1038. See 220 N. Y. 774, 116 N. E. CARRIER v. CARRIER et al. (Court of Appeals of New York. June 6, 1919.) PER CURIAM. Motion to amend remittitur denied, without costs. Motion for reargument denied, without costs. See 226 N. Y. 114, 123 N. E. 135. a verdict, as to the defendant Acker, Merrall disbursements. PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion. spondent. CARVILL, Appellant, v. MIRROR FILMS, INCORPORATED, Respondent. (Court of Appeals of New York. May 20, 1919.) Appeal, by permission, from a judgment entered August 30, 1917, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (178 App. Div. 644, 165 N. Y. Supp. 676), which reversed a determination of the Appellate Term reversing a judgment of the Municipal Court of the city of New York in favor of defendant and directed reinstatement of said Municipal Court judgment. Defendant employed plaintiff for one year commencing January first. He worked for three weeks and was discharged. Thereafter he assigned that part of his damages accruing up to March 6th, reserving to himself the balance. The assignee sued and recovered the part of the damages assigned. Plaintiff brought this action to recover damages for the remainder of the term. The Appellate Division held that the first action having been brought in the Municipal Court which had no equitable jurisdiction, the present action was barred by the judgment therein. Paul N. Turner, of New York City, for appellant. PER CURIAM. costs. Judgment affirmed, with CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN, CRANE, and ANDREWS, JJ., concur. SAME, Appellant, v. MILLERS' NAT. INS. CO. OF CHICAGO, ILL., Respondent. (Court of Appeals of New York. April 8, 1919.) Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (177 App. Div. 948, 164 N. Y. Supp. 1088), entered March 21, 1917, affirming a judgment in favor of plaintiff for a part only of the relief demanded in the complaint entered upon a decision of the court at a Trial Term without a jury. Each action was to recover upon a blanket policy of fire insurance covering six parcels of property. A fire occurred by which four of the parcels were damaged. Plaintiff also held another policy of insurance partially covering four of the parcels. CHRISTGAN, Respondent, v. STANDARD The question at issue was as FIRE INS. CO. OF NEW JERSEY, Appelto the apportionment of the loss and as to May the amount for which each company was lia-lant. (Court of Appeals of New York. ble. Frank Gibbons, of Buffalo, for appel-20, 1919.) Appeal from a judgment of the lant. Vernon Cole, of Buffalo, for respond- the Fourth Judicial Department (178 App. Div. Appellate Division of the Supreme Court in 948, 165 N. Y. Supp. 1080), entered May 9, 1917, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon a policy of fire insurance. The defense was that the property was fraudulently overvalued and failure to comply with the provisions of the policy requiring proofs of loss to be served within 60 days. Plaintiff contended that defendant had waived timely service of proofs of loss. Vernon Cole, of Buffalo, for appellant. Elijah W. Holt and Charles B. Moulthrop, both of Buffalo, for respondent. ents. PER CURIAM. Judgment in each case affirmed, with costs. HISCOCK, C. J., and COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur. CAFFERTY, Respondent, v. SOUTHERN TIER PUB. CO., Appellant. (Court of Appeals of New York. April 15, 1919.) PER CURIAM. Motion to amend remittitur. See 226 N. Y. 87, 123 N. E. 76. Motion granted and remittitur amended, so as to read as follows: "Judgments reversed, and judgment ordered overruling defendant's demurrer, with costs." In re CALLAHAN'S ESTATE. (Court of (123 N.E.) PER CURIAM. Judgment affirmed, with costs. order of the Appellate Division of the Supreme | Charles A. Collin, John L. Wells, and Thomas Court in the Third Judicial Department (184 L. Hughes, all of New York City, and Charles App. Div. 629, 172 N. Y. Supp. 426), entered L. Woody and George D. Yeomans, both of November 18, 1918, affirming an award of the Brooklyn, for respondent. state industrial commission made under the Workmen's Compensation Law (Consol. Laws, c. 67). The only question in dispute was whether gifts made by the employer to the employé during the year prior to his accidental death should be considered as wages on which compensation to his dependents should be computed. H. Duane Bruce, of Syracuse, for appellant. Charles D. Newton, Atty. Gen. (E. C. Aiken, of Albany, of counsel), for respondent. PER CURIAM. Order affirmed, with costs. HISCOCK, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN, and CRANE, JJ. concur. CITY OF NEW YORK, Appellant, V. BROOKLYN, Q. C. & S. R. CO., Respondent. (Court of Appeals of New York. April 8, 1919.