been filed either as a conditional bill of
sale or as a chattel mortgage is of no force and effect,
in so far as third parties are concerned.
Section 62 of the Personal Property Law provides :
** Except as otherwise provided in this article, all
conditions and reservations in a contract for the
conditional sale of goods and chattels, accompanied
by delivery of the thing contracted to be sold, to the
effect that the ownership of such goods and chattels
is to remain in the conditional vendor or in a person
other than the conditional vendee, until they are paid
for, or until the occurrence of a future event or con-
tingency shall be void as against subsequent pur-
chasers, pledgees or mortgagees, in good faith, and as
to them the sale shall be deemed absolute, unless such
contract of sale, containing such conditions and reser-
vations, or a true copy thereof, be filed as directed in
this article, and unless the other provisions of the
lien law applicable to such contracts are duly complied
with. • • • >'
The agreement of September 10, 1919, is not such
a contract for the conditional sale of goods and chat-
tels as is required by the foregoing provision of the
statute to be filed. There is no provision of law requir-
ing that such a contract be filed. The Factor's Act
(Pers. Prop. Law, § 43) is not applicable nor is any
other section of the Personal Property Law. It is an
agreement for consignment of merchandise by the
plaintiff to Smith under the conditions therein stated.
Such consignments and the rights of the parties
thereto have been defined by the courts. Rolker v.
Oreat Western Insurance Company, 4 Abb. Ct. App.
Dec. 73; Seymour v. Wyckoff, 10 N. Y. 213; Baker v.
Nat. Exchange Bank, 100 id. 31 ; Commercial National
Bank v. HeUbronner, 108 id. 439 ; Britton v. Ferrin, 171
Digiti
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700 Plymouth Bubbeb Co. v. Knom.
Municipal Court of New York, March, 1921. [Vol. 114.
id. 235. It has been held that in certain cases goods
shipped on consignment cannot be seized under an
attachment. Moore v. Hillahrand, 16 Abb. N. C. 477 ;
Hampton d B. R. <& Lumber Co. v. Sizer^ 31 Misc.
Rep. 499; Marine v. Jauncey, 1 Barb. 486; Francklyn
V. Spragtie, 10 Hun, 589; Converseville Co. v. Cham-
hersburg Woolen Co., 14 id. 509. As the agreement of
September 10, 1919, was not required by statute to be
filed, the title to the rubber goods remained in the
plaintiff, and the said rubber goods were not subject
to attachment by a creditor of the consignee.
The regular rule of damages in an action for con-
version is applicable to this case, that for a wrongful
conversion of property where there is a rise in the
value of the chattel after the conversion, the plain-
tiff may recover the highest intermediate value
between the time of the conversion and the time of
the trial. Romaine v. Van Allen, 26 N. Y. 309 ; Burt v.
Butcher, 34 id. 493; Scott v. Rogers, 31 id. 676; Groat
v. Gile, 51 id. 442. The value of the rubber goods at
the time of the attachment was as follows : 1,353 pairs
of black toesans at forty-eight cents, and 238 pairs of
tan toesans at seventy-one cents, a total of $818.42.
Prior to the institution of this action the price
advanced, making the value as follows: 1,353 pairs
of black toesans at fifty-five cents, and 238 pairs of
tan toesans at eighty-five cents, a total of $946.45.
This testimony as to value was not contradicted. The
plaintiff, therefore, is entitled to recover judgment
against the defendant for the amount of $946.45, with
interest from December 20, 1919, amounting to $59.92,
making a tbtal of $1,006.37, with ten days stay of
execution.
Judgment accordingly.
MEMORANDA
Opinions not Otherwise Reported.
Akna Lesseb, Plaintiff, v. Louis N. Lesseb,
Defendant.*
(Supreme Court, Kings Special Term, December, 1918.)
Husband and wife — action for separation — dismissal of complaint
on merits — judgment may not he amended so as to provide
for education and maintenance of children — Code Civ, Pro.
S 1771 — remedy is under Domestic Relations Law, % 70.
Motion to amend judgment.
Aaron W. Levy, for plaintiflF.
Robert H. Elder, for defendant.
Lazansky, J. After the trial of this action result-
ing in the dismissal of the wife's complaint by which
she sought a judgment of separation, I declined to
provide for the custody and maintenance of the chil-
dren. Robinson v. Robinson, 146 App. Div. 533. Judg-
ment dismissing the complaint on the merits having
been entered, a motion is now made to amend the judg-
ment by inserting a provision requiring the defendant
to provide for the education and maintenance of the
children. The learned Appellate Division in the case
cited followed the rule laid down in Davis v. Davis^
75 N. Y. 221, that the provisions of section 1766 of
the Code of Civil Procedure do not empower the court
to award incidental relief to a plaintiff where her
claim to principal relief failed because '* where the
principal relief sought by the plaintiff is denied no
power exists to give judgment awarding the custody
* Beported by request — [Bbpb.
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702 MEMORANDA.
of the children of the marriage to the plaintiff and
to make provision for their maintenance out of her
husband's property/' The court held that section
1766 only appUes where a judgment of separation is
granted. On this basis there could be no power after
judgment to insert provisions for custody and main-
tenance of the children unless there be statutory war-
rant therefor. It is insisted that section 1771 gives
that power. The only authority cited in support of
the proposition is Light v. Light, 124 App. Div. 567.
In that case the wife's complaint in an action for
cruel and inhuman treatment was dismissed and the
custody of the children was awarded to the husband.
In that case the court said: ** but in the wife's action
the court had to award the custody of the child (Code
Civ. Pro. § 1771), and properly awarded it to the
husband (citing cases)." The court then said: ** Sec-
tion 1766 only relates to a case where a judgment of
separation is given, while section 1771 relates to the
final judgment in a separation case, whatever it may
be." The last sentence is seized upon by the plain-
tiff who claims that this being a separation suit,
** whatever it may be," and although she was unsuc-
cessful and no provision was made for the custody
of the children, the court has power under the provis-
ions of section 1771 to amend the judgment by insert-
ing such directions concerning the children as justice
requires. It seems to me that within its very broad
statement, that section 1771 relates to a separation
case, whatever it may be, the court meant to include
only those cases where, regardless of the result of the
litigation as to the principal relief, an award of the
custody of the children is made to the successful
party.
Of course, all that was necessary to be decided in
the case was, that where the wife's complaint is dis-
missed, the court may under section 1771 award the
custody of the diildren to the husband. If for no
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MEMORANDA. 703
other reason than a practical one, I would, indeed,
be glad to accede to a strong inclination to construe
the language in Light v. Light, supra, to its fullest
extent and grant the motion made herein. But legis-
lative mandate, even if not practical and though
dubiously conveyed, but plainly construed by the
courts, is superior to and overrides that inclination.
In matrimonial actions the courts' inherent authority
over the custody and control of children has no place.
Davis V. Davis, supra. Section 1771 of the Code of
Civil Procedure is derived from 2 Revised Statutes,
section 59, which provides: *' In any divorce suit
brought by a married woman for a divorce, or for a
separation from her husband, the court in which the
same shall be pending, may, during the pendency of
the cause, or at its final hearing, or afterwards, as
occasion may require, make such order as between
the parties, for the custody, care and education of the
children of the marriage, as may seem necessary and
proper, and may at any time thereafter, annul, vary
or modify such order.''
The Court of Appeals has held in Davis v. Davis,
supra, that this section only applies when a decree
shall be granted. It seems to me that, as far as the
question in hand is concerned, section 59 of the
Revised Statutes is practically the same as section
1771 of the Code of Civil Procedure. Salomon v. Salo-
mon, 101 App. Div. 588; White v. White, 154 id. 250.
I am, therefore, of the opinion that section 1771
of the Code of Civil Procedure does not give the court
the power to grant this motion. If my conclusion is
correct, there should be legislation which would
empower the court in every matrimonial action,
regardless of the disposition of the principal ques-
tion, to make provision for the custody, education
and support of the children of the marriage. If the
parties are honestly before the court to have their
domestic difKculties adjudicated it would be for the
be|t interests of all and avoid other proceedings to
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704 MEMORANDA.
have the whole matter as it affected them and their
children adjudicated.
It would not be necessary, as it will be here, for a
plaintiff to have recourse to the proceedings provided
for by section 70 of the Domestic Relations Law.
Motion denied.
Habby Wasserman, Plaintiff, v. Irving Nationai«
Bank, New York, Defendant.*
(Municipal Court of the City of New York, Borough of Manhat^
tan, Second District, May, 1920.)
Action — to recover money paid to secure remittance in Poland —
damages for non-delivery to designated payee — judgment for
plaintiff.
Action to recover money paid for transmission by
cable.
Buchler & Richman (Louis Richman, of connsel),
for plaintiff.
Daniel E. Hanlon {Merton E. Lewis and Robert C.
Morris, of counsel), for defendant.
Blau, J. This action is brought to recover the sum
of $120 paid by the plaintiff to the defendant for cable
transmission to Poland in currency of that country,
together with a small further sum representing
charges similarly paid to defendant by plaintiff as
part of the instant transaction.
The defendant, a national bank, had advertised in a
foreign language paper that it sent money to Poland
by post or cable *' at the lowest prices;" and the- ad-
vertisement carried the wording ** perfect security
and speed guaranteed.'*
Seeing this published announcement and in reliance
thereon, the plaintiff went to the defendant institution.
* Reported by request — [Bepb.
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MEMORANDA. 706
and arranged to send the equivalent, in Polish ex-
change, of $120 to a designated payee in Poland. In
addition to the regular cable charges for the trans-
mission of this remittance, an additional charge of $5
was made to cover the cost of a reply cable.
Despite a conflict in the testimony it appears fairly
established that the plaintiff was led to understand
and believe by the teller at the bank with whom the
dealing was had, that this additional item in line with
the advertised announcement was the means for
insuring and securing the speedy and secure delivery
of his remittance abroad ; and he was told that in case
of the non-production of a receipt within a period of
three weeks, showing the delivery of the money, the
whole amount paid )>y him would be refunded.
The entire transaction as thus explained by plain-
tiff fits in with his story of this express representa-
tion. For if there was no discussion of a guaranty of
delivery, or promise of a receipt within a specified
time, no good reason appears why a reply cable should
have been suggested or required oi" a charge therefor
exacted. Similarly, the wording of the advertisement
with its assurance of perfect security lends color to
the plaintiff's story, as corroborated by the witness
who accompanied him to the bank, of the promise to
return his money in default of proof, in receipt form,
of its delivery. It is not claimed that a receipt was
procured; and no proof 5s offered or suggestion made
that the money was ever delivered.
Nor is the defendant helped by attempting to im-
pute want of knowledge of the character and purpose
of its charges to the paying teller of its foreign
department with whom this particular transaction
was conducted. This official's testimony shows that
in addition to the regular charge, the further payment
was made by plaintiff ** for the quick transmission of
the cable [i. e., the money] supposedly.'' Here again
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706 MEMOBANDA.
we have an admission of a quick or expedited service
based upon a payment in addition to the regular rates,
thus lending corroborative weight to the plaintiff's
story.
Against the right of plaintiff to a recovery, how-
ever, it is urged that judicial cognizance may be taken
of supposed chaotic and unsettled conditions in
Poland, whereby the plaintiff is prevented from offer-
ing proof of happenings there. Basis for this theory
is sought to be furnished by the case of Rosenblatt v.
Josephson, 172 N. Y. Supp. 719. This contention, how-
ever, cannot stand in view of the fact, of which judi-
cial cognizance may equally be taken, that the internal
conditions in the Polish republic do not permit, much
less sanction, a finding of the state of anarchy referred
to in the case just cited. As a matter of fact, the re-
verse is nearer the truth; for the internal conditions
in that country have reached such a point of economic
and political restoration to normal, that an appar-
ently successful war is at the present time being
waged by its army in the territory of a neighboring
power. Furthermore, these conditions do not enter
into the case, since plaintiff's right of recovery is
placed on the definite agreement to refund his money
upon failure, with a fixed time limit, to prove the
actual transmission and receipt of the cable remit-
tance.
On the measure of damage the case of Strohmeyer
<& Arpe Co. v. Guaranty Trust Co., 172 App. Div. 16,
is cited in the thought, apparently, that any recovery
herein is limited, by the rule there laid down, to the
present value of the foreign money which defendant
was to transmit in exchange for plaintiff's payment '
of United States currency. That case, however, went
expressly on the theory that no failure to deliver the
money to its foreign destination was shown, but only
a delay in making such delivery.
Here the claim of plaintiff is predicated upon a
MEMORANDA. 707
promise or agreement of delivery with proper proof
thereof, within a definite period, or in default thereof,
a refund of the amount paid.
In the view which the court entertains of the testi-
mony, such an agreement is held established by the
proof; and there must, accordingly, be judgment for
the plaintiff in the full amount paid by him to the
defendant.
Judgment for plaintiff.
Thomas Cecil Clakke, an Infant, by his Guardian ad
Litem, Thomas G. Clarke, Plaintiff, v. Eighth
Avenue Railroad Company, Defendant.*
(Supreme Court, New York Trial Term, December, 1920.)
Trial — inherent power of court to direct preference — Code Civ.
Pro. i 793 — judicial discretion.
Motion for a preference.
B. Waldo MacKewan, for motion.
Michel Blirtland, opposed.
Gavegan, J. The legislature cannot deprive this
court of its inherent power ** to control its order of
business and to so conduct the same that the rights
of all suitors before '' it '* may be safeguarded. *'
Riglander v. Star Company, 98 App. Div. 101 ; affd.,
181 N. Y. 531. Where the reasons for preferring a
cause develop after the term for which it was first
noticed the court should nevertheless exercise its dis-
cretion and direct the preference. The affidavits here
show satisfactorily why the motion was not noticed
for the opening of the October term. On the showing
made the discretion of the court should be exercised
• Reported by request — [Repr.
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708 MEMORANDA.
to promote justice and not to prevent it. It is asserted
that the requirements of section 793 of the Code of
Civil Procedure inhibit judicial consideration of the
application because the motion was not so noticed,
even though reasons which call for the exercise of
the court's discretion developed after the notice of
trial was served. If such was the intention of the
legislature, it seems clear that the case cited above
requires me to hold that the statute cannot have the
effect intended. In the case of Waters, Inc., v. Hat-
ters' Fur Exchange, Inc., 185 App. Div. 803, it was
held that the ground on which the trial court had
ordered the preference did ** not afford a sufficient
ground for granting a preference of the trial * • •
under the inherent power of the court to control the
order of the trial of issues on the calendar, which must
now be deemed to be finally established.'* Hence the
Appellate Division could not in that case have decided
the question which arises here. For precedents in
point see Reinertsen v. Erie R. R. Co., 66 Misc. Bep.
229, and the cases there cited. The motion is granted
and the cause ordered to be added to the day calendar
for December 16, 1920.
Motion granted.
Ltman Robinson, Claimant, v. State of New York.
Claim No. 14,875.
(State of New York, Court of Claims, January, 1921.)
Damages — overflow of lands by reason of cloudburst — damages
to crops resulting from negligence of state in operation of
Barge canal, in addition to damage occurring from natural
causes — claim dismissed.
Claim for damages to crops growing on a farm due
to the negligence of the state.
ME^rORANDA. 709
Ernest F. Fox (Wilford T. Purchase, of counsel),
for claimant.
John H. Clogston, deputy attorney-general, for state
of New York.
Cunningham, J. In the year 1916, and for many
years previously, the claimant worked the farm of his
mother-in-law, Hattie Vanderbilt, *^on shares,'' for
two-thirds of the crops produced. He seeks to recover
damages to crops growing on the farm in June, 1916,
by flood alleged to be due to the negligence of the state,
in the construction, maintenance and operation of the
Barge canal.
The parties stipulated on the trial that all of the
evidence in the claim of George Bauer v. State of New
York, No. 14577, previously tried and determined in
this court, be received in this case, which was done.
The premises involved here are situated substantially
the same as the land concerned in the Bauer claim.
Our opinion in Bauer v. State of New York, 106 Misc.
Rep. 1, includes an ample statement of the facts. Such
additional evidence as was adduced on the trial of this
claim will be referred to subsequently.
The principles of law applicable to the determina-
tion of the state's liability for the injury which
occurred were fully discussed and expressed in our
opinion in the Bauer case. We are convinced that these
principles are firmly established and entirely sound.
It is needless to repeat them here in detail They
leave for us in this case the determination merely of
the issues of fact. The recent decision of this court
in Holland-Dale Garden Company, Inc., v. State of
New York, 113 Misc. Rep. 219, is not to be miscon-
strued, because of the omission from it of a eomplotc
restatement of the principles to which we have re-
ferred, or by reason of the phraseology used. This
court adheres fully to the rule stated in the Bauer
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opinion and in the cases there cited. There has been
no tergiversation on our part in this respect.
It is well to state briefly the reasons which actuate
ns in reaching the result to which we come. This trial
marked an effort on the part of counsel to supply
evidence wanting in the Bauer case. Other claims
growing out of the same transaction await trial and
determination.
Two questions of fact only are to be solved :
(1) Did the negligence of the state result in any
damage to the crops over, above and in addition to that
which would have resulted from natural causes alone,
in the absence of the intervening agency of the state ;
and
(2) What was the amount or extent of such dam-
age, if any, resulting from the state's negligence, in
addition to that which would have occurred from
natural causes.
In the main, the new evidence presented by the claim-
ant on this trial, bearing on the issue of liability, was
to the effect that natural flood conditions in Mud creek,
above the point of its influx to the Barge canal were
worse and the water higher in May, 1916, than in June
of the same year. That of the state, in effect, was that
gauge readings taken at the Lyons lock of the Barge
canal at any specific limes will show with substantial
accuracy the water elevation at the same times, in
Mud creek at or near the premises here involved, due
to the fact that Mud creek and the Barge canal reunite
at the Lyons lock, and the water at that point in the
canal and in Mud creek, near the claimant's premises,
constitutes a pool standing at both points at a given
time at substantially the same level. The state then
established the gauge readings taken at the Lyons
lock in the floods of the months of May and June, 1916,
which indicated the maximum water elevation in the
May flood to have exceeded that of the June flood, by
MEMORANDA. 711
seven-tentlis of a foot. Such, therefore, is the state
of the proof.
It is clear in this case, as it was in the Bauer case,
*^ that there would have been a flood of greater or less
magnitude, affecting the claimant's premises, on June
18, 1916, irrespective of the state's fault." There is
no doubt that the lowlands in that vicinity always have
been flooded in spring-time, by the natural rise of Mud
creek, that the land involved in this claim is lowland,
and that the rain storm and natural flood conditions in
Mud creek above the Barge canal, in June, 1916, were
unprecedented, with the exception of those which
obtained in May of the same year. It follows that these
premises would have been inundated in June, 1916, to
some degree and for some duration, quite irrespective
of any break in the canal bank.
It is beyond cavil that these lands were seriously
and extensively flooded in May, 1916. This is estab-
lished by the claimant's admission that six or six and
one-half acres thereof were flooded at that time, his
testimony that the road near the Cronise bridge, which
is two feet higher than the land, was covered with
water and by the specific evidence on the part of the
state that the water elevation at this property in the
May flood was seven-tenths of a foot higher than in the
June flood. If it be the fact that in June the natural
conditions in Mud creek were worse than in May, it is
obvious that the state's negligence did not augment
the flood at the claimant's premises, because the water
elevation there was seven-tenths of a foot lower in
June than in May. If the natural discharge in June
was but slightly less excessive than in May, it is clear
that the state's remissness produced a negligible
efl^ect, if any, because the difference in elevation
of seven-tenths of a foot in Mud creek represents
conditions at the claimant's premises substantially the
same on both occasions. If natural conditions were
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712 MEMORANDA.
practically the same in May and June, we conclude,
likewise, that the state's negligence did not damage
the crops to any appreciable extent, because, as we
have stated, the water elevations at the claimant's
land being practically identical on both occasions, were
in accord with the natural conditions existing.
Although the testimony is practically balanced on
this issue, if there be any preponderance, it is slightly
to the effect that the June flood and water elevation
above the Barge canal were higher than that in May.
The witnesses who testified on this point were all
apparently credible and about equal in number. Our
own conclusion is that natural flood conditions in Mud
creek were substantially identical on both occasions,
and that the flood conditions at the premises in ques-
tion were substantially the same at both times. If
we are correct, then it is obvious that the state's neg-
ligence did not increase the injury, and it follows that
the state is not liable under the principles of law, to
which we previously have adverted, for any part of
the loss.
In examining the facts in this case, it must not be
forgotten that all of the water which emanated from
the canal at the break found its only outlet to the
claimant's premises through the culvert in the West
Shore railroad embankment, which, of course, deterred
it greatly and permitted only its gradual escape.
We have not discussed the claimant's status here
arising from the fact that his only relationship to the
loss is based upon the fact that he cultivated the land
on shares. It seems to us evident that this would be
important, were it not for the conclusion we have
reached. Counsel did not discuss the proposition and
we regard it as subordinate to the question of liability.
The claim must be dismissed.
AcKERSON, P. J., concurs.
Claim dismissed.
MEMORANDA. 713
Jambs J. Patane, Claimant^ v. The State of
New York.
Claim No. 16602.
(State of New York, Court of Claims, January, 1921.)
