(b) execute and deposit with the clerk of the county of Kings the conveyance of the premises directed in the interlocutory judgment (section 1330, Code Civ. Proc.). They, however, are not required to give security against waste. Midwood Park Co. v. Baker, 142 App. Div. 495, 127 N. Y. Supp. 48.

As so modified, the order is affirmed, with $10 costs and disbursements to plaintiff.

(192 App. Div. 915)

SMITH v. F. B. STEARNS COMPANY et al.

(Supreme Court, Appellate Division, Second Department. May 7, 1920.) Arrest 40-Failure of proof of fraud defeats action.

Under Code Civ. Proc. § 549, subd. 4, where the complaint alleged that defendants were guilty of fraud in the representation which constituted the warranty, and therefore in contracting the liability which was the basis of the action, failure of proof as to the fraud was loss of the action.

Action by Edith Smith against the F. B. Stearns Company and another. Judgment for defendant, and order denying new trial, and plaintiff appeals. Affirmed.

Argued before JENKS, P. J., and MILLS, RICH, BLACKMAR, and JAYCOX, JJ.

PER CURIAM. Judgments and order unanimously affirmed, with costs. The complaint alleged that defendants were guilty of fraud in the representation which constituted the warranty, and therefore in contracting the liability which was the basis of the action. In this respect the case differs from Novotny v. Kosloff, 214 N. Y. 12, 108 N. E. 189, and falls within subdivision 4 of section 549, Code of Civil Procedure, and the consequence of failure to prove the fraud was loss of the action.

The complaint was properly dismissed.

(192 App. Div. 591)

NEW AMSTERDAM CASUALTY CO. v. GROSS et ux. (Supreme Court, Appellate Division, First Department. July 2, 1920.) Fraudulent conveyances 208-Husband's judgment creditor held not entitled to reach wife's land, conveyed before obligation was incurred. Where husband conveyed his interest in land three years before judgment was confessed against him, and where by mesne conveyance it had become fully vested in wife several months before the obligation upon which the confession was based was incurred, and where there was no evidence, in judgment creditor's action to enforce the judgment against the land, that husband had any creditors when he made the conveyance, or that conveyance was made to hinder, delay, or defraud any one, judgment creditor was not entitled to have land sold as that of husband to satisfy the judgment.

Appeal from Trial Term, New York County.

Action by the New Amsterdam Casualty Company against Max Gross and Ray Gross, his wife. From a judgment for plaintiff, enter

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

(183 N.Y.S.)

ed upon a decision of the court, defendant Ray Gross appeals. Judgment and findings reversed, and complaint dismissed.

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

Henry Greenberg, of New York City, for appellant.

Julian V. Carabba, of New York City (John M. O'Neill, of Brooklyn, on the brief), for respondent.

PAGE, J. This is a judgment creditor's action to have the defendant Max Gross adjudged to be the real and true owner of premises No. 67 Stanton street, and that the defendant Ray Gross be adjudged to hold said premises for and in trust for him, and that the same be sold to satisfy the lien of the judgment. The plaintiff, at the request of the defendant Max Gross, executed a bail bond for one Joseph Elias on a criminal charge made against him in the state of Connecticut in the sum of $2,500. The defendant Max Gross executed a written agreement to indemnify and save harmless the plaintiff from liability on said bond. He at the same time gave a statement under oath, in which he set forth, among other things, that he was the owner of the premises 67 Stanton street. The bail bond was forfeited, and the plaintiff entered judgment against Max Gross upon confession, and this action. was brought. The bail bond was issued and the agreement of indemnity executed on the 11th day of September, 1918. The plaintiff proved that the premises 67 Stanton street were deeded by Louis Isaacs to Ray Gross February 20, 1906; that on December 12, 1911, Ray Gross deeded the one-half interest in the premises to Max Gross, said deed containing the following provision:

"It being understood as an express condition subsequent that, in the event that the party of the second part should sell or attempt to sell, lease or attempt to lease, mortgage or attempt to mortgage, devise or attempt to devise, or in any other way rid himself of or diminish his interest, or attempt to, without the consent and permission of the party of the first part, then this grant shall be void, and the interest granted to the party of the second part shall again be vested in the party of the first part."