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (179 App. Div. 198, 164 N. Y. Supp. 972), entered May 18, 1917, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. This action was brought by the city to recover some $800,000, representing percentages of about $350,000 gross receipts from the operation of the defendant's railroads within the city of New York during the six years ending September 30, 1907, and penalties thereon amounting to about $450,000, pursuant to the provisions of section 175 of the Railroad Law (Consol. Laws, c. 49) as enacted May 18, 1892. The first sentence of that section has read since May 18, 1892, as follows: "Every corporation building or operating a railroad or branch or extension thereof, under the provisions of this article, or of chapter 252 of the Laws of 1884, within any city of the state having a population of 1,200,000 or more, shall, for and during the first five years after the commencement of the operation of any portion of its railroad annually, on November 1st, pay into the treasury of the city in which its road is located, to the credit of the sinking fund thereof, three per cent. of its gross receipts for and during the year ending September 30th next preceding; and after the expiration of such five years, make a like annual payment into the treasury of the city to the credit of the same fund, of five per cent. of its gross receipts." Plaintiff claimed that assuming that respondent was not subject to this charge when it was incorporated in 1893 or for the period of 17 years thereafter, during which the population of Brooklyn was less than 1,200,000, it became subject to the charge automatically when the population reached that figure, and, similarly, even if this contention be unsound, respondent became liable to this charge when it extended its operations and entered the borough of Manhattan, for then it was operating a railroad in a city whose population exceeded 1,200,000. William P. Burr, Corp. Counsel of New York City (Terence Farley and William E. C. Mayer, both of New York City, of counsel), for appellant, HISCOCK, C. J., and CHASE, CUDDEBACK, HOGAN, MCLAUGHLIN, and CRANE, JJ., concur. COLLIN, J., not voting. CITY OF NEW YORK, Respondent, v. JAMAICA WATER SUPPLY CO., Appellant. (Court of Appeals of New York. March 18, 1919.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (181 App. Div. 49, 167 N. Y. Supp. 763), entered December 7, 1917, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel defendant to install at its own expense an extension of its distribution system in Phraner avenue, borough of Queens, and granted said motion. The commission of water supply, gas, and electricity of the city of New York had theretofore made and served a written order directing the defendant to make such installation forthwith, but the direction had been ignored. The Appellate Division held that it was the duty of the defendant to supply the inhabitants of the designated locality with water and that it was within the power of the commissioner to make the order referred to, and therefore that a peremptory writ of mandamus should issue. George H. Francoeur, of New York City, for appellant. William P. Burr, Corp. Counsel, of New York City (Terence Farley and William E. C. Mayer, both of New York City, of counsel), for respondent. PER CURIAM. Order affirmed, with costs. HISCOCK, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN, and CRANE, JJ., concur. CLARK, Respondent, v. FLEISCHMANN et al., Appellants. (Court of Appeals of New York. March 18, 1919.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (185 App. Div. 944, 172 N. Y. Supp. 884), entered October 9, 1918, which affirmed an order of Special Term denying a motion by defendants for judgment on the pleadings. The action was based on a contract between husband and wife. It is claimed that this contract was void and against public policy because made for the purpose of stimulating or procuring a divorce and contrary to the spirit of section 21 of the Domestic Relations Law (Consol. Laws, c. 14) which provides that a husband and wife cannot contract to alter or dissolve a marriage. The following questions were certified: "(1) Is the agreement set forth in paragraphs II and IV of the first and second alleged causes of action of the amended complaint and attached to said amended complaint as Exhibit A, valid or enforceable? (2) Does the first alleged cause of action set forth in the amended complaint herein state facts sufficient to constitute a cause of action? (3) Does the second alleged cause of action set forth in the amended complaint herein state facts sufficient to constitute a cause of action?" Gustav Lange, Jr., of New York City, for appellants. Arthur E. Sutherland, of Rochester, and Frank S. Coburn, of Auburn, for respondent. PER CURIAM. Order affirmed, with costs; first question certified not answered; second and third questions answered in the affirmative. HISCOCK, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN, and CRANE, JJ., concur. CLARK, Respondent, v. LESTER, Appellant. (Court of Appeals of New York. March 18, 1919.) Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (185 App. Div. 944, 172 N. Y. Supp. 884), entered October 9, 1918, which affirmed an order of Special Term denying a motion by defendants for judgment on the pleadings. The action was based on a contract between husband and wife. It is claimed that this contract was void and against public policy because made for the purpose of stimulating or procuring a divorce and contrary to the spirit | of section 21 of the Domestic Relations Law (Consol. Laws, c, 14) which provides that a husband and wife cannot contract to alter or dissolve a marriage. The following questions were certified: "(1) Is the agreement set forth in paragraph I of the amended complaint valid or enforceable? (2) Does the amended complaint herein state facts sufficient to constitute a cause of action?" Gustav Lange, Jr., of New York City, for appellants. Arthur E. Sutherland, of Rochester, and Frank S. Coburn, of Auburn, for respondent. PER CURIAM. Order affirmed, with costs; first question certified not answered; second question certified answered in the affirmative. HISCOCK, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN, and CRANE, JJ., concur. In re COGAN'S WILL. (Court of Appeals of New York. June 3, 1919.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (184 App. Div. 198, 171 N. Y. Supp. 643), entered July 11, 1918, which reversed a decree of the Bronx County Surrogate's Court admitting to probate a paper propounded as the last will and testament of John H. Cogan, deceased. The alleged will consisted of three sheets of paper, two in the handwriting of the testator, dated November 1, 1915, and signed by him, but without witnesses, and the third as follows: "4/9/17. To Whom It may Concern: This is to certify that Mr. John H. Cogan, in sound mind, identified his cousin Mary Cullen as the one to whom he bequeathed his estate as specified in his last will dated Nov. 1st, 1915. Witnesses: Philip R. Zinn, M. D. Helen Hannigan." The Appellate Division held that the alleged will was not properly executed, and denied probate. Leo J. Hickey and Peter A. McCabe, both of Brooklyn, for appellant. Robert A. B. Dayton, of New York City, for respondents. PER CURIAM. Order affirmed, with costs. HISCOCK, C. J., and COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur. COLVIN, Appellant, v. POST MORTGAGE & LAND CO., Respondent. (Court of Appeals of New York. March 21, 1919.) PER CURIAM. Motion to amend remittitur denied, with $10 costs and necessary printing disbursements. See 225 N. Y. 510, 122 N. E. 454. In re COOK'S WILL. (Court of Appeals of New York. March 11, 1919.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (185 App. Div. 914, 171 N. Y. Supp. 1025), entered September 23, 1918, which modified, and affirmed as modified, a decree of the Saratoga County Surrogate's Court refusing probate to a paper purporting to be the last will and testament of Amelia J. Cook, deceased, on the ground that at the time of the execution thereof the deceased was not of sound mind and did not understand the contents of said paper, and that proponent had not sustained the burden of proving that she was free from undue influence or restraint at the time of its execution. A. F. Walsh, of Saratoga Springs, for appellant. Benjamin P. Wheat, Edgar T. Brackett, and William E. Bennett, all of Saratoga Springs, for respondents. PER CURIAM. Order affirmed, with costs payable out of the estate. HISCOCK, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN, and CRANE, JJ., concur. ent. CRAVER, Appellant, v. CRAVER, Respond(Court of Appeals of New York. April 22. 1919.) Motion to dismiss an appeal from an order of the Appellate Division of the Su(186 App. Div. 847, 175 N. Y. Supp. 26), enter preme Court in the Third Judicial Department ed March 25, 1919, which reversed an order of Special Term granting a motion for alimony pendente lite and denied said motion. The motion was made upon the grounds that the order appealed from was not a final order and that permission to appeal had not been obtained. Chester G. Wager, of Troy, for the motion. Borden H. Mills, of Albany, opposed. PER CURIAM. Motion granted, and appeal dismissed, without costs. CRONIN, Appellant, v. O'LEARY, Respondent. (Court of Appeals of New York. April 15, 1919.