Damages — UahUity of state for defective and unsafe canal bridge
— absence of warning signs at either end as required by Laws
of 1917, chap. 472, H 129, 130 — damages for loss of use of
truck during repairs and for expense of repairs, allowed.
Claim for personal damages due to the negligence of
the state in constructing and maintaining a bridge
over the old Erie canal.
Henry J. Crawford, for claimant.
Glenn A. Frank, deputy attorney-general, for the
state.
Mobschauseb, J. Claimant presents a claim alleging
that he sustained damages to personal property due to
the negligence of the state in constructing and main-
taining a bridge known as Lundrigan's bridge over
the old Erie canal about a half mile south of the south
line of the city of Watervliet in the county of Albany ;
and that said bridge was constructed and maintained
in such a condition as to make the said bridge unsafe
for automobiles and other vehicles to pass over the
same; and that the state permitted the flooring and
timbers of said bridge to become unsafe, rotten and
defective; and that such condition existed without
any warning to the public; and that it did not have
upon either end a warning sign as required by sections
129 and 130 of chapter 472 of the Laws of 1917.
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714 MEMOBANDA.
Section 129 of chapter 472 of the Laws of 1917
requires the superintendent of public works when
such bridge becomes weakened or unable to bear a load
of twelve tons to post or erect conspicuously at each
end of such bridge a sign stating the maximum
capacity of such bridge and that the use of such
posted bridge with a load beyond the stated maximum
capacity resulting in damage to person or property
shall be deemed contributory negligence upon the part
of th« person so using the same.
Under the Canal Law, section 47 of chapter 13, Laws
of 1909, the state assumes liability for any injury
to any person sustaining damages from the canals or
from their use or management or resulting or arising
from the neglect or conduct of any officer of the state
having charge thereof.
The claimant on the day in question was crossing
said bridge over the old Erie canal with a truck and
load weighing in all six tons. The truck broke through
the flooring of the bridge and rested on the lower
timbers of the bridge, and the automobile which was
being driven by claimant at the time was more or less
injured and damaged.
Upon the trial the claimant gave evidence tending to
show that the timber of the bridge was rotten and
dozy, and unsafe and in a dangerous condition. This
was denied by the witnesses for the state. The claim-
ant also produced evidence upon the trial by himself,
and other witnesses who live in the neighborhood of
the bridge, and persons who were present at the
accident, that there were no warning signs as required
by law at either end of the bridge. The state gave
evidence upon the trial by a number of its employees
that these signs were up and that they had observed
them from time to time; but all the witnesses, both
for the state and the claimant, agree that the next day
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MEMORANDA. 715
after the accident there was no warning sign at either
end of the bridge.
We believe from the testimony that the bridge was
defective and the timbers rotten. The state '« witnesses
who were mostly employees in the service of the
state testified that one of their duties required them
to report the absence of such signs at bridges, and
that they frequently noticed the sign on this bridge,
and that within a short time of the accident the signs
were on the bridge located as required by law. There
are about thirty bridges under the care and manage-
ment of the division in which this bridge is located,
and these employees had to do more or less with all
of these bridges. They had many duties to perform.
Most of them were laborers; and it seems rather
incredible to the court that they should pay strict
attention to warning signs in connection with their
other duties. If their testimony is to be believed
this court would have to find that the claimant or
someone in his behalf was dishonest and corrupt
enough immediately after the accident to remove both
signs for the purpose of establishing a claim. The
claimant did not impress us as a person of that char-
acter; and it is doubtful whether he had any thought
at that time of a claim or anything else except to save
his automobile and the load. A large number of
witnesses who were disinterested and had no reason
to testify falsely and had no interest in the claimant,
and who were strangers to him, testified that they fre-
quently crossed and recrossed this bridge, some of
them living in the immediate neighborhood of the
bridge, and that there were no warning signs and had
not been for a long time prior to the date of the
accident.
We are inclined to think that there was no warning
sign at either end of the bridge at the time of the
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accident to the claimant, and that the bridge was
defective and the timbers somewhat decayed.
The claimant claims $441.22 for repairs to the truck ;
depreciation in value to the truck $500, and loss of
the u^se of the truck for fourteen days at $25 a day,
$350.
We think the claimant is entitled to recover the
money he expended for repairs in restoring the truck
to its condition as it existed immediately before the
accident; and he is also entitled to be paid for the
loss of the use of the truck during the time it was
being repaired, but we do not believe that the claimant
is entitled to recover for the item of depreciation in
value of the truck. The claimant could recover dam-
ages, the amount being the difference between the
market value of the truck before and after the injury ;
or he could recover the costs of reparation and the
loss of the use of the car. The usual measure of dam-
ages in cases of that kind is the difference in market
value of the car inmiediately before and after the
accident, and expenses from the injury; or the costs
of reparation and the reasonable value of the use of
the truck during the time it was being repaired. We
do not believe that the claimant could recover both the
depreciation in value and also the costs of reparation.
We do not think that the claimant should be allowed
to recover for the cost of complete restoration of the
car and the use of the car while being repaired, and
in addition thereto the depreciation in value. The
truck was completely repaired, the cost of which he is
allowed, and he is also allowed for the use of the truck
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MEMOEANDA. 717
accident. The amount of depreciation in value of the
car before and after was stated by a person who was
interested ; and we doubt the correctness of his opin-
ion, and are not inclined to believe that the damage
was to the extent that he stated.
Therefore, the claimant should receive the moneys
expended by him in the repair of the truck amounting
to the sum of $441.22, and the loss of use of the truck
for fourteen days at $25 a day amounting to $350,
a total of $791.22.
Judgment is, therefore, ordered for the sum of
$791.22.
AcKERSoN, P. J., concurs.
Judgment accordingly.
Elbebt E. Coolby, Claimant, v. The State of New
YOBK.
Claim No. 16563.
(State of New Tork, Court of Claims, January, 1921.)
Bridges — accidental injury received by being struck by lift gates
of canal bridge — damages for loss of wages and for medical
expenses awarded.
Claim for damages for negligence.
Thomas F. Powers, for claimant.
Glenn A. Frank, deputy attorney-general, for state.
MoBSCHAUSEB, J. The claimant files a claim to
recover damages hy reason of an accident which hap-
pened to him on the 12th day of November, 1919, by
being struck by certain lift gates constructed and
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718 MEMOEANDA.
maintained on a certain bridge spanning the Erie
canal at Nineteenth street near Second avenue in the
city of Watervliet, Albany county, N. Y. On the day
in question the claimant was driving an automobile
across said bridge, and as he was about to approach
the west side of said bridge proceeding in a westerly
direction, the gates were lowered and in coming down
struck the windshield of the car in which the claim-
ant was riding, and came in contact with the claimant's
body whereby he was injured in his breast and
shoulder, and he received a fracture of the index
finger of his left hand. The finger, from the effects
of the injury, was left somewhat crooked. The claim-
ant was confined to his house for five weeks; his
doctor's bill was $100; and he lost substantially $100
in salary. He suffered more or less pain during the
time and now claims that he is not able to raise his
arm above the shoulder, and he still feels the effects
of the injury. Two physicians testified ; one a physi-
cian who attended the claimant, and one physician who
was called by the state who had examined the claim-
ant. The physician for the claimant stated that in
his opinion the injuries to the claimant were perma-
nent, while the physician called by the state gave his
opinion that there was no permanent injury, and that
the claimant had substantially recovered, and upon his
examination of the claimant found no indications of
any physical injuries except the condition of the
finger of the left hand.
The claimant testified upon the trial that while
approaching the bridge he heard no gong or other
alarm, and in this he was corroborated by several
other witnesses who testified that they saw the
accident and heard no alarm given just before the gate
came down ; that the gate came down after the claim-
ant had crossed the bridge, dropped suddenly and
struck the car in which claimant was riding, and
injured the claimant. The gate tender was called by
MEMORANDA. 719
the fitate ; and he testified that the gong was mounded ;
that he looked both ways and did not see the car
approaching. He had an unobstructed view in each
direction for some distance, and testified that at no
time did he see the car in which the claimant was rid-
ing. It is very evident from the testimony that no
gong was sounded, and that the gate tender did not
make any observation before he lowered the gates,
and that he was careless in the operation of the gates
at that time.
Under the Canal Law, section 47, chapter 13, Laws
of 1909, the state assumes liability to any person sus-
taining damages from the canals or from their use
or management or resulting or arising from the
neglect or conduct of any officer of the state having
charge thereof or resulting or arising from any
accident or other matter or thing connected with the
canals, the amount of such damage to be ascertained
and determined by the proper action or proceeding
before the Court of Claims; but no judgment shall
be awarded by such court for any damages in any case
unless the facts proved therein make out a case which
would create a legal liability were the same established
in evidence in a court of justice against an individual
or corporation.
We are inclined to think from the evidence that the
injury to the claimant, while somewhat painful, was
in no way permanent except to the extent that his
index finger was, after it healed, left in a slightly
crooked condition; but from the statement of the
claimant himself, this in no way aflfected the use of
the finger.
The claimant, after five weeks, went back to work,
and since then has been carrying on his usual voca-
tion. We think the claimant should receive his wages
while he was confined to the house, which amount
to $100, his doctor's bill which amounts to $100; and
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720 MEMORANDA.
we think that $400 would be a fair amount to pay him
for the suffering and inconvenience that he received
by reason of the accident.
Claimant is, therefore, allowed the sum of $600.
AcKEBSON, P. J., concurs.
Claim allowed.
I
Matter of the Petition of William C. Prime, as
Referee, Petitioner, to Register the Title to Certain
Lands.*
(Supreme Court, Kings Special Term, February, 1921.)
Beal Property Law, J 378(3) — registration of tUU.
Petition to register title to lands.
Gilbert F. Kennedy, for • petitioner.
Charles D. Newton, attorney-general, for state of
New York,
J. Tyson McGill, official examiner. Kings county.
AspiNALL, J. In my opinion the referee in this
proceeding has the power of disposing in fee simple
of the legal estate in land under subdivision 3 of sec-
tion 378 of the Real Property Law, and I, therefore,
confirm the report of the official examiner of titles
as referee and direct that a final decree and judg-
ment of registration be entered.
Ordered accordingly.
• Reported by request. — [Repr.
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INDEX.
AOOOBD AND SATISFACTION.
What not an — Written order for goods — Parol evidence of «fi-
written acceptance. — Upon the trial of an action to recover the unpaid
balance of the agreed price of goods to be manufactured, sold and
delivered, evidence was given in support of the allegations of the com-
plaint. During the cross-examination of defendant there was received
in evidence an agreement to compromise the dispute between the
parties which had been pleaded in the answer as a defense and bar.
The plaintiffs then rest^ their case and a motion by defendant to
dismiss the complaint on the sole ground that said agreement estab-
lished an accord and satisfaction and was therefore a bar to the
action, was granted. Held, that plaintiffs, having made out a prima
facie case, it was error to dismiss the complaint as manifestly the
agreement was merely an accord and not au accord and satisfaction.
The agent of plaint^s testified that as the result of conversations
defen&nt's treasurer gave him written orders which stated fully the
style of goods, the price and a time within which deliverv was to
be made and also the terms of payment. When the witness was
asked whether, at the time he received the order, anything was
said by him to defendant's treasurer with reference to the time of
delivery, the court excluded the testimony on sustaining the objection
of defendant's counsel that oral evidence was being offered to vary
a written instrument. Held, that in the absence of evidence in
writing of plaintiffs' acceptance of the order, the exclusion of the
testimony was error. Potter v. Knrlander Bros. & Harfield Cloak
& Suit Co., 117.
AOOOUNTINa.
Testamentary trustees — Wills — Real estate. — Upon the account-
ing of testamentary trustees, about thirteen years after the death
of their testator, as to unproductive and unimproved real estate
situated in a sister state, which though they were in duty bound to
sell they still held undivided, the annual taxes and carrying charges
are properly chargeable to and should be paid with interest out of
the principal. Upon a future accounting after a sale of the real
estate within six months from the date specified in an order direct-
ing the trustees to sell, they may be reimbursed from the proceeds
of the sale. Matter of Lichtenberg, 89.
See Gifts.
ACTIONS.
1. When may not be maintained hy alleged ''next friend" of a
lunatic — Marriage — Default — Evidence — Parties — Code Civ.
Pro. i 1748. — An action by the " next friend " of a lunatic as per-
mitted by section 1748 of the Code of Civil Procedure, should be
brought and prosecuted in the name of the " next friend " and no^
46
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722 INDEX.
ACTIONS — Continaed.
in the name of the lunatic. Upon a petition setting forth the alleged
insanity of a wife an order was made and entered appointing peti-
tioner as ** next friend " for the purpose of maintainmg an action
for the annulment of the marriage of plaintiff to defendant. Upon
application for judgment as by default it appeared in answer to
questions asked by the court, that the petition was presented and the
action brought at the request of defendant and that instead of being
the " next friend " of the wife, the plaintiff all the time had been
acting as the *' next " and best friend of the defendant. Held, that
the application for judgment should be denied. Where, notwith-
standing queer and peculiar acts on the part of the wife shortly-
after the marriage, it appears that they lived together for four
years before she was declared insane, and had two children, and
the evidence does not justify a finding that she did not at the time
of the marriage understand the nature, effect and consequences
thereof, the annulment will be denied even though all other reasons
for rejecting the application for judgment should fail. The order
in this case "that an action may be maintained" by plaintiff as
" next friend " did not authorize the bringing of the action by him
without making the wife a party defendant. Kemmelick v. Kem-
melick, 198.
2. To recover money paid to secure remittance in Poland — Dam-
ages for non-delivery to designated payee — Judgment for plaintiff.
— Wasserman v. Irving National Bank, 704.
See Deeds; Insurance (Life); Pleading.
ADJOINIKG 0WNEB8.
1. Establishing title — When lot owner cannot take forcible pas-
session of a disputed strip of land — Deeds — Injunctions — Eject-
ment — Code Civ. Pro. J 968. — A lot owner, except by virtue of a
judgment in a proper action establishing his title, cannot take
forcible possession of a disputed strip of land claimed by an adjoin-
ing lot owner. Where in an action between adjointing lot owners
on a city block to determine the title to a strip of land to which
plaintiff claims title by adverse possession, it appears that the
properties of both parties are about two feet off the line as given ,
m their respective deeds, a permanent injunction will be granted i
restraining the defendant from moving a building onto the disputed |
strip after he had torn down the division line fence. The remedy of i
the defendant is an action of ejectment in which, under section 968 |
of the Code of Civil Procedure, he, as plaintiff, would have the right
to have the issues framed tried by a jury. Rzepecka v. Urbanowski, |
30. I
2. Falling branch of tree — When action for tresvass will not lie.
— Where dur
tree on defen(
land, the mere
upon plaintiff'
the limb, whic
had fallen up
an actionable
complaint will
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INDEX.
ADOPTION.
When application by second husband of moil
her child fviU not be granted against the opposit
Divorce — Husband and wife — Domestic Helati
— The statute (Domestic Relations Law, i 111(3]
the consent of a parent who has been divArced b(
cruelty or adultery is unnecessary in adoption
where in a wife's action for a divorce she vas a
of her six-year-old daughter with provisioi: that t!
be entitled to visist her once a week, an applicat
of the mother for the adoption of the child ^
against the opposition of the father, as the efl(
adoption would be to terminate, without legal
rights of the father. Matter of Metzger, 313.
AFFIDAVITS.
See Transfer Tax.
AOENOT.
See Bill of Particulars.
ALIEN ENEMIES.
See ExecvtorB and Administratonk
AMENDMENTS.
See Pleading.
ANIMALS.
See Injnnctiont.
ANNUITIES.
See Wills.
APPEAL.
See Smnmanr Proceedinffs.
ABBEST.
When motion to viicate an order of, denied
Bail --Code Civ. Pro. J J 560, 575.-— An undertah
under sections 550 and 675 of the Code of Civi
defendant in an action for separation, is in Ihe
bail to insure the payment of alimony as providec
and defendant's motion to vacate the order of
charge the undertaking on the ground that the
and a decree entered will be denied. Sturges v.
ASSIGNMENTS.
See Judgments; Transfer Tax.
ASSOCIATIONS.
See Transfer Tax.
ATTACHMENT.
See Contracts.
ATTOBNEYS.
See Judgment.
724 INDEX.
BAIL.
See Arrest
BAILMENTS.
Action to recover value of contents of a trunk ^ Evidence ^^
When complaint dismissed.— FlaintiE who, with her husband, was
about to leaye defendant's hotel where they were guests, with the
intention of returning in a few days, upon being informed by defend-
ant's manager that their trunks would be taken care of during her
absence, a trunk in which among other articles was placed a diamond
pendant valued at more than $1,000 was delivered to defendant for
storage. When on plaintiffs return the trunk was sent to her room and
opened the pendant was missing. In an action to recover its value
it was conceded that the relation between the parties was that of
bailor and bailee, but there was no evidence that defendant had
actual notice that the pendant was in the trunk. Held, that the
dismissal of the complaint upon the ground that defendant, by
becomino^ the bailee of the trunk and its contents, was not required
to and did not assume that the trunk contained articles other than
those ordinarily contained in trunks, and that in consequence there
was no bailment as to the pendant, was proper. Waters v. Bean
Site Co., 65.
See Negligence.
BANKS AND BANEJNO.
Negotiable instruments — When temporary injunction granted by
court of sister state has no extra-territorial effect, — Defendant, a
Massachusetts corporation, by a letter of credit issued by it agreed
with the drawers and indorsers and bona fide holders of drafts drawn
thereunder and in compliance therewith that such drafts would be
duly honored upon due presentment if accompanied by the documents
mentioned in the letter of credit. In an action upon a draft drawn
under the letter of credit and delivered to plaintiff, a resident of the
State of New York, for a valuable consideration, it was uncon-
troverted that no part of plaintiff's duties in respect of any con-
tractual relation arising from an assignment of the credit, assented
to by defendant in writing, and negotiations of the draft, remained
unperformed. Held, that an injunction pendente lite purporting to
have been granted by the Superior Court of Massachusetts, restrain-
ing defendant from making payment under the credit had no extra-
territorial force or effect in the courts of the State of New York,
and was no defense to the action, it appearing affirmatively from the
answer of defendant, that the plaintiff herein was not a party to
that action, and plaintiff's motion for judgment on the pleadings,
will be granted. The defense sought to be established gave no
ground under the true rule of judicial comity warranting recognition
in our courts, since the result would be to utterly defeat the acknowl-
edged rights of the plaintiff and deny it its day in court, and be
entirely contrary to the judicial decisions in this state, that a letter
of credit is a complete and independent contract. National Park
Bank v. Old Colonv Trust Co.. 127.
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INDEX. 725
BILL OF PABTI0X7LABS — Continued.
agreed that plaintiffs' commission on a sale to the French govern-
ment, alleged to have been negotiated by plaintiffs on behalf of
defendants, should be a certain fixed proportion of the purchase
price, the plaintiff may properly be required to give a bill of par-
ticulars in regard to immaterial matters which by pleading he has
assumed or admitted are material. The gist of the defense, so far
as material, was that one of the defendants was merely acting as
agent of the other in the transaction. Held, that an apparent
admission of an allegation of the complaint, that it was agreed
between plaintiff and defendants, by an allegation of the answer
that it was finally agreed with plaintiff, by the defendant for whom
the other defendant was acting, that plaintiff's commission should
be, etc., was really a denial of said allegation of the complaint, it
being admitted only that an agreement was made with but one of
the defendants. The answer containing nothing to indicate that
the date of the agreement admitted by the answer was the same
as that set up in the complaint, defendants were entitled to a bill
of particulars to the end that they may be apprised of the date
when plaintiff claims both defendants entered into the agreement,
and also of all other appropriate particulars thereof sought by
defendants. Adams v. Dodge, 565.
BILLS, NOTES AND OHBOES.
See Negotiable InstnunentB.
BONA FIDE PUBOHASE.
See Oonyersion.
BBONX COUNTY OOUBT.
See OostB.
BRmGES.
Accidental injury received by being stmck by lift gates of oanal
bridge — Damages for loss of wages and for medical expenses
awarded. — Cooley v. State of New York, 717.
CANCELLATION CLAUSE.
See !
CABBIEBS.
See Negligence; Pleading.
CEBTIORABL
Taxes — Debt due from United States not exempt — When pro-
ceeding to review an assessment for personal property will he
dismissed — United States Revised Statutes, 4 3701 — Tax Law,
i 2(8). — The unpaid balance of a debt which was due and owing
from the United States, on October 1, 1919, on certain war contracts
fully performed, is not exempt from taxation under section 3701
of the United States Revised Statutes but is an asset subject to
municipal taxation under section 2(8) of the Tax Law of the state,
for the year 1920, as a debt due from a solvent debtor, and pro-
ceedings on a writ of certiorari under section 12 of the Tax Law,
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726 INDEX.
OBBTIORABI — Gontiniied.
to review an assessment which disallowed the deduction of such a
debt, will be dismissed. People ex reL Astoria light, Heat & Power
Co. V. Cantor, 419.
CITATION.
See Surrogatas' Oourli.
CIVIL BIGHTS LAW.
H 60, 51, Pfaudler v. Pfaudler Co., 477.
