App. Div.]

Fourth Department, December, 1920.

sented by the return and that upon the undisputed facts stated in the petition and moving papers the relator is entitled to have his claim audited and allowed, and the claim is remitted to the common council with directions to audit and allow the same. All concur.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. CORNELIUS P. DOWNEY, Respondent, v. JOHN H. GIBBONS, Mayor of the City of Lackawanna, and Others, Appellants.- Judgment and order reversed, with costs, upon the ground that mandamus is not the proper remedy. All concur.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. RAY R. GILSON, Relator, V. JOHN H. GIBBONS, Mayor, and Others, Defendants.- Writ of certiorari dismissed and determination of the board of police affirmed, with ten dollars costs and disbursements to the defendants. Held, we think that the evidence in this record is insufficient to warrant the removal of the relator because of misconduct growing out of the strikes, but that there is sufficient evidence upon some of the other charges to make a question of fact for the board and we feel that we are bound by their decision upon those questions, and, therefore, the writ should be dismissed. All concur, except Lambert, J., who dissents.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DAVID GERNSTEIN, Appellant.— Judgment of conviction affirmed. All concur, except Lambert and Clark, JJ., who dissent upon the grounds: First, that it was reversible error for the court to admit evidence of the declarations of one Cassidy for the purpose of establishing that the defendant entered into a conspiracy to commit the crime set forth in the indictment. It was not alleged as one of the acts or means by which the crime was committed. Second, that it was error for the court to refuse to charge that the defendant could not be convicted of the crime of burglary, third degree, for breaking out of the Fitzmaurice building, under a charge in the indictment that the crime of burglary was committed by means of breaking in. Third, that it was error for the court to refuse to charge that the defendant could not be convicted of the crime of burglary, third degree, for entering the building by means of threat or artifice, under the indictment which charged breaking into the building as the only means and act constituting the crime of burglary in the third degree.

LAWYERS' CO-OPERATIVE PUBLISHING COMPANY, Respondent, v. ISADORE N. GORDON, Appellant.- Motion to dismiss appeal granted, unless appellant shall file and serve printed papers on appeal and printed briefs on or before the 3d day of January, 1921, and be ready to argue the appeal during the second week of the January term.

Fourth Department, December, 1920. [Vol. 194, App. Div.]

NATHAN KURTZ, Respondent, v. AMERICAN MILLS COMPANY, Appellant.

PER. CURIAM: The complaint fails to show that the payment by the trust company to the defendant, or the re-imbursement by plaintiff to the trust company was made through mistake or fraud, so as to entitle the plaintiff to recover the same from defendant. Nor does it appear from the allegations in the complaint that the plaintiff was under any legal obligation to repay the money to the trust company, which it had paid out to the defendant upon the alleged fictitious and unfounded claim. There is no allegation that the trust company paid over the moneys relying upon the representations made by the plaintiff to it, or that it did not know they were false. Neither is there any allegation in the complaint that the plaintiff, in turn, relying on such representations and without knowing they were false, paid over to the trust company the sum of money which it seeks to recover. These facts should not be left to mere inference, as the respondent's counsel contends, but should have been distinctly alleged if plaintiff desires to found his claim thereon. The order should be reversed, with ten dollars costs, and the demurrer sustained, with ten dollars costs, with leave to the plaintiff to serve an amended complaint upon the usual terms. All concur. Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to the plaintiff to amend his complaint within twenty days upon the payment of the costs of the motion and of this appeal.

INDEX.

ABORTION.

See CRIMES, 5.

ACCOUNT STATED.

See BILLS AND NOTES, 5.

ACCOUNTS AND ACCOUNTING.

See EQUITY, 4; EXECUTORS AND Administrators, 2; PartNERSHIP,
1; TRUSTS, 1.

ADMIRALTY.

See WORKMEN'S COMPENSATION LAW, 1.
ADMISSIONS AND DECLARATIONS.

See EVIDENCE, 6; Husband and Wife, 7.

AFFIDAVITS.

See INJUNCTION, 1.

AGENCY.

See PRINCIPAL AND AGENT.

ALIENATION OF AFFECTIONS.
See HUSBAND AND WIFE, 3, 4.

ALIMONY.

See HUSBAND AND WIFE, 18,

ANIMALS.

In action to recover for injuries inflicted by dog evidence held insuffi-
cient to show vicious character of dog or knowledge thereof by defendant
rule stated as to proof necessary to establish liability of owner of dog
for injuries inflicted on person. Prince v. Fried, 282.

JUDGMENTS AND ORDERS APPEALABLE.

1. Order denying change of place of trial in criminal action not appeal-
able. People v. Brindell, 776.

PERSONS ENTITLED TO REVIEW.

2. Acceptance of costs imposed as condition of granting leave to
serve further affidavit waived any right of appeal from order of County
Court. Cattman v. Stone, 976.

RAISING QUESTION BELOW.

3. Technical objection that setoff was not pleaded as counterclaim
cannot be raised for first time on appeal. McNeill v. Shellito, 355.

TAKING APPEAL.

4. Defendant who is not interested enough in action to appear
cannot object if judgment in his favor is reviewed without notice to
him. McLear v. Balmat, 827.