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (178 App. Div. 909, 164 N. Y. Supp. 1089), entered April 10, 1917, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term. This action was brought to determine the conflicting claims of plaintiff and defendant to moneys paid into court by the supreme council of the Catholic Mutual Benefit Association upon the death of John O'Connor, who held a beneficiary certificate in the association for $2,000. The trial court held that by virtue of a contract between John O'Connor, the member, and the defendant, Katherine O'Leary, his beneficiary, made in August, 1911, a vested right passed to the defendant in said beneficiary certificate to the extent of $1,000, and that the CROSBY, Appellant, v. BOARD OF EDUCATION OF CITY OF NEW YORK, Respondent. (Court of Appeals of New York. June 6, 1919.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (187 App. Div. 205, 175 N. Y. Supp. 373), entered April 5, 1919, which reversed an order of Special Term granting a motion for an alternative writ of mandamus to compel the defendant to reinstate the relator in the position of janitor engineer of Evander Childs High School in the city of New York. John E. O'Brien and Ernest H. Wells, both of New York City, for appellant. William P. Burr, Corp. Counsel, of New York City (Terence Farley and William E. C. Mayer, both of New York City, of counsel), for respondent. PER CURIAM. Order affirmed, with costs. HISCOCK, C. J., and COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur. Supp. animal I unto my beTER fifty thousand colare eta. ly." (1) Under the will of to these The following gamina light of the facts discloses by this appeal, is Clara Price C of testator, entitled to have ta fit computed and paid to her from the trust fund created by the w... the death of the testator? (21 such computation and paymente from a from such death? (3) If not, shone ry va putation and payment be from the tue of execution of the contract for the f ވ Corporate stock of the F. M. Curtis Corsies yo (4) If not, should such computation and 3. ment be from the time of the actual invertage in bonds and mortgages, pursuant to the cr tion of the will, and include only income cars, upon such investments when actually so made? The surrogate held that the widow was entitet only to income arising from mortgage loans wet aside or specifically made for her benefit. Arthur W. Kettle, of Jamestown, for appellant. Louis L. Thrasher, of Jamestown, for respond ents. PER CURIAM. Order affirmed, with costs. CARDOZO, POUND, MCLAUGHLIN, and ANHISCOCK, C. J., and CHASE, HOGAN, DREWS, JJ., concur. CROZIER, Appellant, v. RICHARDSON et al., Respondents. (Court of Appeals of New York. April 8, 1919.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (178 App. Div. 927, 165 N. Y. Supp. 1082), entered May 18, 1917, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. This is a taxpayer's action under section 51 of the General Municipal Law (Consol. Laws, c. 24), to recover for the town of Islip, in Suffolk CONDENSED MILK CO., Respondent. (Court DANISHEFSKY, Appellant, v. BORDEN'S county, the amount of two audited bills present- of Appeals of New York. April 8, 1919.) Aped by the defendants Downs and Carey for necessary expenses and disbursements in the dis- peal from a judgment entered November 2, 1916, charge of their duties as assessors of the town Supreme Court in the First Judicial Departupon an order of the Appellate Division of the of Islip, in preparing the assessment rolls of said town for the years 1911 and 1912. The reversing a judgment in favor of plaintiff enterment (175 App. Div. 883, 160 N. Y. Supp. 1128), Appellate Division held that "in an action to ed upon a verdict and directing a dismissal of enforce restitution and recovery, at the suit of the complaint in an action to recover for pera taxpayer for collusive audit or payment, col-sonal injuries alleged to have been sustained by lusion is the gravamen of the action. Collusion not being proved it is unnecessary in this action to decide the legality of the claims." Selah B. Strong, of Brooklyn, for appellant. Rowland Miles, of Northport, and Ralph C. Greene, of New York City, for respondents. PER CURIAM. Judgment affirmed, with costs. HISCOCK, C. J., and CHASE, HOGAN, CARDOZO, POUND, MCLAUGHLIN, and ANDREWS, JJ., concur. plaintiff through the negligence of defendant. Plaintiff, a child 51⁄2 years old, was playing on the sidewalk near one of defendant's wagons ed the horse and plaintiff