CLAIMS.
See Damaies; Higliways.
CONDITIONAL SALES.
See Contracts.
CODE OF CIVIL PBOCEDUBE.
i 382(5), Model Building & Loan Assn. v. Reeves, 137.
i 440, Herman, Inc. v. American Fruit Distributing Co., 346.
f f 550, 575, Sturges v. Sturges, 475.
f 723, Buckley v. Sharpe, 206.
f 793, Clarke v. Eighth Ave. R. R. Co., 707-
f 829, Matter of Eolb, 361.
f i 870, 872, Rittenberg v. Barrett, 167.
f 968, Rzepecka v. Urbanowski, 30.
i 984, Block V. Bacon Coal Co., 54.
f i 1646, 1679, Eussold v. Behrman, 682.
i 1748, Kemmeliek v. Eemmelick, 198.
i 1771, Lesser v. Lesser, 701.
i 1836a, WooUey v. Hutchins, 11.
f f 1919, 1923, Skolny v. Hillman, 571.
f 2231 (1-a), Jackson v. Qrey, 92.
ff 2564, 2565, 2588(3), Matter of McOwen, 15L
f 2596, Matter of Bumham, 455.
f 2649, Matter of McGuire, 81.
$ 2670, Matter of Shulenburg, 155.
i 2679, Matter of GK>odwin, 39.
U 2680, 2681, Michaels v. Flach, 225.
$ 2697, Matter of Miller, 283.
i 3268, Tobias Tile Co., Inc., v. Topping Realty Co.. Inc., 600.
CODE OF CRIMINAL PROCEDURE.
ii 285, 684 — Motion after judgment of conviction for inspection
of grated jury minutes denied — Waiver of rights, — Sections 285
and 684 of the Code of Criminal Procedure refer only to imperfec-
tions of form and departures from the form or mode of procedure
prescribed by said Code, or to errors or mistakes in form or in mode
of procedure, and are not broad enough to warrant disregarding
the violation of a constitutional right. After his conviction for
murder in the first degree, the defendant's motion for an inspection
of the minutes of the grand jury for the sole purpose of making a
motion to dismiss the indictment, on the ground that there was no
evidence before the grand jury to connect him with the crime
charged, except that of accomplices, will be denied on the ground
INDEX. 727
CODE OF CRIMINAL PROOEDUSE — Continued,
that not having been made prior to the judgment of conviction the
defendant had waived his right to make the motion. People y.
Giordano, 62.
OODE OF ORDINANOES OF OITY OF KEW YORSL
Art. 8, chap. 14, People ex reL Hultman v. Gilchrist, 65L
CONSIDERATIONS.
See Mortgages.
CONSPIRACY.
See Injunctions.
CONSTITUTIONAL LAW.
Unconstitutionality of Laws of 1919, chap 459 — Contracts'^
Statutes — Jurisdiction — Cxmrt of Claims — State Constitution,
art. Ill, ii 19, 28.— Chapter 459 of the Laws of 1919, in terms
conferring upon the Court of Claims jurisdiction to hear claims of
certain highway contractors for losses due to increased cost of labor,
material and transportation of material resulting from war con-
ditions, is in violation of section 19 of article III of the state
Constitution providing that the legislature shall neither audit nor
allow any private claim or account against the state; and it is also
in violation of section 28 of the same article providing that the
legislature shall not grant any extra compensation to any contractor.
An advertisement for letting of a highway contract was published
once between April 6 and April 17, 1917, namely, on April 16,
1917. The date therein advertised for the letting was May 7, 1917.
Claimant's bid was dated May 7, 1917, and the contract was executed
on May 9, 1917. Held, that the contract did not come within the
terms of chapter 459 of the Laws of 1919. The words in section 6
of the act " advertised for letting between April 6, 1917, and April
17, 1917,'' relate to the advertised date of letting and not to the
date of advertising. Dale Engineering Co. y. State of New York,
233.
See Statutes; Transfer Tax.
CONSTRUCTION.
See Lease; Statutes; Wills.
CONTRACTS.
1. What constitutes — Warehousemen — Eeeeipts — Negotiable
instruments — Pleading — General Business Law, $ 91. — A provision
in a warehouse receipt that the goods were to be stored in a particular
warehouse constitutes a contract that they shall remain there and
no change can be made except by consent of the holder of the
receipt. After a negotiable warehouse receipt, conforming to sec-
tion 91 of the General Business Law, had been given by defendant
for goods stored in one of its warehouses, it was indorsed and
delivered to one to whom the goods were sold, and the buyer, upon
the sale of the same to plaintiff, indorsed and delivered to the pur-
chaser the warehouse receipt. Without the consent of plaintiff or
any of the holders of the warehouse receipt the goods were removed
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OONTB A OTS — Continued.
to another warehouse and there destroyed by fire. In an action to
recover on the warehouse receipt defendant by its answer admitted
its receipt of the goods and the issuance of the warehouse reeeipt.
Held, that a separate defense that defendant notified the one i^ho
stored the goods that it desired to remove them from the f>lace
described in the receipt, and that if defendant did not receive any
word of objection to such course, the transfer would be made, -was
subject to a demurrer. Childs Co., Inc. v. P. Beardon, Inc., 178.
2. When action cannot he maintained against third person far
damages for breach of contract to marry — Pleading — Frauti
When motion for judgment on the pleadings granted. — A party to
a contract to marry cannot maintain an action for general damages
against a parent or other person who even maliciously induces the
other party to break the contract, unless fraud or other tortious
means be employed. A demurrer to a complaint which alleged
inter alia that plaintiff incurred great expense in anticipation o£
his marriage to defendant's daughter and had suffered damages in
the sum of $10,000 by reason of the deprivation of the companion-
ship, society, love and affection of his fiancee, sustained with leave
to serve an amended complaint and defendant's motion for judg-
ment on the pleadings granted. Guida v. Pontrelli, 181.
3. Delay in delivery of goods — Rescission — Evidence. — The rule
that while delay in the performance within a reasonable time of a
contract caUing for successive deliveries of goods may give rise to
a cause of action for damages it will not always permit rescission,
does not apply to an executory contract of sale where delivery within
a reasonable time is a concurrent condition to any obligation of the
buyer to accept and pay and where the time to perform such condi-
tion has expired before notice of rescission was given. More than
four months after the making, on September 13, 1918, of a con-
tract for the sale and delivery of certain iron, and at a time when
plaintiff was not ready to deliver the goods, defendants in writing
cancelled the order, and while the testimony on behalf of plaintiff in
an action for damages tended to show that the average time in
which it was possible to secure delivery of goods called for by the
contract, during the war, was from four to five months, one of the
defendants testified that plaintiff stated that it could deliver the
goods within four or five weeks. Held, that a finding tliat on
January 16, 1919, when the order was cancelled because of plaintiffs
delay, more than the reasonable time contemplated for the delivery
of the goods had elapsed, was warranted. The trial court having
found upon proper evidence that plaintiff did not deliver the goocS
within a reasonable time, as required by the contract of sale, the
plaintiff had no right of action for damages, and a judgment dis-
missing the complaint upon the merits will be af&rmed. Chemung
Iron & Steel Co. v. Horn, 380.
4. Action for breach of a contract of shipment — Foreign stock
corporations — Interstate commerce — Stock Corporation Law, i 15,
— In an action by a foreign stock corporation for breach of a con-
tract of shijpment from one state to another, no question under
section 15 ot the Stock Corporation Law of the state of New Yoric
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INDEX. 729
OONTRAOTS — Continued.
is properly in the case. Publieker Commercial Alcohol Co. ▼•
Roberts, 651.
5. Equitable interpretation — Pleading. — In the interpretation
of a contract the court will endeavor to give it the construction
most equitable to both parties instead of a construction which will
give one of them an unfair and unreasonable advantage over the
other. Kavanaugh v. Cohoes Power & Light Corp., 590.
6. When consignment of merehandise upon conditions not con^
ditional sale — Title in consignor — Attachfnent — Conversion —
Damages — Personal Property Law, i 62. — An agreement for the
consignment of merehandise upon conditions therein stated is not
such a contract for the conditional sale of goods and chattels as
is required, by section 62 of the Personal Property Law, to be filed.
Under such an agreement the title to the goods remains in the
consignor and they are not subject to attachment by a creditor of
the consignee. Where a sheriff's jury finds that certain goods,
when attached in an action against the consignee, were the property
of the consignor, the plaintiff, in an action against the sheriff or
his surety on a bond for a return of the goods, for a wrongful
conversion, is entitled to recover as damages the highest value of
the goods between the time of the conversion and the trial of the
action. Plymouth Rubber Co. v. Knott, 695.
See Oonstitntional Law; Insurance (Life); Mandamus; Par-
ties; Pleading.
OONTRAOTS FOR TOWAGE.
See Ships and Shipping.
OONVERSION.
Check — Delivery to wrong person by mistake — Bona fide pur-
chaser — When drawer of check as assignee of proper payee acquires
no title — Negligence of drawer proximate cause of loss. — To main-
tain an action for conversion the plaintiff must have some title to
or interest in the property alleged to have been converted. In an
action for the alleged conversion of a check and the proceeds thereof
drawn by plaintiff it appeared by the agreed statement of facts
that by mistake the check was forwarded, not to the payee, but
to another customer of plaintiff having the same name, upon whose
indorsement of the check the amount thereof was paid to him by a
bank in the belief that he was the proper payee. Held, that the
alleged proper payee of the check, who received nothing, acquired
no title to or interest therein, and that plaintiff as his assignee had
no right of action for the conversion of the check against the
defendant bank, which after collecting the check from the bank on
which it was drawn transmitted the proceeds to the bank which had
cashed the check. The negligence of the plaintiff or its agent
delivering the check to the wrong person, thus enabling him to
pass an indefeasible title to a bona fide purchaser, was the proximate
cause of the loss which plaintiff must bear rather than defendant
which parted with its money in absolute good faith. Slattery & Co.
V. National City Bank, 48.
See Oontracts; Pledge.
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OOmrETANOES.
Reservation of rent and right of re-entry for nonpa^sfment in
perpetual leases creates an estate upon condition — Relationship of
landlord and tenant — Tenant estopped from asserting rights h'j
prescription. — In an action by the purchaser from the tenant of
lands held under such perpetual leases, where the tenant had
defaulted in the payment of the rent and the landlord and tenant
had entered into a contract, after such default of which the pur-
chaser had knowledge, heldy that the rights of the purchaser were
determined by the contract which, fairly construed, limited the
purchaser to the amount of water power fixed in the leases and
described in the contract and excluding certain excess water power
claimed by prescription and estoppel, and that defendant was
entitled to a dismissal of the complaint and to an affirmative judg-
ment on its counterclaim cancelling and annulling the leases pur-
suant to such contract. Where a conveyance of land to the grantee,
his executors, administrators and assigns forever, contains a reserva-
tion of perpetual rent, and the right of re-entry for non-payment,
the estate created is upon condition and not in fee simple. Such a
conveyance creates the relationship of landlord and tenant, and
the tenant is estopped from asserting any rights by prescription.
Kavanaugh v. Cohoes Power & Light Corp., 590.
OOBPORATIONS.
1. Service of process on foreign — General Corporation Law, J 16
— When affidavit of service of summons and complaint insufficient —
Vacating judgment taken by default on such an affidavit, — The
statute (General Corporation Law, $ 16) requires a foreign cor-
poration doing business in this state to make and file in the office
of the secretary of state a designation of the person upon whom
service of process against the corporation may be made in this state.
Where with due diligence the plaintiff in an action against such a
corporation, which has complied with section 16 of the (General
f^rk'rr\n'mfi/\n T.oiir nrkn\A \\ava oa/tonf aino/l fVio nam a f\f fViA -no'rarkn
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INDEX. 731
00BP0RATI0N8 — Continued.
compromise verdict in favor of plaintiff will be set aside as against
evidence and the weight of evidence, and the complaint dismissed.
Greaves v. American Institute for Scientific Research, 413.
See Oontracts; Negotiable InstnunantB; Pleading; Wills.
COSTS.
Bronx County Court — When security for costs not required — Code
Civ, Pro, % 3268 — 5ronx County Act (Laws of 1912, chap, 548).—
A domestic corporation, whose principal place of business is in the
city of New York, as plaintiff in an action brought in the County
Court of Bronx county against one of its residents, may not be
required to give security for costs under section 3268 of the Code
of Civil Procedure. Section 3268 of the Code of Civil Procedure
and the "Bronx County Act" (Laws of 1912, chap. 548) must be
read together, and a motion to vacate an order requiring the plain-
tiff to file security for costs will be granted. Tobias Tile Co., Inc. v.
Topping Realty Co., Inc., 500.
oounte&olahi
Landlord and tenant — Failure to give possession — Damages —
Evidence, — Where in an action to recover rent of an apartment
under a written lease the evidence justifies a finding that because of
the acts of the landlord, its contractors and servants, the tenant
was not given possession of the apartment on time, he is entitled to
counterclaim hiis damages for the time he was kept out of possession.
Where the court refused to submit the counterclaim to the jury and
directed a verdict in favor of the landlord for the amount of rent
claimed, the judgment entered on the verdict will be reversed and a
new trial ordered. 163 East 36th St. Corp. y. Stockbridge, 98.
See Pleading; Sales.
COUNTY LAW.
( 12(14) Matter of Seeley, 633.
COURT OF CLAIMS.
Jurisdiction — Banks — Claims — State — Statute of Limitations
— Laws of 1919, chap, 581.— The statute (Laws of 1919, chap. 581)
conferring jurisdiction upon the Court of Claims to hear, audit and
determine the claims of the depositors and creditors of two certain
banks against the state, for damages sustained through the failure
of said banks and each of them, declares in unequivocal language
that it cannot be used to create any liability, and it expressly per-
mits the state to interpose any legal or equitable defense, except the
Statute of Limitations. Where a claim is prosecuted under said
statute upon an allegation that the failure of the banks was due
to the tortious and negligent acts of the officers, agents and servants
of the state, the defense that the state is not liable therefor must
be given its legal effect, which is, that it is a complete answer to
the claim. Sherlock v. State of New York, 491.
See Constitutional Law.
COVENANTS.
See !
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OBIMINAL OONSPI&AaT.
See IndictmentB.
OBIMINAL LAW.
See Code of Oriminal Prooednra.
CUSTOM AKD USAGE.
See Ships and Shipping.
DAMAGES.
1. Overflow of lands by reason of cloudburst — Damages to
crops resulting from negligence of state in operation of Barge canal.
in addition to damage occurring from natural causes — Claim dis-
missed. Robinson v. State of New York, 708.
2. Liability of state for defective and unsafe canal bridge—*
Absence of warning signs at either end as required by Laws ot 1917,
chap. 472, J J 129, 130 — Damages for loss of use of track during
repairs and for expenses of repairs, allowed. Patane y. State of
New York, 713.
See Bridges; Oontracts; Sales.
DECEDENT ESTATE LAW.
i 35, Matter of Cutler, 203.
i 35, Matter of Gaffken, 693.
H 44, 45, 47, Woolley v. Hutchins, IL
DEEDS.
When plaintiff entitled to judgment declaring the instrument nuU
and void — Actions — Statute of Wills — Gifts, — By a writing in
the form of and acknowledged as a deed, the grantor quit-claimed
to her husband, to whom the instrument was delivered on the day
of its date, all real estate of which she should die seized, and also
assigned to him all of her personal property. By the instrument,
she reserved full control and dominion over her property, and it
was left entirely discretionary with her whether at her death any-
thing should be left to her grantee. Held, that in an action by the
brother and only next of kin of the grantor, to have the instrument
annulled on the ground that it was an attempt by the grantor to
dispose of her property in a form and manner contrary to the
Statute of Wills, plaintiff was entitled to a judgment declaring the
instrument null and void. The instrument, in the circumstances
disclosed, can be sustained neither as a gift inter vivos nor as a gift
causa mortis. Butler v. Sherwood, 483.
See Adjoining Owners.
DEFAULT.
See ForecloBiire.
DEPOSITIONS.
When motion to vacate order for examination before trial denied
— Express companies — Joint stock associations — Parties — Cod4i
Civ, Pro, 55 870, 872.— Where the defendant in an action brought
against him as president of an express company, which, bv not
denying in his verified answer he admits is a joint stock association
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INDEX.
DEPOSITIONS — Continued,
of which he is the president, and the moving i
an order for his examination before trial as pre
company " or any other officer " of the compai
such facts and circumstances as show the mate
of the testimony sought, a motion to vacate the
but the order will be modified to the extent
words *' or any other officer." The defendant, \
the express company, was the " party to the
meaning of sections 870 and 872 of the Code
Rittenberg v. Barrett, 167.
DEPOSIT.
See Pleading.
DIVOBOE.
See Adoption.
DOMESTIC RELATIONS LAW.
4 70, Lesser v. Lesser, 701.
i 111(3), Matter of Metzger, 313.
DOMICILE.
See Transfer Tul
DOWER.
See Exemptions.
ELECTION.
See Landlord and Tenaat
EQUITABLE CONVEBSION.
See Wills.
EQUITABLE DTTERPRETATIOV.
See Contracts.
EQUITY.
See Mortgages.
ESTATES IN EXPECTANCT.
See Transfer Tax.
ESTOPPEL.
See Exemptions; Executors and Administr
Pledge.
EVICTION.
See Pleading.
EVIDENCE.
See Actions; Bailments; Contracts; CUfts;
ance (Life); Judgments; Landlord a
Negligence; Negotiable Instraments; 1
Real Property Law; Ships and Shipping
ance; Summary Proceedings; Vendor i
734 INDEX.
EXAMINATION BEFORE TBIAL.
See BepoBitioiiB.
EXCISE.
See Liquor Tax Law.
EXEMPTIONS.
When widow not estopped from claiming her statutory right —
Husband and wife — Dower — Code Civ, Pro. J 2670. — Where in
1889, about a year after their marriage, the wife of decedent, who
died in 1920, executed a release of her dower and other rights which
she had or might have in and to his property, and it appears that
no children were born of the marriage; that since the execution of
the contract the parties had lived separate and apart, and that the
wife had never demanded or received any support or maintenance
from him, it must be held, under section 2670 of the Code of Civil
Procedure, that he died having a family, and that the wife was
not estopped from claiming her statutory right to have certain
property set apart to her as widow. Matter of Shulenburg, 155.
See Tax Law; Transfer Tax.
EXECUTIONS.
See SheriifB.
EXPRESS COMPANIES.
See DepoBltioiia.
EXECUTOBS AND ADMINISTBATOES.
1. When application for letters of administration granted —
Statutes ^Preference --Code Civ. Pro. }4 2564, 2565, 2588(2).—
A surrogate has no discretion to exclude a person declared by statute
to be entitled to priority of appointment as administrator, except in
cases where his disqualification is declared by the statute itself.
After the death of a wife intestate, her surviving husband died
leaving a will by which he gave one- third of his estate to a son,
one-third to a daughter, who favored the appointment of the son
as administrator of the mother's estate, one-sixth to a daughter who
favored the appointment of another daughter who was given one-
sixth of the estate for life, with remainder to the son. The father's
will is being contested by the daughter who petitions for letters of
administration, and the daughter who favors such appointment.
Held, that facts alleged against the son, who opposed the appoint-
ment of his sister as administratrix, not being such as are set forth
in either section 2564 or 2565 of the Code of Civil Procedure as
constituting disqualification to receive letters of administration or
as conditions warranting a refusal to grant them to him, his appli-
cation therefor will be granted and the application of the daughter
denied, as. though both had an equal right of administration, under
section 2588(2) men must be preferred to women. Matter of Mc-
Owen, 151.
2. When order will he made directing executor to eonveif real
estate pursuant to contract — Wills — Estoppel — Code Civ. Pro.
^ 2697. — Where by a deed of conveyance of a farm, containing a
reservation to the grantor of the house and lot, a part of the farm,
INDEX. 735
EXECUTORS AKD ADMINISTBATOBS — Continued.
it was covenanted and agreed that the grantee, after the death of
his grantor or whenever she was ready to sell, should have the option
of buying the house and lot, an order may be granted under section
2G97 of the Code of Civil Procedure, directing the executor of the
grantor to execute and deliver to said grantee a deed of the house
and lot. The fact that said grantee when the will was read, by
which his grantor devised the house and lot subject to the option
given to him, stated that he did not desire the house and lot men-
tioned, did not estop him from claiming his rights under his contract
with the testatrix. Matter of Miller, 283.
3. Contested probate — When executor will not be appointed
temporary administrator — Incompetent persons — Code Civ, Pro.
J 2596. — Where the son, who is an epileptic, an inmate of a state
hospital and the only heir of testatrix, joins in an application of
his special guardians for the appointment of a temporary adminis->
trator under section 2596 of the Code of Civil Procedure, pending
the son's contested probate of the will before a jury, which cannot
be tried for some tune, the application may be granted as matter
of discretion. Upon the facts and the law applicable thereto it
would be an unwise exercise of discretion to appoint one of the
executors as such temporary administrator, even though he is a
prominent and responsible man of business, and though such a
course will cause the payment of an extra commission, a disinter-
ested and suitable person, an attorney and counselor at law, will be
appointed such administrator. Matter of Bumham, 455.