Thereafter Max Gross executed an undertaking on appeal as security, and judgment was recovered against him for $512 in the month. of June, 1915. This judgment was paid by Solomon Solovinsky, the father of the defendant Ray Gross, and on August 11, 1915, Ray Gross executed a deed to Solomon Solovinsky, and on August 27, 1915, Max and Ray Gross executed a conveyance to Solomon Solovinsky. On June 24, 1918, Solomon Solovinsky and wife deeded the premises to Ray Gross. It appeared from the evidence that Solovinsky loaned his daughter $4,000 at the time the property was purchased, and that she executed thereafter an assignment of the rents to Solovinsky, and that from time to time Solovinsky advanced money to his daughter to pay off a second mortgage of $6,000 upon the premises and for other purposes. Solovinsky testified that he conveyed the premises to his daughter in June, 1918, because she had repaid him the amount that had been advanced.

It did not appear from the evidence that Max Gross was indebted, or had any judgments against him, at the time he conveyed the property to Solomon Solovinsky. Therefore, when Max Gross gave the written agreement of indemnity to the plaintiff in September, 1918, he did not have any title to or interest in the property in Stanton street. He had conveyed whatever interest he once had to Solomon Solovinsky more than three years prior to the plaintiff's giving the bail bond. It was not proved that, at the time he made the conveyance, he had any creditors, or that such conveyance was made to hinder, delay, or defraud any one. Max Gross made a false statement to the plaintiff, in reliance upon which the plaintiff gave the bond. Because of that fact alone, the court was not authorized to appropriate the property of Ray Gross to the payment of the judgment against Max Gross.

Upon the trial the defendants' attorney claimed, and has argued upon the appeal, that the recovery of the judgment against Max Gross upon a confession of judgment violated the condition of the deed by his wife to him in 1911, and that thereby his interest in the property reverted to Ray Gross. It is not necessary to consider this contention, as three years before the confession of judgment Max Gross conveyed his interest in the property, and by mesne conveyance it had become fully vested in Ray Gross several months before the obligation, upon which the confession was based, was incurred. Judgment and findings should be reversed, with costs to appellant, and the complaint dismissed, with costs to defendant. Settle order on notice. All concur.

COHEN V. CHAMPAGNE.

(Supreme Court, Appellate Term, First Department. June 28, 1920.) Sales 391(9)-Buyer entitled to return of deposit as security for actual damage, in absence of showing of such damages.

Where seller's receipt to buyer did not justify finding that deposit made by buyer was given as a penalty or as liquidated damages in case buyer failed to carry out the agreement, or as part payment to the purchase price, buyer, on her failure to carry out agreement, was entitled to return of the deposit, in absence of showing seller that he had sustained actual damage; the deposit in such case being security for actual damages. Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Fannie Cohen against Jacob R. Champagne. Judgment for defendant, and plaintiff appeals. Reversed, and judgment directed for plaintiff.

Argued June term, 1920, before BIJUR, DELEHANTY, and WAGNER, JJ.

I. Irving Apfel, of New York City, for appellant.

Charles J. McGinnis, of Far Rockaway, for respondent.

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

(183 N.Y.S.)

WAGNER, J. The action was brought to recover the sum of $500, being a deposit made by plaintiff upon an agreement to purchase a store of defendant. The answer was a general denial and a counterclaim for $600 balance of the purchase price. The plaintiff produced a written receipt, signed by defendant, acknowledging receipt of the money, showed that the sale never took place, and refusal to return the money. The defendant testified that he had been ready to transfer the property, but that plaintiff refused to complete the purchase. No proof of damage was offered by him by reason of plaintiff's refusal to take the property.

