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(182 N.Y.S.) of the company the holders of the bonds are entitled to share, after certain payments have been made, in the surplus capital of the corporation, and finally the bond will be satisfied, not only upon payment of its face value, but upon payment of a ratable proportion of the assets, whether more or less than the amount called for on its face."

The appraiser erred in reporting these securities as taxable under the provisions of section 221b of the Tax Law. An order may be entered on notice, modifying the order assessing tax, so as to eliminate the provision for the tax imposed by section 221b of the Tax Law.

In re VANCE'S GUARDIANSHIP.
(Surrogate's Court, Bronx County. December, 1919.)

(Syllabus by the Court.) Guardian and ward em 13(4)—Grandmother and aunt of infant appointed

guardians on conditions.

On a contest between an infant's maternal grandmother and its paternal uncle over the appointment of a guardian it appeared that the father, before his death, requested the aunt, for whose appointment the grandmother prayed, to take care of the infant, if anything happened to him, and it was held, that the best interests of the infant demanded that it remain in the custody and care of the grandmother, that the expressed wishes of the father should be followed as far as possible, that this can best be done by appointing both the grandmother and the aunt, and that the uncle should have the privilege of visiting the child at least once each week.

Application by Mary Batist for the appointment of her daughter, a maternal aunt of petitioner's infant granddaughter, Eleanor Vance, as a general guardian of the latter's personal property, consolidated with a petition by Robert J. Vance, a paternal uncle of the infant, for his appointment as guardian. Grandmother and aunt appointed guardians, on conditions.

Greenthal & Greenthal, of New York City, for petitioner Batist. Peter P. McElligott, of New York City, for petitioner Vance.

SCHULZ, S. The maternal grandmother of Eleanor Vance, an infant, about 2 years and 2 months of age, applied for the appointment of her daughter, a maternal aunt of the infant, as general guardian of the latter's person and property. On the day following the filing of the petition in that proceeding, a paternal uncle of the infant applied for his appointment, submitting with his application the consents of two other paternal uncles of the infant. Thereupon a citation was issued in the uncle's proceeding, directed to the petitioner in the grandmother's proceeding and also to the maternal aunt, and thereafter the two proceedings were consolidated and a hearing had thereon.

From the testimony it appears that the infant is entitled to property of the value of between $1,000 and $1,500; that the child was

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

born on October 21, 1916, and at a time when the petitioning grandmother was living with the parents of the infant, she having resided with them from the time of their marriage; that the mother of the infant died in November, 1916, and that thereafter the father of the infant, the infant, and the petitioning grandmother continued to live together, the grandmother nursing and taking care of the infant up to the time of the death of the father on October 2, 1918. Thereafter the petitioning grandmother resided and now resides in the household of her other daughter, for whose appointment as guardian she now prays.

The grandmother, therefore, has had the care of this child from the day of its birth up to this time, with the exception of a short period in the month of July, 1918, when the father left the home occupied by himself and his mother-in-law, taking the child with him. He returned within a few days, however, and remained with the grandmother up to the time of his death. The aunt, for whose appointment the grandmother prays, is married and has four children, the youngest being a boy of the age of 14 years. Her husband earns between $35 and $40 a week, and she occupies a five-room apartment. She testifies that she had a conversation with the father of the infant while he was at the hospital, and that he told her that he wanted her to take care of her mother and the baby, if anything happened to him, and that she said she would. Her husband states that he is willing to bring up the child and to defray the child's expenses.

The petitioning brother of the decedent does not appear to have been in very close touch with this child at any time during its life. He is also a man of family, having two children, respectively 2 and 4 years of age, and his income is about $20 per week. It is conceded that the persons whose appointment is prayed for in both petitions are people of good character.