4. Alien enemies — Trading with the Enemy Act, } 7. — A pro-
ceeding under section 7 of the Trading with the Enemy Act, on
behalf of an alleged widow who is a resident citizen of Germany,
to revoke letters of administration granted upon the estate of her
alleged husband, cannot be further prosecuted until peace is formally
declared. Matter of Kuntzsch, 694.
See Acconnting; Oifts; Parent and Child; Surrogates' Oourta.
F0RE0L0SX7BE.
Mortgages — Default — When deficiency judgment may not be
entered for taxes and assessments. — Though the defendant in an
action to foreclose a mortgage who made the bond allows a default
to be taken against him, no judgment for deficiency may be entered
against him for taxes and assessments paid by plaintiff after the
action was commenced. Owen v. Bodine, 142.
See Mechanics' Liens; Mortgages; Pleading.
FOREIGN CORPORATIONS.
See Transfer Tax.
FRAUD.
See Contracts; PartnersMp.
GENERAL BUSINESS LAW.
jj 341, 345 — Witnesses testifying before legislative committee
not entitled to immunity from prosecution under said statute. — The
"Lockwood committee" is not a "court, magistrate or referee"
within the meaning of section 345 of the Qeneral Business Law.
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GENERAL BUSINESS LAW — Continued.
Where because of testimony g^iven by them as witnesses before the
joint committee of the senate and assembly (Lockwood committee),
as to their dealings with each other and with others, defendants
were charged by indictment with a violation of section 341 of the
General Business Law, they are not entitled to the immunity from
prosecution granted by section 345 of said statute. People v.
Bryant Co., 133.
J 91, Childs Co., Inc. v. P. Reardon Inc., 178.
GENERAL CORPORATION LAW.
4 16, Taplinger & Co. v. Ward & Co., 116.
GENERAL RULES OF PRACTIOE.
Rule 6, Buckley v. Sharpe, 206. I
GIPT OVER. i
See Wills.
GIFTS.
Causa mortis — Aeeouwting — Executors and administrators ^^
Jurisdiction — Surrogate's Court — Evidence — Code Civ, Pro,
f 2679. — Objection having been made to the accounts of an admin-
istrator for failure to account for the proceeds of a judgment
assigned by the decedent and satisfied of record, a motion to dismiss
the objection, on the ground that the Surrogate's Court has no
jurisdiction to determine the issues involved, will be denied under
section 2679 of the Code of Civil Procedure. Where, with the
exception of delivery, all the other elements of a gift causa mortis
of household furniture, of which decedent had no right of possession
until the termination of the lease of an apartment which he had
sublet, were amply proved and conceded, and it appears that he
had given the donee the keys of the apartment before the gift was
formally evidenced by a writing, it will be held that there was a
valid gift causa mortis. Matter of Goodwin, 39.
See Deeds.
GOODS, SOLD AND DELIVERED.
See Sales.
GREATER NEW YORK CHARTER.
a 149, 419, People ex rel. Mullen Cont. Co., Inc., v. Craig, 216.
GUARDIANS.
Who may be appointed — Infants — WiUs — Code Civ. Pro.
$ 2649. — Upon an application for the appointment of a guardian
of the person and estate of an infant, the fundamental and para-
mount consideration must be the welfare and best interests of the
infant. Where it is made to appear that the welfare and interests
of the infant will be best served by the appointment of some one
other than the petitioner, though not a relative, all other considera-
tions must give way. Where it appears that the interests of an
infant between the ages of thirteen and fourteen years will be best
served by the appointment of either his maternal grandmother or a
paternal aunt, and the infant expresses a preference for his grand-
mother, she will be appointed sruardian of his person and under
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INDEX. 737
QTJABDIANB — Continued.
section 2649 of the Code of Civil Procedure the executor and trustee
under the will of the father of the infant may be appointed guardian
of the infant's estate. Matter of McGuire, 81.
HIGHWAYS.
1. Immunity of state. — When state not negligent in care of high-
'ways — Claims — Highway Law, J 176. — The state is always im-
mune from actions or lia}>ility unless it expressly waives such
immunity and assumes liahility. By section 176 of the Highway
T^aw (Laws of 1909, chap. 30, as amended) the state assumes lia-
bility for defects in its highways where the state highway is under
the patrol system. It is not negligence on the part of the state to
place gravel upon the dirt part of a state highway, worn away
from time to time, and bring it up to the level of the macadam
surface part of the road. While claimant's intestate, a boy about
seven years of age, was riding as a passenger on an auto bus which
• was being driven along a state highway operated under the patrol
system, the steering gear of the bus broke and the driver could
neither guide nor control it. He applied both the front and emergency
brakes but the momentum carried the bus along for some distance,
and while so moving the left front wheel ran on the hard surface
of the macadam road and the right wheel ran on the loose gravel
part of the road, thus deflecting the course of the bus toward the
north edge of the road. When the bus got to the edge of the road
it had almost stopped, but still had momentum sufficient to bring
the right front wheel over the edge of the road when the" bus over-
turned, dropped to the bottom of the embankment in the field adjoin-
ing and in going down it struck the top of the retaining wall and
tore some of it out. Claimant's intestate was caught between the
top of the seat in the bus and the bottom of the embankment and
was so injured that within a short time he died. Just before the
accident the state had placed on each side of the macadam part
of the road at the place of the accident several inches in thickness
of loose gravel and had brought the sides up to a level with the
macadam part of the road and left the dirt and gravel to become
hard and packed by the use of the public, but at the time of the
accident the gravel had not become hard or packed. Held, that the
conditions as they existed at the time of the accident were not
" defects " within the meaning of section 176 of the Highway Law
and the claim herein will be dismissed on the ground that the state
was not negligent in failing to anticipate the emergency that occurred
at the time of the accident. Best v. State of New York, 272.
2. Injury sustained by fall on privately constructed sidepath —
State not liable, — Claimant, while walking on a sidepath along a
public highway constructed by the state and maintained under the
patrol system, caught her foot on a flagstone covering a sluiceway
under the sidepath which had been constructed many years ago
by residents in the vicinity for their own convenience and used
quite extensively by pedestrians, and as a result she fell and broke
her arm. Held, that the state was not liable and a claim for
damages will be dismissed. Kibner v. State of New York, 444.
manwAY law.
j 176, Best V. State of New York, 272.
47
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738 INDEX.
HUSBAND AND WIFE.
1. When payment under separation agreement released by div<free^
— Upon entry of the final decree in a wife's action for divorce, the
defendant's legal obligation to support her comes to an end and he
is released from the payment of any smn due under a sepajnation
agreement which did not in terms provide as to the length o£ time
the weekly payments thereunder should continue. However, the
defendant is liable for any payment falling due prior to the eiitr>'
of the final decree, and plaintiff is entitled to judgment for the
amount thereof. Boate v. Boate, 321.
2. Action for separation — Dismissal of complaint on merits —
Judgment may not be amended so as to provide for education and
maintenance of children — Code Civ. Pro. 4 1771 — Remedy is under
Domestic Relations Law, % 70. Lesser v. Lesser, 70L
See Adoption; Wills.
INCOMPETENT PERSONS.
See Executors and Administraton; Lunatics.
INDICTMENTS.
When motion to dismiss granted — What constitutes a criminal
conspiracy — Landlord and tenant — Evidence — Criminal law —
Penal Law, ( 580(5). — To constitute a criminal conspiracy it must
appear either that the parties charged therewith agreed to conunit
a crime or that they agreed to employ criminal means to accomplish
a lawful end. Section 580(5) of the Penal Law does not apply to
real estate. A landlord who, before the expiration of the lease and
in violation thereof, by means which violate no then existing statute,
reenters the premises in the absence of the tenant, to make repairs,
is a mere trespasser and commits no crime by such act. Where on
motion to dismiss an indictment charging a landlord and the sup>erin-
tendent of an apartment house in the city of New York with con-
spiracy under section 580(5) of the Penal Law it appears that the
defendants, in entering the apartment of one of the tenants in his
absence for the purpose of making repairs, were not guilty of an
unlawful or forcible entry, the motion will be granted on the ground
that there was no legal evidence to sustain the indictment. It is
not every violation of a legal right that constitutes a crime, and if
the tenant sustained damage by reason of the act of defendants,
his remedy is by a civil action. People v. Zittel, 33.
INFANTS.
See Guardians; Parent and Child.
INJUNCTIONS.
1. When motion to vacate a temporary injunction granted —
Labor unions — Meaning of word " picketing " — Damages, —
Employees on strike may employ persuasion and peac€4ible means
to keep non-union men from taking their places, and the fact that
the employer is irreparably damaged as an incident of picketing
by the strikers and that it has no adequate remedy at Taw does
not deprive the strikers of their legal right to " picket," providing
there is no malice and no violence A motion to vacate a temporary
injunction principally against " picketing " granted in an action
brought for a permanent injunction against certain workmen of
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INDEX. 739
IK JUNCTIONS — Continued.
the plaintiff, out on strike, granted, with admonition to def^dants
that any excesses or violence or depredations or destruction of
property will result in another injunction, instanter. Wood Mowing
& Reaping Machine Co. v. Toohey, 186.
2. When plaintiff will be granted a mandatory injunction — Con-
tracts — Animals — Beceivers. — Where by a written agreement of
sale defendant was to have possession and use of a valuable stallion,
in California, during the seasons of 1919 and 1920, the plaintiff to
have liiiii for use in Kentucky during the seasons of 1921 and 1922,
and " thereafter on new arrangements mutually satisfactory," the
defendant has no legal right to insist upon any condition for the
return of the horse to plaintiff except to ship him to plaintiff's
stock farm in Kentucky, the season of 1921 now opening. Where
defendant flatly refuses to abide bv the agreement unless plaintiff
enters into a new agreement which is unsatisfactory to Mm, the
plaintiff will be granted a mandatory injunction requiring defendant
to ship the horse in accordance with their agreement, and enjoining
other disposition of him. Upon giving a bond a receiver of the
stallion will be appointed with power to take appropriate steps, in
California or elsewhere, and to invoke the aid of any court to gain
possession of the horse, and ship him to plaintiff's stock farm, to
which place he should have been sent in August or September, 1920.
Madden v. Rosseter, 416.
3. Summary appropriation by the state of disputed land, under
Laws of 1911, chap, 746, for canal uses, is a complete answer to a
motion to continue an injunction, — The rule that a public body may
not institute proceedings under the Condemnation Law to condemn
property which it claims to own, is not operative as against the
state in its appropriation of lands for canal terminal uses. Several
notices sent by the state superintendent of public works to plaintiff
directing him to remove that part of a building which he daime
to own, but which the state claimed encroached upon canal lands,
was followed by a letter of advice to the effect that in the case of
plaintiff's refusal or failure to make such removal, the department
of public works would cause the same to be demolished and removed
at plaintiff's expense. Held, that the summary appropriation by
the state of the portion of land in controversy, made pursuant to
statute (Laws of 1911, chap. 746) for Barge canal terminal uses,
was a complete answer to a motion to continue an injunction there-
tofore procured by plaintiff in an action brought to restrain the
defendant individually and as superintendent of public works from
entering upon the premises until the further order of the court.
Plaintiff's reliance upon the Statute of Limitations to buttress his
claim, if his title should otherwise fail, does not change the situation,
and he runs no hazard of being unjustly deprived of any advantage
attaching to his claim of ownership to the land in dispute, and his
rights are securely safeguarded against infringement without the
protection of an injunction. Miller v. Walsh, 6o.
4. Dramatic compositions — When licensee does not acquire motion
picture rights — Injunction pendente lite denied as to use of name, —
Under a grant by the author of a dramatic composition of the right
to translate and adapt it into the English language and to perform
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740 INDEX.
INJUKOTIONS — Continued.
or cause to be performed in said language, the licensee does not
acquire the motion picture rights to the play. Where subsequent
to such a grant the author of the play transferred the motion
picture rights therein to another, the licensee of the right of trans-
lation and spoken performance is not entitled, upon the theory of
unfair competition, to an injunction pendente lite to restraiu, in
connection with any motion picture production of the play, the use
of the title " The Passion Flower " which plaintiff devised for the
spoken drama and of lines, captions and titles m the English language
in connection with any such production. Underbill v. Schenck, 520.
6. When motion to continue injunction pendente lite granted —
Labor uniotis — Picketing — Restaurant keepers. — Plaintiff, engaged
in the restaurant business and employing approximately a hundred
persons in different capacities, has always maintained an "' open
shop " and has never discriminated against union labor. While its
restaurant about ten p. m. was crowded with patrons, who though
they had given their orders had not been served, all the waiters
without cause or grievance suddenly, without warning or notice,
walked out, and on the following day began picketing in front of
plaintiff's p]ace of business in squads of from two to fifteen persons,
each carrying a sign which read "Workers of Pie' Catelan on
strike for better conditions." It appeared by affidavits that as
part of a scheme to injure and demoralize plaintiff's business and
to produce fear on the part of its employees, some of them vrere
subjected to aggravated assaults and threatened that if they did
not cease working for plaintiff and join the union harm would
follow; that there were threats of injury to patrons; that in order
to protect its employees from harm plaintiff was put to the necessity
of carrying them to and from work in tazicabs. It also appeared
that agents of defendant, the International Federation of Workers
in the hotel, restaurant, etc., industry, had entered plaintiffs
premises, blocking the entrance thereto, and had used indecent
language to its employees, interfered with them in the discharge of
their duties, and followed them to their homes. Held, that a motion
to continue an injunction pendente lite will be granted. Pre' Catelan,
Inc., V. International Federation of Workers, 662.
6. When will be granted — Labor unions — Evidence — Ships and
shipping — Conspiracy — United States Shipping Act (39 U. S.
Stat, at Large, 728), 45 14, 16— United States Criminal Code, J 37.
— In an action by a large exporter of lumber at New York to
restrain a course of conduct which, if persisted in, would inevitably
bring financial ruin upon the plaintiff, some of the defendants,
representatives of a labor union, openly stated that there was an
avowed purpose on its part to force plaintiff to unionize its plant
This plan could not effectually be carried out without the coopera-
tion of such of the defendants as were the owners or agents of
steamship companies which under section 14 of the United States
Shipping Act (39 U. S. Stat, at Larp:e, 728), are required to serve
the public without discrimination. While there was no proof of
an agreement between the representatives of the steamship com-
panies and the union to refuse plaintiff's product, there was sufficient
evidence of their approval of, connivance at and sanctioning of
the acts of the emplo^'ees as to amount to an overt act on the part
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INDEX. 741
INJUKOTIONS — Continued.
of the steamship companies. Held, that the various acts of the
defendants alleged in the complaint amounted in law to a conspiracy.
The concerted action of the representatives of the steamship com-
panies, who evinced no desire to receive or handle plaintiff's lumber,
and their employees, none of whom did they discharge or reprimand
for discriminating against plaintiff, but openly sanctioned such con-
duct, leads to the accomplishment of an unlawful act; i, e.^ that of
violating both the United States Shipping Act and section 37 of the
United States Criminal Code. It being apparent that plaintiff will
suffer irreparable damage, for which it has uo proper or adequate
remedy at law, an injunction broad enough to include agents, steve-
dores, receiving clerks, etc., will be g^ranted against all of the
defendants under section 16 of said Shipping Act. Burgess Bros.
Co., Inc. V. Stewart, 673.
See Banks and Banking; Labor Unions; Mandamus; Member-
ship Associations; Picketing.
INSURANCE (LIFE).
When company hound by delivery of policy to assured although
conditions of policy are not complied with — Actions — Evidence —
Contracts, — The common practice of insurance companies placing
in the hands of agents policies which appear on their face to be
binding contracts of insurance, but which are intended to be effective
only on compliance with certain preliminary conditions, is not to
be commended, and if the agent deliver the policy without requiring
compliance with such conditions, the insurance company is in
justice bound by the policy. Where in an action to recover on a
policy of insurance issued by defendant on the life of plaintiff's
husband within a month of his death, the evidence is that the delivery
of the policy by defendant's soliciting agent to the insured, who
never signed the application for the policy, and his acceptance
thereof, were with intent that it should at once become a contract
and the first premium paid later, and it further appears that the
attention of the insured, though he had previously taken out other
insurance with defendant, was not called to any provision of the
policy requiring the signing of an application, or the payment of
the first premium, or any other preliminaries, and that the agent
had apparent authority to deliver the policy, it became a contract
binding upon both parties, and as against the defense that the
policy had no valid inception, plaintiff was entitled to recover the
amount of the policy less the amount of the first premium, with
interest from the date when the proceeds became due and payable.
Isaacs V. Equitable Life Assur. Society, 468.
See Transfer Tax.
INTERSTATE OOMMEBOE.
See Contracts.
JOINT TORT FEASORS.
See Judgments.
JUDGMENTS.
1. Joint tort feasors — When payment of judgment by attorney not
a satisfaction — Assignments — Evidence. — It is only when one of
several joint tort feasor judgment debtors pays the judgment that
it is satisfied as to all. The mere fact that the attornev for one of
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742 INDEX.
JUDGMENTS — Continued.
the judgment debtors, without the knowledge of his client, pays
the amount of the judgment to the judgment creditor and takes an
assignment thereof to a third person^ is no proof that the intention
was to satisfy the judgment. Kor is the fact that the as8ig:nment
was made for the purpose of collecting the judgment from the otlier
joint judgment debtor proof that the payment was made in satis^
faction of the judgment. A stranger may purchase a judgment
without notice to any party to it and thus acquire all the rights of
the judgment creditor. The authority of the attorney of an iinsae-
cessful defendant ceases with the entry of judgment against him.
While the property of one of two joint tort feasor judgment debtors
was under a levy made under an execution issued on the judgment,
one who had been his attorney in the action, without the knowledge
of either of the judgment debtors, voluntarily paid the judgment
from his own money, took an assignment of the judgment to his
stenographer, and after the execution had been withdrawn and the
levy released, he issued a new execution on the judgment against
the property of the other judgment debtor. Held, that such pay-
ment was not a satisfaction of the judgment. In the absence of
proof that the attorney acted for his former client or even sus-
tained the relation to him of attorney at the time of making pay-
ment, the proof being that his former client made no request that
the judgment be paid, there was no i)resumption that said attorney
acted in the matter as attorney for his former client, and the com-
plaint in an action by the other judgment debtor, to restrain the
collection of the judgment, will be dismissed. International R. Co.
V. Pickarski, 349.
2. Proceedings for sale of infants' real estate — Title — Specific
performance — Code Civ. Pro,, }$ 1646, 1679. — The complaint in
an action brought against infants under section 1638 et seq. of the
Code of Civil Procedure to compel a determination of their adverse
claims to plaintiffs* title to certain real property set forth ;• pro-
ceeding for the sale of defendants' interest in the property, alleged
that a sale thereof by their mother, as special guardian, was in good
faith and for full consideration, and that reconveyance of the prop-
erty to her individually, who conveyed to plaintiffs, was made in
good faith " and for the .interest and welfare of the defendants."
Judgment was entered in favor of plaintiffs forever barring the
defendants from all claims to any estate, right, title or interest
in and to the property. The vendee named in a contract for the
sale of the property objected to the title as unmarketable on the
ground that a finding of the court that the sale of the property
to the mother was made " in good faith and for the interest and
welfare of defendants'' impressed some kind of a trust upon the
property for the benefit of the infants. Held, that the answer to
such contention was, that reading the quoted words in connection
with the findings and judgment as a whole, which negatived any
declaration of trust in favor of the infants, they meant simply that
the infants' proceeding in its entirety, including the sale and dis-
position of the infants' interest in the property, was for their
interest and welfare. The findings of the court in the other action,
that the special guardian " duly " sold the defendants' interest and
that such sale, which was direrfly approved in the infants' proceed-
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INDEX 743
JUDGMENTS — Continued.
ing, was made ''in good faith and for a valuable and fall con-
sideration" was binding on the court in the present action and
i¥as an answer to a contention that any deed to the mother, as
purchaser, was void under section 1679 of the Code of Civil Pro-
cedure, and that her deed to plaintiffs conveyed nothing. Section
1646 of the Code of Civil Procedure does not confer upon infants
an absolute right to a new trial, and a contention that such a right
was sufiGicient of itself to render the title unmarketable, is untenable,
and in a vendor's action to compel specific performance of a con-
tract for the sale of the property the plaintiffs are entitled to judg-
ment. Kussold V. Behrman, 682.
See New Trial.
JUDICIAL DISCRETION.
See Trial
JT7BISDICTI0N.
See Court of Claims; Ships and Shipping.
JXJET.
See Trial.
LABOR DISPUTES.
See Membership Corporations.
LABOR UNIONS.
See Injunctions; Picketing.
LAND CONTRACTS.
See Specific Performance.
LANDLORD AND TENANT.
1. Action by corporation landlord for rent of an apartment in
the city of New York — Motion to change place of trial from county
of plaintiff's residence to New York county granted as matter of
right — Motion to change venue for convenience of witnesses not
waived by former motion, — Justice is not promoted by permitting a
landlord, incorporated to own and rent a building in the city of
New York, to bring an action for a small amount of rent in a
county wherein it claims a residence remote from the county where
the leasing was made, and in which all persons interested and their
necessary witnesses have their actual residence and may easily resort
to the courts. Where in an action brought by such a landlord to
recover rent for an apartment in the city of New York for the
months of October and November, 1920, under a written lease entered
into on September 20, 1920, the answer pleads the defenses per-
mitted by chapter 944 of the Laws of 1920 which went into effect
September 27, 1920, and it is plainly apparent that the venue, as
laid, was to vex the defendant and make difficult her opportunity
for defense, her motion to change the place of trial to the county
of New York will be granted as a matter of right. Nortbway Hold-
ing Co., Inc., V. Parker, 57.