The trial court seems to have found that the failure to complete the sale was due to plaintiff's default, and I think the evidence justifies such a finding. Assuming, however, that the whole fault for the failure to consummate the purchase was that of plaintiff, that would not justify the judgment in favor of the defendant. There is nothing in the receipt to justify a finding that the deposit was given as a penalty or as liquidated damages in case plaintiff failed to carry out her agreement, or as part payment of the purchase price. It constituted, therefore, a deposit as security for actual damage, if any, suffered by the defendant by reason of plaintiff's default. No such damage was pleaded or shown. The plaintiff is therefore, upon the facts shown in the present record, entitled to a return of the deposit. less the admitted sum of $8.82 she had previously received, as the record shows. Weinberg v. Greenberger, 47 Misc. Rep. 117, 93 N. Y. Supp. 530; Weber v. Williams & Morford Co., 144 N. Y. Supp. 619; Broadway Renting Co. v. Wolpin, 59 Misc. Rep. 199, 110 N. Y. Supp. 151; Kaplan v. Rosov, 164 N. Y. Supp. 49.

Judgment reversed, with $30 costs, and judgment directed for plaintiff in the sum of $491.18, with appropriate costs in the court below. All concur.

(111 Misc. Rep. 430)

PRDICH v. NEW YORK CENT. R. CO.

(Supreme Court, Trial Term, New York County. April, 1920.)

1. Death 8-Law of place of death applicable in action for negligence. In action to recover for the benefit of the next of kin damages for death caused by negligence in another state, the action is based on the rights given by the statute of the place of the death.

2 Master and servant cable.

368-Compensation Act of sister state held appli

Where, in an action for an employé's death, caused by negligence, it appears that the death occurred and all the services were rendered in another state, where the contract of employment was made and to be performed, the exclusive remedy of the next of kin is under the Workmen's Compensation Act of that state, so that no action can be maintained by his administrator in this state.

Action by John Prdich against the New York Central Railroad Company for wrongful death. Verdict for plaintiff set aside, and complaint dismissed.

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

Israel H. Zinovoy, of New York City, for plaintiff.
A. S. Lyman, of New York City, for defendant.

PENDLETON, J. The action is by an administrator to recover damages for death caused by negligence of an employé of defendant railroad company. Motions to dismiss at the end of plaintiff's case and on all the evidence, and after verdict to set the verdict aside, were made, and decision reserved.

[1] The death occurred and all the services were rendered in New Jersey. Defendant contends that under either the New York Workman's Compensation Law (Consol. Laws, c. 67) or the New Jersey Workman's Compensation Law (Comp. St. Supp. 1911-1915, p. 1638) the remedy is exclusive, and that therefore plaintiff cannot maintain this action. Where all the service is rendered in another state, and no service is contemplated here, the New York Workman's Compensation Act does not apply. Gardener v. Horseheads Construction Co., 171 App. Div. 66, 156 N. Y. Supp. 899, approved Matter of Smith v. Heine Boiler Co., 224 N. Y. 9, 119 N. E. 878, Ann. Cas. 1918D, 316. In cases such as this, to recover for the benefit of the next of kin damages for death caused by negligence in another state, the action is based on the right given by the statutes of the place of the death, in this case New Jersey. Loucks v. Standard Oil Co., 224 N. Y. 99, 120 N. E. 198.

[2] The New Jersey statute, like the New York statute in that respect, gives a right of action for the benefit of the next of kin where the employé, if injured only, would have been entitled to maintain an action for damages. The New Jersey Workmen's Compensation Act is applicable and exclusive, where the parties have by agreement, express or implied, accepted its terms, and expressly provides that every contract of hiring shall be presumed to have been made with reference to its terms, unless there be an express statement in writing as part of the contract or by written notice to the contrary. The contract of employment was made and performed in New Jersey, and there being no written disclaimer under the law of New Jersey, the contract was within the Workmen's Compensation Act of that state, and the remedy thereunder is exclusive. The deceased would have had, therefore, no cause of action at law in New Jersey for damages. if injured only, and the next of kin have their remedy under the New Jersey Workmen's Compensation Act, which is exclusive. On both grounds this action cannot be maintained. Gregutis v. Waclark Wire Works, 86 N. J. Law, 610, 92 Atl. 354.

Verdict set aside and complaint dismissed.
Judgment accordingly.