It is unnecessary to discuss again the authorities, of which there are a great many, having to do with the guardianship of children. I have had occasion to consider them at some length in several matters that have come before me in this court. Matter of Cross, 92 Misc. Rep. 89, 155 N. Y. Supp. 1020, affirmed without opinion 174 App. Div. 872, 159 N. Y. Supp. 1108; Matter of Munn, 101 Misc. Rep. 171, 167 N. Y. Supp. 443. I am satisfied that the best interests of this child demand that it remain in the custody and care of the grandmother, who seems to have taken such good care of it up to this time. I believe, also, that the wishes of the father, as testified to by the aunt, should be followed as far as possible, and I think that this can best be done by appointing both the grandmother and the aunt, for whose appointment she petitions, and this course will be followed. The uncle, however, shall have the privilege of visiting the child at least once each week, if he so desires, so that the infant may also have the opportunity of associating with him and receiving the benefit of his counsel and advice.

Settle decree accordingly.

(182 N.Y.S.)

ESPOSITO V. AMERICAN RAILWAY EXPRESS CO. (Supreme Court, Appellate Term, First Department. May 25, 1920.) Master and servant On 305—Negligent operation of automobile truck by

chauffeur's helper, forbidden to drive, not imputable to employer.

Where plaintiff, a pedestrian, was struck by defendant's automobile truck, and it appeared that while defendant's chauffeur was delivering a package, his helper started the truck before the chauffeur could stop it, and that the helper had been forbidden by the rules of the employer to drive an instruction that negligence, because of the chauffeur's permission to helper to drive, was attributable to the employer, was erroneous, in view of the rule forbidding the helper to drive.

Appeal from City Court of New York, Trial Term.

Action by Carmine Esposito against the American Railway Express Company. From a judgment for plaintiff on the verdict of a jury, defendant appeals. Reversed, and complaint dismissed.

Argued May term, 1920, before BIJUR, MULLAN, and WAGNER, JJ.

Edward V. Conwell, of New York City, for appellant.

Leon Sanders, of New York City (Jacob Zelenko, of New York City, of counsel), for respondent.

BIJUR, J. Plaintiff was engaged in pushing a handcart north on First avenue just below 112th street, when he was injured by defendant's automobile truck, operating under the following circumstances:

The truck, in charge of defendant's chauffeur, Gilroy, had stopped at the south side of 112th street, facing east. Gilroy there delivered a package, and while he was so engaged McAdams, his helper, got into the chauffeur's seat, which was on the left side (it was a left drive car), and started the truck. When Gilroy returned from his errand, the truck had already proceeded quite a way, and he ran after it. He caught up with it just as it was turning the corner at First avenue and 112th street to go south. Gilroy jumped on the running board on the right side and "hollered” to McAdams to stop the car. It appears that McAdams' foot slipped off the clutch as he put on the foot brake, while Gilroy pulled the emergency brake, which was on the right side of the driver's seat; i. e., in the middle of the double front seat. Nevertheless the truck proceeded some short distance and injured plaintiff.

It was proved beyond question that the rules of the company, expressed in a circular, communicated to and known by both Gilroy and McAdams, forbade McAdams to drive the truck without the written permission of Mr. Park, the "supervisor" of the company, and that no such permission had been given. On this record the learned judge below charged the jury that

"If Mr. Gilroy, the chauffeur in charge of the car, notwithstanding the lack of such permission from Mr. Park (the supervisor], permitted Mr. Mcadams to drive that car, then any negligence causing the accident by reason of Mr. Gilroy's permission to drive the car will be attributable to the company, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

182 N.Y.S.—7

and, if that car was negligently operated, it was so operated because Mr. Gilroy permitted the person operating it to do so, and in that event, if you find that to be the fact, such negligence will be chargeable to the de fendant."

To this defendant's counsel duly excepted. This charge incorrectly stated the law as laid down, notably in Rose v. Balfe, 223 N. Y. 481, 487, 488, 119 N. E. 842, Ann. Cas. 1918D, 238. See, also, to the same general effect, Goldberg v. Borden's Condensed Milk Co., 227 N. Y. 465, 125 N. E. 807; and Rolfe v. Hewitt, 227 N. Y. 486, 125 N. E. 804.