2. Summary proceedings — Objectionable tenant — When dis-
missal of petition is error — No appeal unless a final order is entered,
— Upon the trial of a summary proceeding instituted October 6,
1920, against a holdover tenant of an apartment, alleged to be
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LANDLOBD AND TENANT — Continued.
objectionable, the landlords produced as witnesses several occupants
of apartments in the same and adjoining house, who testified to
conduct on the part of defendant sufficient to sustain the specifi-
cations in the petition of the alleged objectionable nature of his
occupancy, but none of them could testify, as alleged in the petition,
that any refuse was thrown from the windows of the tenant s
apartment or that any piano therein was unreasonably used after
June, 1920. Held, that the dismissal of the petition upon the
ground that under the statute (Laws of 1920, chap. 942) the pro-
ceeding could be maintained only if the tenant was doing objection-
able things at the time the proceeding was instituted, was error, for
the reason that the trial judge had no right to take the case from
the jury because of the absence of evidence that the objectionable
acts had continued over the summer. Where no final order has been
entered in a summary proceeding, an appeal from a dismissal of
the landlord's petition must be dismissed. Klingenbeck v. Yoon^,
121.
3. When action for use and occupation maintainable — Lease —
Election — Laws of 1920, chap, 944, J} 5, 6. — Where premises in
the city of New York were leased for dwelling purposes for one
year ending September 30, 1920, an action to recover the reason-
able value of the use and occupation of the premises for the months
of October and November, 1920, during all of which time the defend-
ant was in possession, is an election on the part of the plaintiff to
regard the defendant as a tenant and not as a trespasser, and such
election is conclusive upon both parties. Under the provisions of
sections 5 and 6 of chapter 944 of the Laws of 1920, by which the
legislature intended to confer upon the owner of residence property,
such as here, a right of action to secure a fair and reasonable rent,
an action to recover for use and occupation is maintainable and the
plaintiff is not necessarily limited to a recovery of the same rent as
was reserved in the lease, which has expired. 17 & 19 East 95th
St, Inc. V. Bernstein, 513.
See Oonnterclaim; Eviction; Indictments; Lease; Statutes;
Summary Proceedings; Venue.
LEASE.
1. Construction of — Personal covenants — Landlord and tenant
— Cancellation clause — Summary proceedings — Evidence. — If
there is any doubt or uncertainty as to the meaning of a lc:ise, it
will be construed in favor of the tenant. A lease not in terms pro-
viding that the conditions and covenants thereof should bind the
legal representatives, heirs and assigns of the parties, contained the
following: " Said landlord reserves the right to terminate this lease
and the term thereof at any time after May 1, 1920, in case of a
bona fide sale of the property upon giving 90 days' notice in
writing to said tenant, addressed to said demised premises, of his
intention to so tenninate the same, and this lease and the terni
thereof shall cease, determine and end at the expiration of 90 days
from the day when such no tee is given.'' Held, that the covenant
contained in said clause did not run with the land but was purely
personal to the landlord and he having died without having exercised
the privilege to terminate the lease, it could not be exercised by any
INDEX. 745
ZiEASE — Continued.
subsequent grantee of the premises. The present landlord in a sum-
iiuiry proceeding against the tenant as a holdover after service upon
him of the ninety days' notice called for by the lease, having failed
to establish that the conveyance of the premises to said landlord by
the grantee of the executors of the original landlord, was a bona
pde sale which would entitle the petitioner to any rights under the
cancellation clause, even if it were held that the covenant was one
running with the land, the tenant is entitled to a final order dis-
missing the proceeding upon the merits. The deposition of the
agent of the landlord, who as broker negotiated the lease with the
tenant, was inadmisible in evidence, the provision of the lease not
being ambiguous. 507 Madison Ave. Realty Co., Inc., v. Martin, 315.
2. Exercise of option to renew — Notice — Landlord and tenant —
Summary proceedings — Evidence. — By a lease expiring April 30,
1920, the tenant had the option of a renewal for three years upon
giving notice to the landlord by registered mail between April 1
and November 1, 1919. During that time the tenant gave both oral
and written notice to the general agent of thr landlord having charge
of the premises and collection of rents, that he exercised his option
to renew. Held, that where the testimony of the tenant in a sum-
mary proceeding against him as a holdover brought by one who
became the owner of the premises during the continuance of the
lease, was to the effect that when he gave the oral and written notice
he was told by the agent that notice by registered mail was not
necessary, was denied by the agent, a question of fact was presented
and a final order in favor of the landlord entered by direction of the
court after a jury trial will be reversed and a new trial ordered.
Northmann v. Haas, 384.
3. When provisions of old lease not incorporated in renewal lease
^--Landlord and tenant — Summary proceedings. — Where the pro-
visions of an old lease are continued in a new lease by reference
only, a provision of the former lease for a renewal of the term is
not incorporated in the new lease, unless that intention is clearly
expressed. Where the right to a renewal of a five-year lease has
been lost by failure to give the proper notice for an extension of
the term, and the assignee of all the tenant's rights, without objec-
tion on the part of the landlord, continues ia possession of the
premises for one month beyond the term, a new lease given to him
for five years from the expiration of the old lease, containing no
specific provision for a renewal, is only a lease for a term of five
years, even though the provisions of the old lease by reference are
incorporated in the new one, which declares that it was intended
as a renewal of the old lease. Where in summary proceedings insti-
tuted against the assignee of the lease as a holdover, his only claim
is that by the terms of the new lease he was entitled to at least a
further term of two years, the landlord will be granted a final order
awarding him possession of the premises. Jones v. Codomitros, 447.
See Pleading; Smiimary Proceedingi.
LEGAOT.
SeeWiUs.
UOENSES.
See Injunction; ICandamniL
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LIFS ESTATES.
See Tranafer Tax; Willfl.
LIQUOR TAX LAW.
i 7, as amended in 1918 — Powers of state eomfnissioner of excise
— When claim for salary dismissed — Statutes — State Finance
Law, i 36.— Under section 7 of the Liquor Tax Law, as amended in
1918, the state commissioner of excise has power to appoint Especial
agents at an annual salary, but as the statute fixes no term of ofBce,
the commissioner of excise may in his discretion discharge or remove
a special agent at any time. Where the state commissioner of excise,
as in duty bound by section 35 of the State Finance Law, notifies a
special agent appointed by him under section 7 of the Liquor Tax
Law, that the legislature has made no appropriation for sx>ecial
agents, beyond March 31, 1920, such action of the commissionr is a
notification to the special agent, who was serving in continuance of
a probationary appointment made in 1915, that his services would
be no longer required, and his claim for salary for the month of
April, 19^, must be dismissed. Heinemann v. State of New Yox^
265.
LUNATICS.
See Actions.
MANDAMUS.
1. When denied against comptroller of the city of New York —
Contracts — Municipal corporations — Fraud — Greater New Tork
Charter, H 149, 419. — Mandamus lies against public officers to com-
pel the performance of ministerial duties which are clearly absolute
and imperative. Where although the various engineers and auditors
whose duty it is, as a condition precedent to the issuance of a warrant
of the city of New York on account of work done pursuant to a
municipal contract involving an expenditure of more than $1,000,
to examine into the matter, have certified that work of the character
and quantity entitling a contractor to receive a progress payment
in a certain sum, has been done, the city comptroller may delay
payment pending an examination by him under section 149 of the
Greater New York Charter of the contractor under oath with respect
to facts and circumstances surrounding the public letting of the
contract, in order to determine whether it was of the character pro-
vided in section 419 of the Greater New York Charter, and whether
there was collusion in the bidding or fraud in the performance of
the contract. Where the contractor refuses to fully submit to such
an examination, his application for a writ of peremptory mandamus
to compel the issuance of the warrant will be denied as matter oi
discretion. The exception in said section 149 of the Greater New
York Charter refers to " claims arising under the provisions of con-
tracts made at public letting in the manner provided by section 419
of this act " was intended only to prevent an inquiry into the manner
in which a contract validly ente^ into by tiie city has been per-
formed, and not to one where the circumstances indicate that the
contract ori^nated in fraud; the exception, therefore, is not con-
trolling in the present case. People ex rel. Mullen Contracting Co.,
Inc., V. Craig, 216.
INDEX. 747
MANDAMUS — Continued.
2. When motion for writ of, denied — County clerk of Seneca
county — Jurors. — A writ of mandamus commanding the county
clerk of Senaca county to recognize as proper jurors those whose
names were drawn from the north district jury boxes, to cancel the
list drawn from the combined ballots, and to keep in separate boxes
the ballots bearing the names of grand jurors and of trial jurors
for the north and south districts, respectively, will be denied. Matter
of Seeley, 633.
3. Who entitled to a peremptory writ of — Licenses — Taxicabs
— Trade marks — Injunctions — Code of Ordinances of city of New
York, art. 8, chap. 14. — While mandamus will not lie to compel a
public officer to exercise a discretionary power, yet if his action in
a given matter is in a legal sense arbitrary, tyrannical or unreason-
able, or is based upon false information, the relator may have a
remedy to right the wrong which he has suffered. The provisions
of article 8, chapter 14, of the Code of Ordinances of the city of
New York not only indicate with accuracy the function of the com-
missioner of the department of licenses in regard to the issuance
of licenses to operate taxicabs as public hacks for hire, but also
suggest the reasonable limitations thereon to be the ascertainment of
the safety and fitness of cab and driver. Whether vehicles infringe
upon patents or trade marks or involve possibilities of unfair com-
petition with other instrumentalities of transportation is entirely
outside of the purview of the commissioners's duties. To a petition
for a writ of mandamus to compel the commissioner of the depart-
ment of licenses of the city of New York to issue to relators licenses
to operate their taxicabs as public hacks for hire, he made a return
that having learned that the courts had established for the ^^ Twen-
tieth Century Brown & White Taxicab Association, Inc., the right
to use the colors brown and white in a particular combination and
scheme, he had, in view of the facts and adjudications, and actuated
solely by a sense of public duty, refused to issue licenses to others
operating brown and white taxicabs, in the interest of and to con-
serve the public welfare, and to protect the public against the decen-
tion arising out of such simulation, ^eld, that it being quite
apparent that the adjudications in the actions which terminated in
injunctions in favor of the said association, did not establish its
right to the combination of brown and white colors, except against
the particular defendants in those suits, the statements in the return
to the petition for the writ indicated a radical misconception of the
significance of said adjudications. The decision of said commis-
sioner refusing to grant taxicab licenses to relators was based solely
on the adjudications in favor of the Brown & White Association.
There was no pretense that the public is otherwise injured by the
competition of relators and the various affidavits indicated that the
brown and white color is understood by the public to mean that cabs
so painted charge a lower rate than ordinary cabs. Held, that the
relators who charge such lower rates were entitled to a peremptory*
writ as applied for. People ex rel. Hultman v. Gilchrist, 661.
MABBIAQE.
See Actions; Oontracts.
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748 INDEX
MA8TE& AND 8EKVANT.
See Negligence.
MEOHANIOS' LIEN.
Forecloaure — Motions for leave to serve supplemental answ^t
and to intervene denied. — The final judgment in an action to fore-
close a mechanics' lien, from which no appeal was taken, directed
that the amount of the liens of the several defendant lienors be first
paid, then the amount of plaintiffs' lien, the surplus, if any, to be
paid into court After the entry of said judgment the directors of
the defendant owner, upon the affirmance of a judgment recovered
against them on their written guaranty that a first mortgage upon
the premises would be procured and a portion of the net proceeds
paid to the contractor, paid the judgment. Held, that a motion by
the defendant owner for leave to serve a supplemental answer and
a motion by said directors for leave to intervene, both motions lieinp^
predicated upon the fact of the payment of such judgment, will be
denied. The defendant lienors, v.bose rights in the real property, as
finally adjudicated in the lien action, are superior to those of the
others, have no concern with the differences among the others, ex-
cept that they be no longer delayed in securing the fruits of their
litigation. Van Etten v. Sphinx Holding Corp., 436.
MEMBERSHIP ASSOCIATIONS.
Action affainst — Code Civ. Pro. J J 1919, 1923 — Sufficiency of
complaint — Injunction pendente lite granted — Labor dispute. —
By section 1919 of the Code of Civil Procedure a simple method is
provided by permitting an action to be maintained against either
the president or treasurer of an unincorporated membership asso-
ciation, to bring the entire membership before the court, and if that
simple mode is not preferred, section 1923 of the Code of Civil Pro-
cedure preserves the common law right of suing all the members.
While the practice of suing one member, both individually and as
president, and another member individually and as assistant general
secretary, cannot be sanctioned, the complaint will not be con-
demned if in fact a cause of action was alleged against the presi-
dent. Where the complaint, in an action brought against the presi-
dent and assistant general secretary of the ^^Amalgamated Clothing
Workers of America,'' an unincorporated membership association
having an approximate membership of 175,000 workers in the
clothing trades, alleges that the defendants combined to do the inju-
rious acts arising out of labor troubles of which plaintiff, a clothing
manufacturer, complains, such allegations mean and charge all the
members and they are all liable. The complaint and affidavits on
motion for an injunction pendente lite considered and defendant's
motion for judgment on the pleadings denied and the injunction
granted. Skolny v. Hillman, 571.
MERGER.
See Wills.
MORTGAGES.
Recovery of money paid for agreement extending mortgage, which
agreement defendant failed to execute — Failure of consideration —
Equity — When findings in foreclosure action not res ad judicata. —
One who had acquired the title to property at the sale on foreclosure
of his own mortgage was told that he could have an extension for
INDEX. 748
MOBTQAGES — Continued.
two years of the first mortgage upon the property, held by defend-
ant and ahnost due, by a payment of $3,000 on the principal, interest
and other charges, and in order to avoid personal liability he trans-
ferred the title to plaintiff who alone signed the extension agreement
The $3,000 was paid to defendant by plaintiff from funds furnished
by his grantor but no part was ever returned by defendant, and it
never executed the extension agreement. In an action to foreclose
the first mortgage for its full amount, less the $3,000, the only issue
litigated was whether there had been an extension, whether the
mortgage was due when the action was begun. That issue was
decided in favor of the plaintiff in the foreclosure action and it
became the purchaser of the property at the sale. Held, that in an
action to recover the $3,000, which had been applied by defendant
on its mortgage, on the ground that the consideration had failed, the
findings in the foreclosure action with reference to the payment of
the $3,000 related to matters not litigated, and were not res ad judi-
cata in the present action. The foreclosure action was not com-
menced until the two years had been nearly completed, and the trial
and sale did not take place until after the lapse of such period, and
in the meantime the plaintiff herein had carried the property. Held,
that there was no controlling equity in defendant's favor, which
has all it could have had if it had not taken the $3,000, and that
plaintiff was entitled to recover such amount which had been paid
for something he did not get. Mehlhop v. Central Union Trust
Co., 464.
See Foredofinre; Beligions Oorporatioiis.
MOTIONS AND ORDERS.
Where defendant's motion for order of restitiUion denied —
Attachment — Foreign corporation. — Defendant, a foreign corpo-
ration, which did not appear in the action, has no property within
this state and is not doing business therein, delayed making the
motion to vacate the judgment for nearly a year. Held, that as in
the event of granting defendant's motion for an order of restitution
of its property taken by virtue of a warrant of attachment, plaintiff's
only relief would be to institute proceedings in the state of defend-
ant's residence, the motion will be denied. Berman, Inc., v. American
Fruit Distributing Co., 345.
See New Trial; Pleading; Process.
MUNICIPAL CORPORATIONS.
See Mandamus.
MUNICIPAL COURT OF CITT OF NEW TORE.
See Service.
NEGLIGHNCE.
1. Action for personal injuries — Statutes — Carriers — Corpo-
rations— Pleading — Tort, — An action against a common carrier
to recover damages for personal injuries to a passenger is an action
ex delicto and not ex contractu. Where the complaint alleges that
while plaintiff was a passenger on defendant's steamer, and without
fault on his part, a door was cloRcd on his hand by reason of the
negligence of defendant, its agents, servants and employees, to his
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750 INDEX.
KEGLIGEKOE — Continued.
personal injury, for which he demanded judgment in a eertain sum,
the action is in tort. An allegation that defendant, the '' Palisa4ies
Interstate Park Commission/' is a domestic corporation is subject
to the modification that the court must take jucQcial notice of and
review the statutes relating to defendant, its organization and pur-
poses, precisely the same as if said statutes had been incorporated
in the complaint. The fact that defendant by the statute creating
it (Laws of 1900, chap. 170, and amendatory acts) was given express
power to sue and be sued, does not subject it to liability to an
individual for negligence in the performance of a public duty, and
the complaint on demurrer will be dismissed, with leave to plaintiff
to plead over on presentation of an afiftdavit showing facts that
will enable him to overcome the defects in his pleading. Dietrich
V. Palisades Interstate Park Comm., 425.
2. Action to recover for loss of a handbag — Master and serfjant
— Evidence — Bailments. — While the conductor was examining and
stampinp^ the tickets of plaintiff, a Pullman passenger, the porter
carried into the car plaintiff's luggage, consisting of overcoat, port-
folio and handbag, and when not to exceed two minutes later plain-
tiff went into the car he found only his overcoat and portfolio. In
an action against the director-general of railroads, as agent, to
recover for the loss of plaintiff's handbag through the alleged n^-
ligence of defendant's servant, it appeared that while the examina-
tion of plaintiff's tickets was in progress the porter, whom it did
not appear was a servant of defendant, came out of the car empty
handed and left after being tipped by plaintiff. Held, that it could
not be assumed that tibe bag was left in the custody of defendant
so as to make it liable as an insurer. There being no basis in the
evidence for a finding of negligence on the part of defendant a
judgment in favor of plaintiff will be reversed and the complaint
dismissed. Sneddon v. Payne, 537.
See Oonyersion; Damages; Highways.
NEGOTIABLE mSTBUMENTS.
1. Promissory notes made payable in France — When loss from
depreciation of French money is not an element of damage — Bate
of exchange — Evidence, — Where at the time certain promissory
notes given for the purchase price of shares in a French corporation
and made payable in France in francs, both of the parties to the
notes resided in that country, the plaintiff in an action on the notes
is entitled to recover, in dollars, the amount of the notes computed
at the rate of exchange existing when the action was begun. It
was defendant's duty when sued to pay the amount of the notes in
dollars, and he will not be permitted to take advantage of a change
in the rate of exchange in his favor by withholding payment. In
the absence of proof to the contrary it will be presumed that the
law of France is similar to our own, and therefore the loss from
depreciation of French money is not an element of damage, the only
damages recoverable for non-payment of the notes at maturity being
interest Revillon v. Demme, 1.
2. Lack of authority in officers of a religious corporation to issue
notes — Evidence. — A business act of a religious corporation must
be shown to have been duly authorized before any liability therefor
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INDEX. 751
KEOOTIABLE mSTBUMENTS — Continued,
'will attach. A promissory note purporting to have been made by
a religious corporation organized under the Laws of 1813 can only
be authorized at a meeting of five of the nine trustees which the
corporation was authorized to elect each year. Proof that such a
note was signed by the president, secretary and treasurer of the cor-
poration does not show that it is the note of the corporation with-
out proof that it was made by its authority. The fact that not
all of the nine trustees were acting as such w^hen the note was
made does not change the requirement that five trustees were
necessary to constitute a quorum. The evidence in an action on
the note being insufficient to support a finding that it was authorized
by the board of trustees, and the record on appeal from a judg-
ment in favor of plaintiff not showing that defendant received the
money represented by the note, and that the corporation by its
board of trustees never admitted its liability thereon, the jud^ent
appealed from will be reversed and a new trial ordered. Parucki
▼. Polish National Catholic Church, 6.
3. Check drawn in Mexico and payable in New York on condition
considered to be a Mexican transaction — When defendant entitled
to judgments — A check written in the Spanish language and pay-
able in dollars in New York city, was made by defendant, a firm
of bankers in Mexico, and there delivered to the payee upon the
condition in writing that if a draft given to defendant by the payee
at the time, was not paid, the check was to be void and of no value.
The draft was not paid, and pajTuent of the check was stopped.
In an action on the check, which came to plaintifi^'s assignor by
indorsements made in Mexico, defendant pleaded a breach of the
condition upon which the check was given, and all the facts showed
that the case presented a Mexican transaction as to all parties except
the drawee of the check. Held, that New York law does not apply
and defendant is entitled to judgment. Hennenlotter v. De Orva-
nanos, 333.