was caught by the which was alongside the curb. The driver startstep and dragged down between the wheel and the curb, causing the injuries complained of. The Appellate Division held that upon the evidence no negligence was shown on the part of the defendant's driver. John Brooks Leavitt and Harry M. Peyser, both of New York City, for appellant. George O. Redington and Walter | tion. Philip S. Dean, of New York City, for Engels, of New York City, for respondent. appellants. Louis O. Van Doren and Herrick PER CURIAM. Judgment affirmed, with McClenthen, both of New York City, for respondent. costs. HISCOCK, C. J., and CHASE, HOGAN, CARDOZO, and ANDREWS, JJ., concur. POUND, J., not voting. MCLAUGHLIN, J., not sitting. DELANO, Respondent, v. COLUMBIA MACHINE WORKS & MALLEABLE IRON CO., Appellant. (Court of Appeals of New York. May 20, 1919.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (179 App. Div. 153, 166 N. Y. Supp. 103), entered July 16, 1917, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the alleged wrongful discharge of plaintiff from employment by defendant prior to the expiration of the contract of employment. The answer by way of defense alleged that the contract of employment was for one year "provided your services are satisfactory to us," that the services of the plaintiff were unsatisfactory, and that consequently the employment was properly terminated. The Appellate Division held that on the evidence a question of fact was presented as to whether the dissatisfaction was genuine or feigned. J. Sheldon Frost, of Albany, and Wal lace R. Foster, of New York City, for appellant. David Vorhaus and Louis J. Vorhaus, both of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs, on opinion of Shearn, J., below. HISCOCK, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, and CRANE, JJ., concur. MCLAUGHLIN, J., not sitting. DEMAREST, Respondent, v. RICE et al., Appellants. (Court of Appeals of New York. June 6, 1919.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (177 App. Div. 883, 163 N. Y. Supp. 1113), entered February 13, 1917, affirming a judgment in favor of plaintiff entered upon a verdict. The action was in ejectment. Plaintiff claimed to be the owner of the premises in question, as sole heir at law of his deceased father. The plaintiff was born December 26, 1890. His father died on August 22, 1894, leaving a last will and testament, dated August 29, 1889, by which his entire estate was given to his widow, Lillie Demarest. This will was subsequently admitted to probate. The widow remarried on April 19, 1897. The basis of the plaintiff's claim was that, as the will contained no provision in his favor, it was void as to him and that the decedent's entire estate descended to him by force of the statute, subject alone to the widow's right of dower and her rights in whatever personalty the decedent had left. The defendants Rice acquired the premises in question under a deed containing full covenants and a warranty of title, made by the plaintiff's mother in October, 1910. The plaintiff, who became of age on December 26, 1911, executed on that day a quitclaim deed of the premises to the defendants Rice, the purchasers from plaintiff's mother. Plaintiff introduced evidence tending to show that the deed was procured from him by deceit and without considera DE WAAL, Appellant, v. JAMISON et al., Respondents. (Court of Appeals of New York. April 29, 1919.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (176 App. Div. 756, affirming a judgment in favor of defendants en163 N. Y. Supp. 1045), entered March 30, 1917, tered upon a dismissal of the complaint by the court at a Trial Term in an action on consold and delivered on August third 10,000 bags tract. The complaint alleged that the plaintiff of raw sugar to the defendants at 29/32 cents per pound, cost and freight, the market price of the day and that in consideration of this sale and delivery the defendants promised to replace out of sugars to arrive by a steamer to be desig10,000 bags to the plaintiff at the same price nated by the defendants. The complaint further alleged a designation of sugars by the defendants on August 11th; and a repudiation of the conprice was 52 cents per pound, cost and freight. tract on August 17th, on which day the market The difference between the two prices for 10,000 bags is $105,000, for which the plaintiff sued. In the court below it was held to be a contract for the sale of sugars and to be without a sufficient memorandum to satisfy the statute of frauds. Joseph M. Proskauer and Wilbur L. Ball, both of New York City, for appellant. William N. Dykman, of Brooklyn, for respondents. |