Passing the consideration that there is no evidence from which it can be inferred that Gilroy "permitted" McAdams to drive the car at all, and laying aside the point that, even in the absence of the specific rules and instructions of the company above adverted to, Gilroy, in the light of these recent decisions, had no right to delegate his employment, or to bind the defendant by the employment of some other person to do the very work for which he was hired, we have in this case the express forbiddance, known to and controlling upon both Gilroy and McAdams. So far as the latter is concerned, he was no more in the employ of the defendant at the time when he operated this truck and brought about the accident than if he had been a mere stranger in the street, utterly unknown to the defendant; and Gilroy was, both by the natural limitations of his position and particularly by the instructions and rules of the company, without power to employ McAdams as a chauffeur on behalf of the defendant, either permanantly or temporarily,

Respondent refers to a number of cases, including Althorf v. Wolfe, 22 N. Y. 555; but in that case the court said significantly, at page 361 :

“The defendant had given him (namely, the master's actual employé] general instructions to throw the snow from the roof of his house, enjoining no caution, and suggesting no mode of doing it, to prevent injury, nor placing the servant under any restriction against procuring aid in the work.”

Judgment reversed, and complaint dismissed, with costs of this appeal, and with costs in the court below. All concur.

(192 App. Div. 896)

PHONOGRAPH CORPORATION OF MANHATTAN v. SMITH. (Supreme Court, Appellate Division, First Department. May 14, 1920.) Appeal from Trial Term, New York County.

Action by the Phonograph Corporation of Manhattan against Alphonzo Smith. From a judgment for plaintiff on a directed verdict, and from order denying a motion to set aside such verdict and for a new trial, defendant appeals. Affirmed.

Argued before CLARKE, P. J., and DOWLING, SMITH, PAGE, and MERRELL, JJ.

(182 N.Y.S.) Smith & Reiher, of Brooklyn (Dominic B. Griffin, of New York City, of counsel, and Frank V. Smith, of Brooklyn, on the brief), for appellant.

Gregory, Stewart & Wrenn, of New York City (Allen S. Wrenn, of New York City, of counsel), for respondent.

PER CURIAM. Judgment and order affirmed, with costs.

SMITH, J. (dissenting). The defendant was a local dealer in phonograph stock, and was engaged in selling phonographs under a license given to the plaintiff for the sale of Edison phonographs. They had had some business relations, and upon October 1, 1917, there was due from the defendant to the plaintiff the sum of $7,685.65. Upon the 18th of October the plaintiff made a proposition to the defendant by which they should make a new contract and in that proposition stated:

"In order to secure a 2 per cent. discount, and to get the old balance off of the open account, so that only your current purchases will appear on the regular statement, we have suggested that you give us a six months note, on which you are to make payments each month, if possible, and at maturity this note is to be subject to renewal for the unpaid balance. If you would prefer, however, to give us a series of notes, this will be acceptable to us; but it will be necessary that one of these plans be used in getting your present indebtedness off of the open account."

A paper was then submitted by the plaintiff to the defendant, in the form of a letter to be written by the defendant to the plaintiff, and upon October 20, 1917, that letter was written, containing in substance the matter contained in the proposed letter submitted. In reference to this balance due, the letter said:

"In order to earn the discount referred to, and to get the old balance, amounting to $7,686.65 October 1st, off the open account, so that only our current purchases will appear on the regular monthly statement rendered to us, we herewith submit a six months note for the full amount of our indebtedness; this note bearing interest at 6 per cent. It is understood that we will pay on this note each month all that we can, and in the event that we cannot take up the note at its maturity it will be subject to renewal from time to time until fully settled."

In response to that, on October 24th this plaintiff wrote to the defendant:

"We have your letter of October 20th with reference to the proposed method of handling your future purchases, and would state that this arrangement will be satisfactory to us. We will therefore consider this plan in operation from October 5th, and we will render to you two statements on the 1st of November; one for your record and merchandise purchases since October 1st; the other for any phonographs delivered to you since October 5th."

In pursuance of this correspondence the defendant did execute a note upon October 22d for $7,685.65, the exact amount found due. That note became due upon April 22, 1918, at which time, in pursuance of their written agreement, part of the same having been paid, there was executed another note for $7,000, and the first note was canceled. Upon this second note, of $7,000, $200 had been paid prior to October 22, 1918, and, this note not having been paid in full on October 22, 1918, the plaintiff refused to renew the same, and has brought this

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