4. Promissory notes and trade acceptances — Corporations —
Evidence, — Where at the. commencement of actions on promissory
notes and trade acceptances, the corporation maker was in bank-
ruptcy, the individual defendants, who were sought to be held as
makers and indorsers, in support of their contention that their
initials on the notes were neither intended nor understood by plain-
tiff to be other than part of the corporation signature, are entitled
to show that by a resolution of the corporation adopted long prior
to the making of the notes and acceptances in question, it had been
determined that no signature of the corporation to any negotiable
paper would be honored or paid unless the same was initialed by
said individual defendants, and that the banks were so notified and
as matter of fact had refused to pay notes made by the corporation
to plaintiff because of the lack of such initials, and the exclusion
of the evidence was reversible error for which judgments in favor
of plaintiff will be reversed and new trials ordered. H. & K. Cos-
tume Co., Inc. v. Maison Bernard Importing Co., Inc., 553.
See Banks and Banking; Oontracts; Pleadinf.
NEWLT DISCOVERED EVIDEKOE.
See New Trial.
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752 INDPJX.
N£W TRIAL.
Newly discovered evidence — When motion for a new trial denied
— Evidence — Judgments. — New trials are granted because of newly
discovered evidence for the purpose of giving to a party the benefit
of evidence of which he was unaware at the time of the pleadings
or trial, not for the purpose of permitting a defendant to needlessly
drag out a controversy. The essential characteristic of newly dis-
covered evidence is that it was unknown at the time of pleading or
trial, and has come to light since. Where the judgment in favor
of plaintiff in an action against a municipality has been unanimously
afl3rmed by the Appellate Division and leave to appeal has been
denied both by the Appellate Division and the Court of Appeals,
the plaintiff should not be put to the trouble and expense of a new
trial simply because the deiendant was unable to produce evidence,
a part of its public records, of which it knew when it put in its
answer and had within its control, and a motion for a new trial
upon the ground of newly discovered evidence will be denied with
costs. Postal Telegraph Cable Co. v. City of Jamestown, 689.
KOK-BESIDENTS.
See Transfer Tax.
NOTICE.
See Leaoe.
PARENT AND OHILD.
Father cannot be released by separation agreement with wife frotm
obligation to support his infant child — Executors and administra-
tors— Claim against decedents estate for support of an infant —
Accounting -^ Code Civ. Pro. J J 2680, 2681.— The father of an
infant is primarily liable for its maintenance, and even though by
the terms of a separation agreement the mother assumes liability
for the infant's maintenance, during her life, the obligation of the
father continues after the death of the mother until the child becomes
of age. A separation agreement in terms released the father from
all claims for the support and maintenance of his infant son during
the mother's life. At her death the son went to live with his imcle
who, after diligent search, was unable to locate the father. The
father's will made no provision for the child who is still a minor.
The uncle presented to the executor of the father's estate a duly
verified proof of claim for the maintenance, education and support
of the infant son for the six years next succeeding the death of his
mother. No notice was taken of the claim except by reference in
the account of the executor, filed nearly a year after the presentation
of the claim. Prior to the institution of a proceeding for the
judicial settlement of the accounts of the executor, to which the
uncle was not made a party nor included as a creditor of the estate,
an action to recover the amount of the claim so presented was
brought by the nncle on the theory that the debt sued on was based
upon a claim or debt against defendant's testator as provided by
sections 2680 and 2681 of the Code of Civil Procedure and the sepa-
ration agreement was pleaded in bar. It appeared that no part of
the money given by the father to the mother for the support of
herself and child, at the making of the separation agreement,
remained unexpended at the death of the mother who did not leave
er. •
INDEX 753
PARENT AND OHILD — Continued.
sufficient funds to bury her. Held, that the separation agreement
did not release the father from the payment of plaintiff's claim, was
not a bar to the action and that the plaintiff was entitled to judg-
ment for the full amount claimed, with interest from the date of
grant of letters testamentary. Michaels v. Flach, 225.
PAROL EVIDENOE.
See Accord and Satisfaction; Evidence.
PARTIES.
Contracts — Known usages. — Parties who contract on a subject-
matter concerning which known usages prevail, incorporate such
usages by implication into their agreement, if nothing is said to
the contrary. Carroll v. Harris, 392.
See DepoaitionB.
PARTNERSHIP.
Liability of firm for fraud of one partner — Statute of limita-
tions—Code Civ. Pro. 4 382(5).— A firm is liable for the fraud of
one partner in the course of the transactions and business of the
partnership, even when the other partners had not the slightest
connection with, knowledge of or participation in the fraud. Where
in an action against a firm with which plaintiff had an account, for
the misapplication of plaintiff's money by one of the partners with-
out the knowledge of the other partners, no claim is made that the
defendants other than the guilty partner had knowledge of or par-
ticipated in the fraud, the statute of limitations prescribed by sec-
tion 382(5) of the Code of Civil Procedure does not apply except
in so far as it relates to the claim against the guilty partner; the
liability of the other partners ends with the running of the statute
from the time of the actual wrong. Model Building & Loan Assn.
V. Reeves, 137.
PARTNERSHIP AGREEMENTS
See Transfer Tax; Wills.
PENAL LAW.
6 580(5), People v. Zittel, 33.
PERSONAL PROPERTY LAW.
i 15, Matter of Lee, 511.
i 62, Plymouth Rubber Co. v. Knott, 695.
JJ 100, rule 4(1, 2), 144(1), International Cheese Co. v. Oarra,
543.
H 145, 145(3), 156, Guaranty Trust Co. v. Meer, 327.
PICKETING.
Bight to picket — Strikes — Labor unions — Injunctions. — The
fundamental thought underlying the judicial decisions by which
solely the right to picket was created, was and is that the grant of
such right was in furtherance, not of a greater liberty to be exer-
cised by employees out on strike, but for their betterment, if such
result could be brought about. It was never intended that the laws
of the land shouH vield in the exercise of the right to picket The
48
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754 INDEX.
PICKETmO— Continued.
right to picket, even in an orderly and qniet manner, does not carry
with it the privilegre of destruction as a means to an end; nor does
it, even inierentially, confer the right to unlawfully coeitse or
oppress. Picketing unaccompanied by threats and intimidation is
a useless weapon; its effectiveness and its very essence is in the
terror it incites. Pre' Gatclan, Inc., v. International Federation of
Workers, 662.
See Injunction.
PLEADma.
1. When defense stricken out — Summary proceedings — Lease. —
In a summary proceeding to dispossess a teanut for non-payment
of rent of a dwelling apartment in the city of New York, he must,
at the time of filing an answer pleading that the rent is unreasonable,
deposit one month's rent as reserved in the lease, and for failure
so to do, the defense, on motion of the landlord, will be stricken out
400 Manhattan Avenue Corp. v. Danziger, 79.
2. When demurrer sustained — Services — Corporations —
Assignments — Stock Corporation Law, J 66. — Unless it appears
in an action to recover upon an assigned claim for services ren-
dered and material furnished by plaintiff's assignor, a corporation,
that plaintiff was an officer, director, stockholder or a creditor of
the corporation, the assignment is not null and void under section
66 of the Stock Corporation Law and said statute is not a defense
to the alleged cause of action. A separate defense, pleading that
the assignment set forth in the complaint, was executed by one H.
while he was assuming to act as the vice-president of the corpora-
tion, and was received by plaintiff with full knowledge and notice
of intention to give him a preference " as an alleged creditor " over
other creditors of the corporation, and for that reason the assign-
ment ,is null and void, is provable under the general denial in
the answer, and an order overuling a demurrer to the separato
defense will be reversed and the demurrer sustained with leave to
serve an amended answer. Bulova v. Bamett, Inc., 94.
3. When motion to strike out defense denied — Use and occupa-
tion — Statutes — Tender — Deposit — Tenant out of possession —
Laws of 1920, chap. 944, J 6. — In an action for use and occupation
the complaint alleged that prior to the commencement of the action
defendant vacated the premises, and the answer, after denials of
the allegations of the reasonable value of the use and occupation,
pleaded as a separate defense that the occupation of the premises
was under a special agreement fixing at a sum stated the rent to be
paid, conceded that a certain sum was due under said agreement,
and pleaded a tender thereof to plaintiff. A motion to strike out
said defense was made on the ground that under the statute (Laws
of 1920, chap. 444, f 6) it was improperly pleaded unless at the
time of answering defendants deposited with the clerk of the court
a sum equal to the amount paid as rent during the preceding month
or such sum as was reserved as rent under the agreement
under which possession was obtained. Held, that the defense
raised no issue under the statute as to the reasonableness of the
amount demanded in the complaint, nnd the motion will be denied
INDEX. 755
PLEADING •— Continued.
though it was conceded that the deposit called for by the statute
was not made. It was not the legislative intent that the require-
ment for a deposit should be applicable except in cases where the
tenant is in possession of the premises involved, at the time of the
institution or the suit, and a motion to strike out the denials, on the
same ground that the motion to strike out the separate defense was
made, will be denied. Riceobono v. Cleary, 174.
4. When demurrer to complaint overruled — Bestaurant keepers
— Injury to guest — When motion for judgment on the pleadings
denied, — Where in an action by one who while a guest in defendant's
restaurant was seriously injured by being struck on the head by a
heavy glass water tumbler thrown by a patron of the restaurant,
the complaint alleges that defendant had notice, through the con-
tinued offensive, boisterous and unlawful conduct of the patron who
threw the tumbler, a demurrer to the complaint upon the ground
that it does not state facts sufficient to constitute a cause of action
will be overruled, and defendant's motion for judgment on the plead-
ings denied with leave to serve an answer. Molloy v. Coletti, 177.
5. When demurrer to complaint sustained — Contracts — Nego-
tiable instruments — Damages — Foreign exchange — Personal
Property Law, $$ 145, 145(3), 156. — A complaint alleged a written
contract under which plaintiff agreed to sell and deliver to defend-
ant at the city of New York 500,000 French francs, check on Paris,
France, at the rate of 8.33 francs per dollar. Within a few days
after defendant had notified plaintiff that he repudiated "the con-
tract, plaintiff sold the francs in the city of New York at the then
current market rate of 16.56 francs per dollar, and at a result of
the credit to defendant of the amount realized on such sale, defend-
ant still remained indebted to plaintiff in a certain sum for which
judgment was demanded. Held, that the measure of damages, in
the absence of an allegation of '' special circumstances showing
proximate damage of a greater amount/' was under section 146(3)
of the Personal Property Law the difference between the contract
price and the market price at the time when the money ought to
have been accepted. It appearing that had plaintiff held the money
until the date fixed for its delivery, the loss sustained would have
been several thousand dollars less than established by the sale, a
demurrer to the complaint on the ground that plaintiff in his demand
for judgment had adopted the wrong measure of damages, will be
sustained. Guaranty Trust Co. v. Meer, 327.
6. When motion for order requiring plaintiff to serve an amended
complaint granted — Allegations contained in complaint — Damages
— Actions. — A plaintiff taking the ground that his complaint states
but a single cause of action should plead the facts in such manner
as to enable the defendant to hold him to that position throughout
the litigation. Where as against the contention of the defendant
that the facts alleged in the complaint may readily be made the
basis of an action either for an assault, false imprisonment or mali-
cious prosecution, the plaintiff maintains that the allegations of the
complaint constitute but a single cause of action growing out of a
series of occurrences having relation to but one continuous trans-
action with special circumstances of injury or aggravation as to
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756 INDEX.
PLEADING — Continued.
each step in the progress of the affair, defendant's motion for an
order requiring plaintiff to serve an amended complaint separately
stating and numbering the facts constituting the various causes of
action which defendant claims to be embraced in the complaint,
will be granted, unless within the time fixed by the order to be
entered plaintiff stipulates in writing that he intends and desires to
state only a cause of action for false arrest and imprisonment, and
he should specify which allegations are pleaded in chief and whicii
in aggravation of damages. Loew v. Ostreicher Bros., 404.
7. Foreclosure — Answer — Statute Of Frauds — Accounting —
When motion for judgment on the pleadings denied, — Prior to the
sale on foreclosure of a mortgage in which plaintiffs and defendant
were participating owners, it was orally agreed that plaintiffs
would refrain from bidding at the sale and that defendant should
become the purchaser of the premises at a price not in excess of tlie
amount due on the mortgage, together with taxes and expenses.
Defendant, who bought in the premises at the sale, refused to carry
out the agreement and held the property as its own for a number
of years, collecting the income, and without notice to plaintiffs, con-
veyed the property and appropriated the proceeds of sale to its own
use. In an action alleging the facts and demanding judgment
declaring defendant a trustee for plaintiffs and requiring defendant
to account for the proceeds of the sale in excess of the amount
adjudged to be due it under the judgment of foreclosure and sale,
the answer, besides a general denial, pleaded the Statute of Frauds
as a defense. Held, that the facts pleaded, if proven, would make
out a prima facie case, and defendant's motion for judgment on the
pleadings will be denied. Fletcher v. Manhattan Life Ins. Co., 409.
8. When complaint demurrable — Corporations — Use of sur^
name — CivU Bights Law, $4 50, 51. — In the absence of equitable
considerations, a complaint against a corporation that its use of
plaintiff's surname for advertising or trade purposes constitutes a
violation of the statute (Civil Rights Law, 4 J 50, 51), which pro-
hibits such use, is demurrable on the ground that under ttie statute
alone, the plaintiff is not entitled to an injunction or damages for
such alleged use of his surname. Pfaudler v. Pfaudler Co., 477.
9. When defendant not entitled to an order to compel plaintiff to
amend complaint — Carriers — Actions. — Where a complaint, as a
second cause of action, alleges that plaintiffs tendered to the defend-
ant certain shipments of merchandise for transportation to various
points upon its own and connecting lines; that defendant supplied
for such shipment ordinary box cars, but that plaintiffs, in order
to load the cars, either to minimum or maximum capacity, were com-
pelled to equip them with inside or grain doors or bulkheads, at an
expense of a specified sum, defendant is not entitled to an order
requiring plaintiffs to amend the complaint by separately stating
and numbering the causes of action contained in the second cause
of action, and defendant's motion for such an order will be denied.
Loomis V. Lehigh Valley R. R. Co., 480.
10. Action for rent — Sub-tenant — Eviction — Counterclaim, —
Tn an action for rent an answer pleading as a defense the eviction
of defendant's sub-tenant, and, as a counterclaim, the damages
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INDEX. 757
PLE ADINQ — ContinucKl.
resulting from such eviction, is on its face sufiftcient, and a judg-
ment in favor of plaintiff and for the dismissal of the counterclaim
will be reversed and a new trial granted. O'Connell v. Sugar Prod-
ucts Co., 540.
See Bill of Particulars; Oontracts; Mechanics' liens; Negli-
gence; Summary Proceedings.
PLEDGS.
When doctrine of estoppel does not apply — Conversion — Evi-
dence,— Where in an action for conversion the evidence is con-
vincing that, notwithstanding a memorandum signed by one at the
time plaintiff delivered to her a watch, it was to remain the prop-
erty of plaintiff and be returned on demand, she was intrusted with
the possession of the watch for the purposes of sale, she must be
deemed the true owner, and a judgment against the defendant with
whom she pawned the watch will be reversed and the complaint dis-
missed. It appearing that defendant had no knowledge of and did
not rely on any previous dealings between plaintiff and the pledgor,
the doctrine of estoppel did not apply. Kupchick y. Levy, 533.
POWEB OF SALE.
See Wills.
PBEFEBENOE.
See Ezecatora and Administrators; Trial
PRINCIPAL AND AGENT.
See Ships and Shipping.
PROBATE.
See Wills.
PROCESS.
Service by puhlicatiou — Where papers must be mailed — When
motion to vacate judgment granted — Code Civ. Pro. J 440. — Serv-
ice of an order of publication, together with the summons and com-
plaint, by depositing the papers, contained in a securely closed
postpaid wrapper, in a letter-box other than in the post-office, is
not good. Where an order for the service of the summons directed
that a copy of the summons and complaint and order of publication,
contained in a securely closed postpaid wrapper, be deposited in the
post-office as required by section 44*0 of the Code of Civil Procedure,
but upon application for judgment the only proof of mailing was
an affidavit stating that the papers were deposited in a depositary
maintained by the United States government in a privately owned
building, the defect is jurisdictional and not merely an irregularity,
and defendant's motion to vacate the judgment will be granted.
Herman, Inc., v. American Fruit Distributing Co., 345.
PUBLICATION.
See Process.
REAL ESTATE.
See Acconnting.
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758 INDEX.
BEAL PBOPEBTT.
See Title.
BEAL PBOPEBTT LAW.
1. Sections 106, 107 — When sale of real estate by a testamentary
trustee wiU be approved — Evidence. — ^A sale of real estate by a
testamentary trustee pursuant to leave g^nted under sections lOS
and 107 of the Real Property Law will not be rejected, because,
pending the application for leave to sell and a hearing thereon,
there has been an increase in values. The sale will be approved at
the price otfered, which the testimony shows to have been fair when
made and accepted subject to the approval of the court. Matter of
Central Union Trust Co., 214.
2. J 37S{3)^ Registration of title.— M&tter of Prime, 720.
5 42. Matter of Fitzsimmons, 71.
a 42, 61, 97, 99. WooUey v. Hutchins, 11.
i 259. Schaefer v. Steuemagel, 540.
BEOEIVEBS.
See InjunctionB.
BEGISTBATIOK OF TITLE.
See Beal Property Law.
BELIGIOUS OOEPOBATIONS.
When application for leave to mortgage real property must be
on consent of majority of members. — The trustees of a religious
corporation having a congregational form of government have no
power to initiate proceedings to sell or mortgage the real property
of the corporation without the consent of the members. Under the
present Religious Corporations Law such consent of the members
g^ven by a majority vote at a meeting, or in some manner in accord-
ance with legally adopted by-laws, is requisite to authorize the
trustees to make such an application. The application herein mak-
ing no reference to any such by-law now in force will be denied
with leave to renew on further papers. Matter of Beth Israel of
Brownsville, 582.
See Negotiable Instniments.
BES ADJUDIOATA.
See Mortgages.
BESOISSION.
See Contracts.
BESTAUEANT KEEPEB8.
See Injunctions; Pleading.
SALES.
1. Action for goods sold and delivered — Retention of partial
delivery — Counterclaim — Damages. — While a vendee who accepts,
retains and uses a partial delivery of goods due in a single delivery
may be held for the purchase price thereof he is also entitled to relief
against the vendor for damages because of delay or default in the
delivery of the balance of the goods. An oral contract for the sale
of luminette called for the deliver}' of three pieces at once, and
twenty-one pieces to be shipped during the months of October and
November, 1919, upon plaintiff's receipt of same. Prior to the date
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INDEX. 759
SALES — Continued
when payment for the three pieces fell due, the plaintiff had received
a number of pieces from his consignor but none had been delivered
to defendant though he made frequent requests therefor. Plaintiff's
demand for payment for the three pieces was refused because of his
failure to deliver the remaining pieces called for by the contract.
In an action for goods sold and delivered the defendant counter-
claimed for the increased v&lue of the goods not delivered because
in the meantime their market price had risen. Held, that whether
defendant suffered any damages by reason of plaintiff's failure to
deliver according to the contract, was a question which should have
been submitted to the jury, and a judgment entered upon a verdict
directed in plaintiff's favor, after the dismissal of the counterclaim,
will be reversed and a new trial ordered. Harris v. Einhom, 387.
2. When property in goods delivered to a carrier for transmission
passes to the buyer — Contracts — Evidence — Damages — Per-
sonal Property Law, JJ 100, rule 4 (1, 2), 144(1).— Under subdi-
visions 1 and 2 of rule 4 of section 100 of the Personal Property
Law the property in goods delivered to a carrier for transmission
passes to the buyer and the seller may sue for the purchase price
unless subsequently he accepts a return of the goods. In an action
under section 144(1) of the Personal Property Law to recover the
purchase price of goods sold because of the buyer's alleged wrong-
ful neglect or refusal to pay according to the terms of the contract
of sale, it appeared on cross examination of plaintiff's witnesses
that at the time of defendant's refusal to accept, there was an avail-
able market for the goods which were still in the warehouse where
they had been placed by plaintiff upon defendant's refusal to accept,
though they had, at the time of the trial, depreciated in value. Hfild,
that a dismissal of the complaint on the ground that plaintiff's sole
remedy was an action for damages for defendant's nonaeceptance of
the goods, was error. The erroneous exclusion of evidence which
undoubtedly would have shown that plaintiff took back the goods
only for the protection of the buyer calls for the reversal of a judg-
ment dismissing the complaint and awarding costs to defendant, and
the granting of a new trial. International Cheese Co. v. Gharra,
643.
SALE OF INFANTS' BEAL ESTATE,
See Judgments.
SATISFACTIONS.
See Judgments.
SEAMAN.
See Ships and Shipping.
SE0X7BITY FOB COSTS.
See Costs.
SEPABATION.
See Hnsband and Wife.
SERVICE.
Substituted — Municipal Court of the city of Neto York — Cor-
vorations — Appeal. — The Municipal Court of the city of New
York has no power to make an order for substituted service of the
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760 INDEX.
SEBVIOE — Contmued.
summons on a corporation defendant. An appeal lies from such
an order and it and the order denying the motion to vacate the
judgment entered on defendant's failure to appear will be reversed
and the motion granted. United States Cast Iron Pipe & Foundry
Co. V. Roberts & Co., Inc., 560.
See Oorporationfi; Process; Surrogates' Oonrts.
SHERIFFS.
