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Full text of "The miscellaneous reports : cases decided in the inferior courts of record of the state of New York"

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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. 

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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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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 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- 



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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 



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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. ^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 



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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- 



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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 



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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 



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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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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 



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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 



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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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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- 



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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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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. 



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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. 



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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 



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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- 



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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 



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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. 



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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, 



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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 



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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 



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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 



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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, 



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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^ 



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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 



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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, 



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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 



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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 



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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. 



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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- 



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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 



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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- 



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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 



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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 



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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 



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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 



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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 



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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 



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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: 



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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. 



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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 



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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 



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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. 



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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 



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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 



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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 



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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- 



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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 



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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- 



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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 



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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, 



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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- 



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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. 



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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 



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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 



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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- 



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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 



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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- 



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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. 



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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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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 



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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. 



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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 



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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 



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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 



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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 



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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 



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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. 



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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 



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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 



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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* 



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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- 



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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, 



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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 



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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 



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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 



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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. 



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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, 



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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 



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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 



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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 



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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 



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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 a l 
mandatory injuncti on req uiring the defendant to ship 
Friar Bock to Kentuck y as provided in the agreement 
and enjoining other disposition of him ; jtlso for a 
r oceiveFof the stallion with jnwpr tn propfted to Cali - 
fornia and to ta ke 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 



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People ex rel. A. L., H. & P. Co. v. Cantor. 419 
Misc.] Supreme Court, February, 1921. 

Jha-COBrt s^of sister states may be relied npon- Jx) aid 
jIL-fifir ying the ends of jn'stic pi whfinftvftr nnr own 

jroce ssj alls short of effe ctiveness. \ 

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. 



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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 



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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 



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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 



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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. 



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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. 



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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- 



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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. 



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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- 



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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 



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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 



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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 



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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 



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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 



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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 



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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; 



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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 



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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 



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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 



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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. 



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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, 



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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. 



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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. 



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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. 



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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 



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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 



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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 



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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 ** 



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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. 



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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 



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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. 



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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 



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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 



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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 



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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 



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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- 



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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 



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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. 



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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. 



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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. 



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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- 



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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 



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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 



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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 s