Duties of — Execution — When motion for an order permitting
sheriff to deposit in court before the return day the proceeds of exe-
cution sales granted — Judgments — General Rules of Practice, rule
6 — Code Civ. Pro. J 723.— It is the well-settled law of this state
that it is the duty of the sheriff, not only to collect the moneys due
upon an execution by the return day thereof, but to bring the same
into court, or pay it over to the plaintiff or his attorney by such
return day. A sheriff, having is his hands suf^cient funds, the pro-
ceeds of sales of property under an execution, to pay the plaintiff*s
judgment in full, was served with a notice by the trustee under a
trust agreement purporting to have been signed by plaintiff, under
which the trustee claimed to be entitled to the money due on the
plaintiff's judgment and execution. The trustee denied that the
trust agreement had been abandoned, as claimed by plaintiff. Held^
that a motion by the sheriff for an order permitting him to deposit
in court before the return day of the execution, the proceeds of the
execution sales and be absolved from further responsibility in rela-
tion thereto, will be granted, and the issue as to the ownership of
the moneys determin^ either in an action by the trustee to enforce
the trust agreement or by an action brought by the judgment credi-
tor, to set it aside. Had the time for the return of the execution
expired, the judgment creditor's remedy would have been either to
compel a return by the sheriff under rule 6 of the General Rules of
Practice, or to bring an action for damages against him. The mis-
take of entitling the motion papers, in the action brought against
him as sheriff by one of the judgment creditors, is a mere irregular-
ity which the court under section 723 of the Code of Civil Procedure
may correct, where the substantial rights of other parties in interest
are not affected. The claims of the judgment and attachment cred-
itors of the judgment debtor cannot be settled on this motion,
although they have been served with notice thereof, for the right of
the party claiming the money being in doubt, the court will relegate
her to her action. Buckley v« Sharpe, 206.
SHIPS AND SHIPPma.
1. Contracts for towage — Principal and agent. — The captain of
a schooner has implied power to bind his own principal by a con-
tract for the towage of the ship. Where the captain of a schooner
made a contract with plaintiff to tow the ship, the person for whose
benefit the ship is operated on the particular voyage in which the
expense for towage was incurred, not the actual owner of the ship,
is the principal of the captain and is liable upon the contract for
towage. Where payment for the services rendered was refused on
the ground that defendant was not the owner of the schooner and
that the captain was not defendant's agent but the agent of the
actual owner, a judgment dismissing the complaint will be reversed
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INDEX. 761
SHIPS AND SHIPPINa — Continued.
and judgment directed in favor of plaintiff. Potter v. American
Union Lme, Inc., 101.
2. Contracts -—Terms of — Evidence — Bates — Trial, — The only
issue litigated in an action for the non-delivery of three cases of
goods delivered by plaintiffs to defendants at the city of New York
for shipment to a foreign port, was whether defendant's liability
was limited to $100 for each case lost^ and though the evidence
showed that defendants had two rates, one of which was ad valorem,
the trial justice, in spite of a clause in the bill of lading issued at
the time the goods were delivered to defendant, which provided that
'^ unless a higher value be stated herein, the value of the goods does
not exceed $100 per package, nor $8 per cubic foot, and the freight
thereon has been adjusted upon such valuation, and no oral declara-
tion or agreement shall be evidence of a different valuation," gave
judgment in favor of plaintiff in the sum of $G88, the actual value
of the goods which had been lost. Held, that said clause was of
itself a statement that the rates were based upon a valuation of
$100 and constituted a notice that if the shipper desired to place
a higher valuation on the goods shipped, he must pay a higher rate.
The contract in terms showing the existence of an ad valorem rate,
the plaintiff, which had been in the export business for several
years, w^ould have had notice of essential choice of rates had it read
the contract or acquainted itself with its terms, and the judgment
in its favor will be reduced to $288 and, as so modified, affirmed.
Starace & Co., Inc., v. Raporel S. S. Line, Inc., 111.
3. Discharge of cargo — lease of off-shore berth — Lighters —
Evidence — Contracts — Custom and usage. — The hiring of an off-
shore berth on a North river pier means that the ship discharges its
cargo off the side into lighters or scows. One side of a North river
pier leased by defendant for an off-shore berth was occupied by one
of its steamships for five days and the stipulated per diem rate paid.
The lighters remained in the berth five days longer. In an action
to recover an additional charge at the same per diem rate a witness
for plaintiffs on his direct examination was asked : ** What is the
custom with regard to an off-shore berth, are lighters considered
part of the ship for the transaction f " to which the witness answered
** in this special case, yes.'' Held, that defendant was entitled to
show whether it had control over the lighters after its steamship
had left the pier, or whether it had any connection with the owner of
the cargo, and that the exclusion of such testimony was error for
which a judgment in favor of plaintiffs will be reversed and a new
trial ordered. Carroll v. Harris, 392.
4. Injury to seaman upon the high seas — Obligation of ship for
care and maintenance of disabled seaman — Jurisdiction. — The obli-
gation of a ship to care for a seaman if he becomes ill or is injured
while in service continues for a reasonable period after the termi-
nation of his employment. The seaman's maritime right to main-
tenance and care for a reasonable time after his employment ceased
may be enforced in the state courts. Where the seaman met with an
accident incidental to his service while the ship was on the high seas
and only a short distance from some of the large ports of South
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762 INDEX.
SHIPS AND SHIPPma— Continued.
America, a cause of action alleged in the complaint for defendant's
failure to furnish plaintiff with reasonably good medical attention
turned on the question whether plaintiff requested to be landed at
one of those ports, was decided in his favor though he was bronght
to New York. A motion for a new trial will be granted unless
plaintiff consents to the reduction of a verdict of $1,200 to $500,
in which event the motion will be denied. Falk v. Thurlow, 586.
See Injunctions.
SPEGIFIG LEGACIES.
See Wills.
SPEGIFIG PEBFOBMAKGE.
Land contracts — Princ'qyal and agent — Parol evidence — Statute
of Frauds. — While a writing, not under seal, signed for an ondis-
closed principal by an agent renders him personally liable, the undis-
closed principal may be held liable upon proof .of the signer's agency.
The fact that the question arises under the Statute of Frauds does
not change this rule, and parol evidence to show the existence of the
principal neither offends the statute nor tends to vary the terms of
the writing. Where in a buyer's action for the specific perform-
ance of a land contract, not under seal, all disputed questions of
fact were decided in favor of plaintiff, and the only contention was
whether the writing which was signed by the agent of the seller
whose name did not appear, was a sufftcient memorandum under
the Statute of Frauds, the rule relating to an undisclosed principal
applies, the writing is sufficient, and the plaintiff is entitled to judg-
ment against the undisclosed principal. Byrne v. McDonough, 529.
See Judgments; Gonrt of Glaims; Highways.
STATE GONSTITUTON.
Art III, ii 19, 28. Dale Engineering Co. v. State of New York,
233.
STATE FIKAKGE LAW.
Section 35. Heinemann v. State of New York, 265.
STATUTE OF FRAUDS.
Sale of real estate — Insufficient memorandum — Contracts —
Specific performance — When complaint dismissed, — Where by an
oral contract for the purchase of real astate it was agreed that the
balance of the purchase price, after certain cash payment, should
be paid by plaintiff assuming an existing mortgage on the property
and giving a mortgage for the difference, a writing which while
acknowledging receipt of the cash payment, did not specify the
terms of the mortgage to be given, how long it was to run or the
rate of interest, is an insufficient memorandum under the Statute of
Frauds and the complaint in an action for specific performance of
the contract will be dismissed, but without costs. Schubach ▼.
Konshner, 354.
See Pleading; Speciiic Performanoe.
STATUTE OF LIMITATIONS.
See Oonrt of Glaims; Partnership.
INDEX. 763
STATUTE OF WILLS.
See Deeds.
STATUTES.
1. Construction of — meaning of vjords '^occupied for dwelling
purposes " — Summary proceedings — Landlord and tenant — Laws
of 120, ehap, 942. — Alfiiough the legislative intent in the use of
the words ** occupied for dwelling purposes" in the statute (Laws
of 1920, chap. 942) by which a landlord's remedy by summary pro-
ceedings is suspended, etc., means an occupation by the tenant for
such purposes, and the statute should not be so construed us to
include premises which are occupied by the tenant for the purpose
of providing dwelling or shelter to others for the tenant's profit,
the legislature did not intend, however, to exclude from the opera-
tion of the statute premises occupied as a dwelling, not only by
the tenant, but also by self-supporting members of the family or
paying guests not related and perhaps strangers to the tenant, so
long as such renting of the premises is merely incidental to the
tenant's occupation. May v. Dermont, 106.
2. Repeal of Laws of 1822, chap, 127 y by resolution of board of
supervisors of Seneca county — Jury districts — County Law,
J 12(14). — The board of supervisors of Seneca county by virtue
of section 12(14) of the County Law had plenary power to adopt
the resolution of August 30, 1920, abolishing the two jury districts
into which by chapter 127 of the Laws of 1822 said county was
divided, and providing that thereafter the county should consist of
a single jury district. The repeal of the said statute of 1822 was
accomplished not by the County Law but by the resolution of the
board of supervisors on August 30, 1920, which has the same force
as a statute passed by the legislature itself. Matter of Seeley, 633.
See Constitntional Law; Costs; Court of Claims; Damages;
Ezecntors and Administrators; Oeneral Bnsiness Law;
Injunctions; Landlord and Tenant; Liauor Tax Law; Negli-
gence; Pleading; Summary Proceedings; Transfer Tax;
Wills.
STOCK COBPOBATIOKS LAW.
4 15, Publicker Commercial Alcohol Co. v. Roberts, 55L
STREET BAILWATS.
See Writ of Prohibition.
STRIKES.
See Labor Unions; Picketing.
SUBSTITUTED SERVICE.
See Service.
SUMMARY PROCEEDINaS.
1. When will not lie against tenant on the ground of expiratio)i
of term — Landlord and tenant — Lease — Code Civ. Pro. i 2231
(1-a) added by Laws of 1920, chap. 942.— Under section 2231 of
the Code of Civil Procedure, as amended by chapter 042 of the
Laws of 1920, by adding subdivision 1-a to the effect that no sum-
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SUMMABY PBOGEEBINaS — Continued.
mary proceeding '' shall be maintainable to recover the possession of
real property • • • occupied for dwelling purposes," sam-
mary proceedings on the ground of the expiration of the term will
not lie against the tenant of several floors of a private house which
have been sublet and are used exclusively for dwelling purposes,
and a final order in favor of the landlord will be reversed and final
order directed in favor of the tenant. Jackson v. Grey, 92.
2. Statutes — Landlord and tenant — Trial — Pleading — Evi-
dence — When final order reversed and new trial granted. — A sum-
mary proceeding under the statute (Laws of 1920, chap. 942) was
instituted upon a landlord's petition alleging that he was in good
faith seeking to recover possession of an apartment occupied by the
defendant tenant in petitioner's ten-family apartment house, for
the immediate and personal use of himself and family, as a dwelling.
The answer was a general denial, and the landlord on his direct
examination was asked : *^ Do you intend to occupy for yourself as
a dwelling place for yourself and family, for usual purposes, the
apartment now occupied by " the defendant tenant. An objection
by the tenant's counsel that the answer called for a conclusion was
sustained and exception taken. The court correctly charged that
the good faith of the landlord in the matter was a question for the
jury. Held, that the exclusion of the testimony sought to be elicited
by the question was error for which a final order in favor of the
tenant entered upon the verdict will be reversed and a new trial
granted. Kahrs v. Eygabroad, 395.
3. When wUl not lie against tenant as a holdover — Landlord and
tenant — Lease, — The agreement of a tenant that in case of a sale
of the premises he will vacate them on thirty days' notice, is a con-
dition and not a conditional limitation of the lease. While the
refusal of a tenant to vacate the premises on the day set by such
a notice entitles the landlord to bring an action in ejectment or for
breach of covenant, the tenant is not a holdover until his lease
expires, and summary proceedings will not lie against him as a
holdover. Weinman v. Trainer, 403.
See Lease; Pleading; Statutes.
SXTBROaATES' COURTS.
1. Jurisdiction — When real estate of surety not impressed with
an equitable lien — Executors and administrators — Trustees, —
Upon a stipulation between the temporary administratrix of an
absentee and the substituted trustee, the amount of the defalcation
or indebtedness of the absentee, as testamentary trustee, was agreed
upon and approved by the surrogate and though no order was
entered the amount so agreed upon was accepted by the adminis-
tratrix as a claim against the estate of the absentee. An order
duly granted directing the sale of two certain parcels of real estate
of the absentee provided that the right, lien or claim of priority of
claimant or equities of the substituted trustee, who objected to the
sale of one of the said parcels, be transferred to the avails from the
Rale of the said real estate and the right thereto determined when
the matter of the disposition of the proceeds of the sale of both
parcels came before the court for determination. The father of the
absentee who was one of the sureties on his official bond as testa-
INDEX 765
SUBROGATES' OOUETS -— Continued.
mentary trustee, devised the parcel, the sale of which was objected
to by the substituted trustee, to his widow for lifC; since deceased,
then to the absentee. Upon the judicial settlement of the accounts
of the administratrix, aU necessary parties being in court, held, that
the court had jurisdiction to determine the rights of the various
creditors and claimants to payment out of the proceeds of the real
estate including the parcel devised to the absentee by his father's
will. The claim of the substituted trustee to be entitled to priority
or preference of payment from the proceeds of the sale of the real
estate devised to the absentee, on the ground that he received it
impressed with an equitable lien from his father who was surety
for the faithful . performance of the absentee's official duties as
testamentary trustee and also subject to the absentee's liability as
an heir of such surety, cannot be allowed and the proceeds of sale
must be applied pro rata in satisfaction of all of the obligations of
the absentee. Matter of Sullard, 288.
2. Service by publication — Probate — When motion to vacate
service of citation by publication denied — Wills, — The presumption
in favor of the regularity of judicial process should not be lightly
disregarded, and the statement in the moving affidavit on a motion
to vacate the service of the citation to attend the probate of a will,
that *^ I did not receive the citation or summons by mail " cannot
be accepted as a reason for opening up the decree admitting the
will to probate. Matter of Rowley, 376.
See Verdict.
SUSPENSION OF POWER OF ALIENATION.
See Wills.
TAXES AND ASSESSMENTS.
See Foreclosure.
TAX DEEDS.
See Title.
TAXICABS.
See Mandamiuk
TAX LAW.
J 4(7) — Real estate of fraternal corporation, if leased, not
exempt from taxation. — Power to lease given by the by-laws of a
fraternal corporation is not equivalent to a declared purpose to lease
set forth in its incorporation papers, and where such a corporation,
having leased its real estate to other fraternal bodies at an annual
rental, fails to establish that it was created for that purpose, the
real estate is not exempt from taxation under section 4(7) of the
Tax Law. People ex rel. Buffalo Consistory v. Betz, 124.
J 2(8), People ex rel. Astoria Light, Heat & Power Co. v. Can-
tor, 419.
J 4(7), People ex rel. Buffalo Consistory v. Betz, 124.
$J 132, 134, Dodd v. Boenig, 144.
5 220, Matter of Einstein, 452.
J 220(2), Matter of MeMiillen, 505.
H 220(3), Matter of Keith, 86.
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766 INDEX.
TAX LAW— Continued.
H 220(6), 221(b), 230, 241, Matter of Canda, 16L
t 221, Matter of Beekman, 73.
t 221, Matter of Cash, 641.
t 221(b), Matter of Kolb, 361.
TAXES.
See Oertiorari; Transfer Tax.
TENDER.
See Pleading.
TE8TAMENTABY PROVISIONS.
See Wills.
TESTAMENTARY TRUSTEES.
See Acconntinc.
TITLE.
Action to quiet — Tax deed — Real property — Tax Law, H 132,
134. — In an action to quiet title brougnt by the owner in possession
of certain real property against the purchaser at a tax sale who
never was in possession^ to set aside and cancel the tax deed given
to defendant by the county treasurer, it appeared that through a
clerical error in the tax office a double assessment was levied against
the property, one running against the owner, which was paid, and
one against an unidentified person. Held, that the recording of the
tax deed without proof of service of the notice required by section
134 of the Tax Law, which the purchaser at the tax sale did not give,
was void, and that plaintiff was not barred by section 132 of the
Tax Law from asserting her right to have the tax deed oanoeled.
Dodd V. Boenig, 144.
See Contracts; Jodtments.
TORT.
See Negligence.
TRADE MARKS.
See Mandamus.
TRADING WITH THE ENEMT AOT.
$ 7, Matter of Kuntzsch, 694.
TRANSFER TAX.
1. What not subject to — Partnership agreement — Good totlZ —
Evidence — Services — When deduction from net profits for salaries
unauthorized. — Where by a partnership agreement the money
standing in the name of a partner is to be credited on the first days
of January and July in each year, the share of a partner in the
capital with interest to the date of his death, September 2, 1917,
represents the value of the transfer at his death and a claim of the
executors in a transfer tax proceeding that the interest be dis-
counted to January 1, 1918, is properly disallowed. The partner-
ship agreement provided that the capital of the member of the firm
who died during the continuance of the copartnership should remain
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INDEX. 767
TBAN8FEB TAX— Continued.
in the business for a period of not exceeding nine months subse-
quent to his death and that his personal representatives should
receive the same interest on capital and the same share of the profits
for that period as was provided by the copartnership agreement.
Held, that as the profits for the nine months succeeding decedent's
death were not due and payable under the partnership agreement
until the expiration of the period therein fixed, and carried no
interest, the amount of said profits should be discounted so as to
ascertain its value as of the date of decedent*s death. The business
of the firm was that of selling goods on commission and the unusual
earnings for the years 1916 and 1917, which the transfer tax
appraiser in estimating the value of the good will included in his
average of profits, were due solely to the extraordinary increase in
the inventory value of the merchandise, on the sale of which com-
missions were received. Held, that in the circumstances the profits
for those years should have been excluded. The profits of the year
1914 should have been eliminated because of the conditions which
resulted in profits far below normal earnings, and the average for
1912, 1913 and 1915 should have been taken as the basis for ^ti-
mating the value of the good will. The five per cent, of profits which,
under the partnershio agreement decedent was entitled to receive,
should have been applied to the good will value of the business in
ascertaining his interest therein. No proof having been offered of
the nature, extent or value of the services, if any, rendered by
decedent and his copartners to the firm, a deduction from the net
profits, for salaries to the copartners, was unauthorized and properly
disallowed by the transfer tax appraiser. Matter of Lincoln, 45.
2. What subject to — Association for benefit of a family no*
exempt — Tax Law, } 221.— The " Beekman Family Association "
which was incorporated under the Membership Corporation Law by
members of the Beekman family, including the testator, does not
come within the class of corporations entitled to an exemption
under section 221 of the Tax Law, and property passing to said
association, as residuary l^atee, is subject to a transfer tax. Mat-
ter of Beekman, 73.
3. What subject to — Nonresidents — Tax Law, J 220(3).—
Where a non-resident testator left a taxable estate in this state, the
proper basis under section 220(3) of the Tax Law for prorating the
various amounts taxable on the transfers under the will, is the total
amount of the real and personal ptoperty transferred, and where
the transfer tax appraiser did not include the real estate in his com-
putations, the matter will be remitted to him for correction. In a
transfer tax proceeding the appraised value of the entire estate
should be submitted under oath and not in the form of a letter by
the attorney for the executors, setting forth his estimate of such
value. Matter of Keith, 86.
4t. What subject to — Domicile — Wills — Statutes — Power of
appointment over personal property without state — Tax Law,
45 220(6), 221(b), 230, 241. — There is no sound reason why estates
transmitted by means of powers of appointment created by will
should not be governed by the same rules which control the devolu-
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768 INDEX.
TBAKSFEB TAX —Continued.
tion of estates by other methods. The right to take property by
devise or descent is not a natural right and the sovereign power of
the leg^lature which confers this privilege may impose conditions
thereon. The state of the domicile of a decedent fixes the sittis of his
personal property for the purposes of taxation, although such prop-
erty is actually without that state. A tranfer of trust property-
effected by the exercise by decedent, who died a resident of this
state, of powers of appointment created by the will of her father
and grandfather, who were residents of a sister state in which the
trust property is located and where her will was probated, is sub-
ject to a transfer tax under section 220(6) of the Tax Law. Where,
however, it appears that decedent by her will exercised the powers
of appointment in favor of her trustees, with life estates to her
children, and that the transfer to them is part of what they would
have received under the wills of their ancestors if the powers had
not been exercised, and said children elect to take under said wills,
their life estates are not subject to a transfer tax. The will of
decedent herein provided that in default of the exercise of new
powers of appointment g^ven thereby the remainder should vest in
the issue of her children or in default of issue in their next of kin
under the law of the state in which the trust property was located.
Her executors appealed from an order assessing the tax, which
included as taxable the transfers effected by the exercise of the
powers of appointment, on the ground that if such transfers were
taxable, the remainders should be suspended from taxation until the
determination of the question whether the donees of the new powers
shall exercise them. Held, that section 230 of the Tax Law, as
amended in 1911, and section 241 of said statute, require that the
tax upon the remainders shall be presently imposed; if the new
powers are exercised by the children of decedent, no tax will be
due from her estate, and a refund by the state may be compelled;
if, however, the appointment is not made by their wills, the state
will be protected. Appeal of the executors against a tax under
section 221(b) of the Tax Law, on securities in the trust fund in
the sister state, sustained, but their appeal on the refusal to deduct
the federal inheritance tax denied. Matter of Cauda, 161.
6. What subject to — Estates in expectancy — WiUs — Motions
and orders — Life estates — Invalid exercise of power of appoint-
ment,— The will of a decedent, who died in 1904, directed the divi-
sion of his residuary estate into two parts, the income from one to
be paid to his son for life, and on his death the share to pass to his
issue. In case no children survived the son, then the income was to
be paid to decedent's daughter during her life, and upon her death
the share to pass to her issue, and if no issue, then to whomsoever
she should appoint by her will. Alternative provision was also made
in respect to the other half, the income from which was to be paid
to the danerhter. She died without issue in 1913, leaving her residu-
ary estate to her brother who died testate in 1918. In an action by
the executors of the son for the settlement of his account as trustee
under the will of his father, it was held that the attempted exercise
by the son, in his will, of the power of appointment given to him
under his father's will, was invalid, and that there was a reversion
in the estate of the father which passed as if he died intestate.
INDEX. 769
TBANSFEB TAX — Continued.
because no provision was made for the disposition of the remainders
in case of the failure of the exercise of the power of appointment.
It was also held that the powers were contingent because they might
be defeated if either of the children of the father died leaving issue.
In the transfer tax proceedings in the estate of the father the
appraiser found the value of the life estates of the son and daughter,
but suspended taxation on the remainders because of the powers of
appointment thereover, and the order entered on the appraiser's
report contained no reference to the remainders. Held, that a con-
tention of the executors of the father's estate that the latter part of
section 220(6) of the Tax Law (Laws of 1897, chap. 284) providing
for the taxation of the non-exercise of the power in the donee's
estate, which was in effect when the father died but repealed by
chapter 732 of the Laws of 1911, which was in effect prior to the
death of the son, exempted the non-exercise of the power from taxa-
tion, could not be sustained, and since no transfer took place in the
donee's estate the legislature was without power to tax the property
in his estate, the transfer tax must be paid on the only transfer
effected, which was in the donor's estate; hence the taxation of the
estates in expectancy was held in abeyance, and they may be pres-
ently taxed against the persons in whom they vested in possession
and enjoyment on their full, undiminished value. An application
to vacate an order appointing a transfer tax appraiser on the
ground that the estate of the decedent herein was not subject to
further transfer tax, treated as a motion to fix the tax without the
appointment of an appraiser, and the order entered will provide for
vacating the order heretofore made appointing the appraiser. Mat-
ter of Duff, 309.
6. What not subject to — Statutes — Trusts — Affidavits — Tax
Law, 4 221(6) — Code Civ. Pro. 4 829. — The statute imposing a
transfer tax, being a special tax law, will be construed strictly
against the state and favorably to the taxpayer to the end that he
may not be subjected to special burdens without clear warrant of
law. Where the appraiser in fixing a transfer tax included a sav-
ings bank account standing in decedent's name in trust for his
daughter, but the proof embodied in an affidavit of the daughter is
that the moneys in said account were her own, derived from gifts
to her from various persons, and intrusted by her to decedent who
deposited them in the trust account, and that the only withdrawal
therefrom was made by him at her request and the money delivered
to and used by her, the account should not have been included in the
appraiser's report as subject to a transfer tax. A contention that
section 829 of the Code of Civil Procedure applies to the affidavit
made by the daughter is untenable, and while the fact that the affi-
davit is self serving must b€^ considered in deciding what weight
should be given to it, the court is not warranted in disregarding it
particularly as its. recitals stand uncontradicted and , unimpeached.
Only such transfers of investments as are taxable under article 10
of the Tax Law become liable to taxation under section 221(b) of
the Tax Law, which was in force at the date of decedent's death,
but before the tax thereunder is imposed the value of the transfer
should be ascertained by deducting from the value of the invest-
ments so much of the debts as are chargeable against them. In
49
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TRANSFER TAX — Contiimed.
appraising the fair market value of the transfer of sneh invest-
ments at the time of decedent's death, the accrued interest theroon
to that date must be included. Matter of Kolb, 361.
7. Transfers in contemplation of death — Insurance (life) —
Assignments — Tax Law. f 220. — Where decedent, three days be-
fore he died, and aware that he had but a short time to live, assigned
to his son-in-law certain life insurance policies, which in their
original form would have be^i taxable as part of his estate, it will
be held that the assignments were " made in contemplation of death "
within the meaning of section 220 of the Tax litw, and they are
subject to a transfer tax on the amount actually received by the
beneficiary, discounted as of the date of the assignments. Matter
of Einstem, 452.
8. Transfer of stock of foreign corporation owning real estate
within the state of New York, the stock of which is owned by a non-
resident decedent, is taxable — Constitutional law — Tax Law,
i 220(2).— The provision of section 220<2) of the Tax Law fixing
for the purposes of a transfer tax the interest of a non-resident
decedent in shares of stock in a foreign corporation owning real
estate in the state of New York, as such proportion of the value of
decedent's stock as said real estate bears to the value of the entire
property of the corporation, wherever situated, is a valid exercise of
the taxing power and is constitutional. Even if at the time of
decedent's death the oertiflcate was not in this state, the transfer of
his interest as stockholder in the real property here would be tax-
able. The language of said section 220(2) is not confined to corpo-
rations exclusively engaged in holding real estate but applies to all
foreign corporations owning real estate in the. state of New York.
Matter of McMuUen, 505.
9. When corporate trustee not exempt under section 221, of the
Tax Law, — The Title Guarantee and Trust Company is not in any
sense or for any purpose a corporation belonging to any of the
classes mentioned in section 221 of the Tax Law, and a bequest to
said company as trustee, to expend the income for an obviously
educational and charitable purpose, is subject to a transfer tax.
Matter of Cash, 641.
TRESPASS.
See Adjoining Land Owners.
TRIAL.
1. Jury — False answer of juror as to qualifications — Affidavits
— Motion to set aside verdict granted. — To permit one to sit as a
juror who gave a false answer to a material question, is a fraud
upon the court and the parties, and an order denying a motion to
set aside the verdict on the ground of misconduct of said juror will
be reversed and the motion granted. Upon motion to set aside a
verdict in favor of plaintiff, for misconduct of a juror in giving a
false answer to the question whether he knew the defendant or an}'
of its officers, put to him before he was accepted as a juror, the
principal moving, affidavits tended to establish that after the verdict
TBIAL — Continned.
said juror in the presence of several persons admitted that he did
know the defendant and was prejudiced against it, and that he had
gratified this prejudice by influencing his fellow jurors in plaintiff's
favor. All this, together with other matters stated in the moving
affidavits, was denied by the juror in his answering affidavit. Held,
that an order denying a motion to set aside the verdict will be
reversed and a motion granted in the interests of justice. Harris
v. Eclipse Light Co., 399.
2. Trial — Inherent power of court to direct preference — Code
Civ. Pro. i 793 — Judicial discretion. — Clarke v. Eighth Avenue
R. R. Co., 707.
See Vendor and Purchaser; Venne^
TRUSTEES.
See Surrogates' Oonrts.
TRUSTS.
See Transfer Tax; Willa.
UNDERTAKINGS.
See Arrest.
UNITED STATES CRIMINAL CODE.
J 37. Burgess Bros. Co., Inc., v. Stewart, 673.
UNITED STATES REVISED STATUTES.
i 3701. People ex rel. Astoria Light, Heat & Power Co. v. Can-
tor, 419.
UNITED STATES SHIPPING ACT (39 U. Si Stat, at Large, 728).
H 14; 16. Burgess Bros. Co., Inc., y. Stewart, 673.
USE AND OCCUPATION.
See Pleading.
VENDOR AND PURCHASER.
1. Contract for sale of real estate — When vendee cannot recover
down payment — Evidence — Trial — Real Property Law, J ?59. —
Under section 259 of the Real Property Law the vendee is not
required to sign a contract for the sale of realty. Where
a contract for the sale of realty was not signed by the vendee, he
may not, in an action on the contract, to which the Statute of
Frauds might be pleaded in bar, recover his down payment on the
purchase price, unless the failure to perform the contract is ascrib-
able to the vendor. The trial court, upon the sole ground that the
contract did not bind the plaintiff because he had not signed it,
refused on objection of plaintiff's counsel to receive the contract in
evidence, and for the same reason gave judgment in favor of plain-
tiff. All offers of testimony by defendant tending to show that he
had acted in good faith and was at all material times ready, willing
and able to complete the transaction, were excluded on the ground
of immateriality. Held, that the view taken by the trial court was
erroneous, and that as plaintiff had not made out a prima facie
case the testimony excluded, though not necessary at the time offered.
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772 INDEX.
VENDOB AND PUBCHASEB — Continued.
was very material, and the judgment must be reversed and a new
trial ordered Schaefer v. Steuemagei, 646.
2. When money paid (w part of purchase price of real estate can-
not he recovered — Contracts. — Where in an action to recover
money pai Ice for the sale of real
estate, it f nder of the contract as
agreed to, : it should recite " subject
to violatioi Rrhich defendant did not
agree, the ] r, and a judgment in his
favor will dismissed. Gitzelter v.
Grossman,
VENUE.
1. Chanc, Hv. Pro. % 984.— Where
after a jur rial of an action brought
in the coui a learning that the cause
of action \ in the county of Kin^
refuses to 984 of the Code of Civil
Procedure, er the cause to Kings
county will j court had power of its
own motio] )f the case in the county
of Kings.
2. Wheri change place of trial —
Landlord a lemanding that the venue
be changed lereby waive her right lo
make a motion to change the place of trial on the ground that the
conveniences of witnesses and the ends of justice would be pro-
moted. Northway Holding Co., Inc., v. Parker, 57.
VEEDICT.
When the court may direct a verdict upon a contested probate —
Surrogates' Courts — Trial — Evidence — Wills. — It is only when
a verdict rendered rtpfm a contested probate must be set aside as
unsupported by the evidence that the court may direct a verdict.
Where a will was executed under the supervision of a lawyer, the
presumption is that the formalities of the Statute of Wills were
complied with, and when the proof is ample to indicate due execu-
tion that issue may be taken from the jury and the surrogate may
direct a verdict in favor of the will on that issue. Where the con-
testants failed to give evidence of direct pressure upon the testator
or produce evidence which will support a verdict that the will was
a product of undue influence, coercion, duress, fraud or restraint of
any kind or character, the consideration of such issues will be with-
drawn from the jury and a verdict directed in favor of the will.
Where the only inference to be drawn from all the evidence, by
reasonably-minded men, is that the testator when he made his wiU
possessed the mental capacity required by law, no question of fact
is left for the jury, and as it would have been the duty of the court
to set aside a verdict against the will, as against the evidence, a
verdict in favor of the will upon that issue will be directed in favor
of the will. Matter of Tymeson, 643.
See Trial.
WAREHOUSEMEN.
See Contracts.
INDEX 773
WILLS.
1. Construction of — How validity of a testamentary disposition
of real estate in this state by a non-resident testator is controlled
— Trusts — Suspension of power of alienation — Corporations —
Power of sale — Annuities — Devise — Vesting — Gifts — Decedent
Estate Law, J J 44, 45, 47— Real Property Law, 54 42, 61, 97, 99 —
Code Civ. Pro. J 1836-a. — The validity of a testamentary disposi-
tion of real estate in this state by a non-resident testator is con-
trolled by section 47 of the Decedent Estate Law. By a trust cre-
ated by the will of a non-resident testator who left very little prop-
erty other than common and preferred stock in a corporation and
certain unproductive real estate in this state of the value of $150,000.
there was given outright to certain des^ated employees of the
corporation, divided into classes, the amonit of property which the
testator intended they should receive at nis death, with a proviso
that the right of any employee to participate in the distribution of
the principal, which was not to be made until after the lapse of ten
years even though the three life beneficiaries died long prior thereto,
was contingent upon such employees remaining in good standing
in the active employment oi the company, its successors and assigns,
until the expiration of the trust period. It was further provided that
in default of such continued employment, the benefit intended for
such employees should end and " be treated as if never conferred ''
and the testator left it entirely to the officers of the corporation to
terminate the employment of any employee and made the action of
said officers with respect thereto as final and conclusive as a volun-
tary relinquishment of employment. The trustees, being unable to
dispose of the real estate, a part of the residuary estate, because
prospective purchasers question whether those represented by the
trustees take the real estate, and whether if the heirs of testator
take the remainder, the trustees have power te sell the real estate,
bring this action under section 1836-a of the Code of Civil Pro-
cedure and sections 44 and 45 of the Decedent Estate Law against
the heirs of testator, his widow and his former wife for a construc-
tion of the will, and it is conceded that the trust is void under the
statute (Real Property Law, ^ 42, 61) providing against the sus-
pension of the power of alienation for a longer period than two
lives in being and forbidding the accumulation of rents and profits
save as authorized by law. Held, that the remainder did not vest
in the remaindermen on the death of the testator -but that their
interests were contingent, and as to the principal were intended to
vest only at the expiration of the trust period, provided that in the
meantime they remained in the active employment of the company
and in good standing, and that to delete the invalid provisions of
the will and declare that the remainder vested in the employees
immediately upon the death of the testator would be in effect to make
a new will. The case held to come within the rule that where there
is not a direct devise or bequest to remaindermen but merely a
direction to executors or trustees to pay over to or divide among
a class at a future time, the vesting does not take place until the
arrival of that time, and the gift is contingent upon survivorship
and futurity is annexed thereto. The heirs of the testator took the
real estate subject to charges thereon for the payment of an annuity
to the first wife of testator, to the payment of his debts and funeral
expenses and inheritance taxes and any other public or governmental
charges and to the payment of money legacies given by the will if
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T74 INDEX.
WILLS — - Continued.
needed therefor, and also subject to the exercise of tlie power of
sale conferred upon the executors and trustees for any authorized
purpose. While the attempt of testator to confer authority upon his
executors and trustees to sell the real estate for the purposes of the
invalid trust falls with it, yet if a sale of the real estate be neces-
'^ ' ' * " " " ovisions of the will or
rm any of their duties,
• of sale, which under
is valid as a pow^r in
quitable conversion —
Property Law, i 42. —
to sell and convey the
le might deem proper,
'* with direction to dis-
itees. Held, that the
n equitable conversion
of the Eeal Property
Id not be given effect,
rty should be sold and
ould be carried out by
of the power of alien-
ectory merely and not
er of Fitzsimmons, 71.
Kind wife — Decedent
e in this state, her last
will and testament, executed in another state while she was unmar-
ried, may be admitted to probate in this state, under section 35 of
the Decedent Estate Law, though her surviving husband was not
mentioned in the will. Matter of Cutler, 203.
4. Construction afk^s^ Intention of testator — Life estates — Gifts
— Power of sale — Sale of real estate — Executors and adminis-
trators, — Where an estate is given in one part of a will in clear and
decisive terms, it cannot be taken away or cut down by raising a
doubt as to the meaning or application of a subsequent clause, nor
by any subsequent words which are not as clear and decisive as the
words granting the estate. The intention of the testator as cleariy
shown by a certain parag^ph of his will, which was drawn by an
inexperienced layman, was. to give to his wife all his estate, real and
personal, subject to two conditions: 1. That she should provide a
suitable home for his children, maintain them and give them an edu-
cation 2. That when they respectively arrived at the age of
twenty-one years, she should pay each of them $500, except that
she should pay to or for the benefit of one son, the sum of $700.
Held, that as to give effect to a succeeding provision, that in the
event of the death of the mother before any of the children attained
their majority, testator's property should be sold and divided and
go to his four children, share and share alike, would of necessity con-
vert the estate of the wife from a fee into a conditional life estate
until at least one of the children became of age, such provision
should be construed as precatory, and so construed was consistent
with the absolute gift to the wife. A still later provision, that in
INDBX 77B
WILLS — ^Continned.
the event of the death of the wife after either of the children
arrived at the age of twenty-one years and they had received the
sums mentioned, then the estate should be sold and the proceeds
^ven to the children in equal shares with deductions of sums already
paid to them, is so indefinite and ambiguous that it cannot be given
effect to cut down the gift to the wife. A provision vesting in testa-
tor's wife full power to sell and convey any portion of the estate
with the consent and approval of one son and the daughter, the pro-
ceeds of such sale to be applied to any debt that might be a claim
against the estate, was not necessarily to be construed as indicating
any intention of testator to give his wife only a life estate. The
absolute gift to the wife was not rendeiced void because of her
failure to pay the sums as conditioned bf the gift to her, because
the children could enforce the payment of the amount due or to
which they were entitled under the provision of gifts to the wife,
against her estate. Matter of Fredenburg, 299.
5. Construction of — What does not work a forfeiture of a legacy
'^-Gift over — Accounting. — A testamentary provision that in case
any beneficiary shall directly or indirectly contest or litigate the
validity, factum or effect of the will in any action or proceeding
with a view to void or annul the will, the legacy of such contestant
shall be revoked and any devise or bequest in favor of such contest-
ing person shall be absolutely void, and the will take effect and be
administered as though such contesting person predeceased the tes-
tator, does not work a forfeiture of the legacy to a contestant, unless
there is a gift over in case of breach of the condition, and a gift of
the residue is not such a gift over. Matter of Fox, 368.
6. Construction of — Specific legacies — Corporations — Partner-
ship agreements, — An agreement between pawners, contemplating
the incorporation of their business as a publishing company, stated
that it was the desire of both to retain within their own control, so
far as possible, the entire management of the corporation about to
be formed, with power to purchase each other's stock. Held, that
this option only existed during the lifetime of the parties. One of
the partners who at his death, twenty-five years later, was the owner
of three-fourths of the capital stock of the company, bequeathed
one hundred and eighty shares thereof to his sister, cousin and three
of his associates in the business, in different allotments, with pro-
viso that if any of said legatees should not survive him the share
which such legatee would have received should go to his or her sur-
viving children in equal shares, or in default of such issue surviving
the testator, then such shares should go to the next of kin of each of
the original legatees in equal shares, per stirpes and not per capita.
The remaining shares owned by testator were bequeathed in trust
for his wife for life, and at her death to several of his business asso-
ciates, including the three previously remembered. Held, that all the
legacies were specific and the legatees were severally entitled to a
pro rata distribution of a dividend on the stock, declared within a
year of the death of the testator. During a four months' illness of a
servant who had been in testator's employ for the fourteen months
preceding his death, he paid her medical and hospital expenses and
though she was not discharged she received no salary. The hospital
expenses were in excess of her wages during her absence, and upon
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WILLS — Continued.
resuming work she continued in the service of the testator until bis
death, seven months later. Held, that under a clause of the will
reading : " I give and bequeath • * * to each of my other serv-
ants who are in my employ * * * at the time of my death and
have been so employed by me for not less than one year preceding
my death, the sum of five hundred dbllars," said servant was entitled
to the legacy. Matt* of Mitchell, 370.
7. Construction of — When trust cannot he terminated by merger
— Personal Property Law, $ 16. — Where testator, whose estate
consisted solely of persoiial property, gave one-half of it to his
executors in trust for tl^ benent of his daughter for life or until her
marriage, the trust is Madestruotible under section 15 of the Per-
sonal Property Law, ana her interest in the income cannot be trans-
ferred or merged in the remainder so as to terminate the trust
Where the sons of testator predeceased him, the claim of the daugh-
ter, his only surviving child, who is still unmarried, to be presently
entitled to the possession and enjoyment of the entire estate because
of an alleged merger of her interest as sole beneficiary and remain-
derman, will be ienied. While she is immediately entitled to one-
half of the estate a successor trustee of the other half will be
appointed. Matter of Lee, 611.
8. When may be admitted to probate — Testamentary provisions
— Decedent Estate Law, i 36. — A testamentary provision m the will
of an unmarried testator for one who was his wife at the time of
his death is a provisioii for his " wife " within the meaning of sec-
tion 35 of the Decedent Estate Law, as amended in 1919, and the will
may be admitted to probate subject to the rights of testator's son,
not mentioned In thf? will, as provided in sudi statute. Matter of
Gaffken, 693.
See AceouBting; Executors and Administrators; Guardian;
Probate; Transfer Tax; Verdict
WITNESS.
See General Business Law.
WEIT OF PROHIBITION.
City of Uti^a — Street railways — Increase of fare — Public
service commission — Franchises — When motion for alternative
writ of prohibition denied, — The New York State Railways,
a domestic corporation operating street surface railroads, among
other places, in the city of Utica, having instituted a proceeding
before the public service commission for permission to increase its
rate of fare, the city, as a basis of demand for an alternative writ
of prohibition commanding said corporation and the public service
commission to desist from further proceedings in the matter, set up
as a bar to the jurisdiction of the public service commission, sixteen
franchises granted by the city between May 6, 1886, and January
18, 1907, to said corporation, or its predecessors in interest, all of
which franchises were without limitation except that the railway
corporation would obey the Railroad Law, including any changes in
the rate of fare made by the legislature or its delegated agent, the
public service commission. Held, that the motion for the alternative
writ of prohibition must be denied. Matter of O'Connor v. Public
Service Commission, 337.
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