DISMISSAL.

5. Appeal will be dismissed where notice of appeal is directed to
attorney for defendant who has no authority to accept service thereof
or appear for defendant because defendant is legally dead where
defendant is legally dead and action has abated case is properly
stricken from calendar. Wright v. Town of Wilmurt, 977.

APPEAL Continued.

HEARING AND DETERMINATION.

6. When judgment on verdict on second trial based on same evidence
presented at first trial not to be set aside - rule stated as to when second
verdict should be allowed to stand. Gutman v. Weisbarth, 351.

7. Under section 1317 of Code of Civil Procedure, Appellate Division
in affirming judgment, may make its own findings. Fraser v. Kent, 742.
JUDGMENT.

8. Entry of judgment on decision of Appellate Division - where
Appellate Division reverses order of Special Term and grants plaintiff's
motion for judgment on pleadings consisting of complaint and answer
containing counterclaim but does not state that reversal was" without
prejudice," plaintiff is entitled to have his judgment entered upon
Appellate Division's decision in precise conformity therewith, and
Special Term is without power to amend judgment by directing dis-
missal of counterclaim "without prejudice." Investment Registry of
America, Inc., v. Moore, 954.

COURT OF APPEALS, MATTERS RELATING TO.

9. Certifying questions where Appellate Division has examined
facts and found no error therein and reversal is had on exceptions taken
at trial, such reversal is reviewable by Court of Appeals only by stipu-
lation for judgment absolute, and, therefore, it is improper to certify
questions. Carroll v. City of Yonkers, 974.

10. Leave to appeal to Court of Appeals from judgment of Appellate
Division unanimously affirming judgment of Supreme Court entered
on verdict of jury in action to recover damages arising from break in
water main denied, since evidence of neglect of employees of city to
promptly cut off water after break in main was amply sufficient to
sustain verdict of jury, irrespective of any question of negligence that
might be chargeable to city because of original break. Luckhardt v.
City of New York, 953.

-

11. Record on appeal - original order of Appellate Division is not
part of record where same has been resettled. Matter of Werlich, 607.

ARBITRATION.
IN GENERAL.

1. Submission of controversy to arbitration committee of New York
Produce Exchange - failure of arbitrators to be sworn not evidence of
fraud - failure of arbitrators to take oath must be raised before judg-
ment oath of office taken by members of arbitration committee
sufficient compliance with section 2369 of Code of Civil Procedure
judgment vacated because of fraudulent representations by party to
arbitration agreement that it was not member of New York Produce
Exchange. Krauter v. Pacific Trading Corporation of America, Inc., 672.
VALIDITY OF AGREEMENT.

2. Arbitration agreement held to be void as contravening public policy
in that it was too broad and that it purported to oust courts of any
jurisdiction to enforce contract rights of either party or grant redress
to either party thereunder, and having been executed prior to enactment
of Arbitration Law was unaffected thereby award made under void
agreement where defendant took no part in securing same is not enfor-
cible. Hudson Trading Co. v. Durand, 248.

ARGUMENTS OF COUNSEL.

See TRIAL, 1.

ARREST (CIVIL).

Where defendant was arrested in civil action and released on bail
and after judgment for plaintiff and execution against property returned
unsatisfied and another execution against the person of the defendant
is issued and returned as "not found," the original process of arrest is
exhausted and defendant cannot thereafter be taken into custody
thereunder. People ex rel. Wolfe v. Johnson, 451.

ASSOCIATIONS (UNINCORPORATED).

See DEEDS, 3; INSURANCE, 1; MORTGAGES, 1.

ATTORNEY AND CLIENT.

See, also, CRIMES, 4.

Summary proceedings cannot be maintained by next of kin of decedent
to compel attorney, employed by administrator to prosecute action to
recover for death, to pay over to her portion of recovery where relation
of attorney and client does not exist between them. Matter of Fellinni,

449.

BAGGAGE.

See CARRIERS,

BANKRUPTCY.

3.

-

1. Stockholder is liable in action by trustee of bankrupt corporation
for amount of unpaid stock subscriptions — liability where stock issued
in part for cash and part for services to be thereafter rendered stock-
holder cannot escape liability by transfer of stock back to corporation,
but is entitled to credit for amount received on resale of stock transferred
back, less amount paid by corporation as damages for false representa-
tions by said stockholder on sale of stock transfer of stock issued as
full-paid to innocent purchaser before demand made for balance due
thereon is no defense in action by trustee in bankruptcy to recover
unpaid balance. Palmer v. Scheftel, 682.

2. Action by trustee in bankruptcy to collect unpaid stock subscrip-
tions. Mills v. Mc Namee, 932.

BIGAMY.

See CRIMES, 3.

BILL OF PARTICULARS.

See BILLS AND NOTES, 4; CARRIER OF PASSENGERS, 1; MOTOR
VEHICLES, 1; PLEADINGS, 8-10.

BILLS AND NOTES.

RIGHTS OF HOLDER.

1. Holder in due course where note given upon condition that it
was not to be used till payee had performed his part of contract, transfer
of note before performance of condition amounts to breach of faith and
fraud within meaning of section 94 of Negotiable Instruments Law,
and places burden of proof on transferee to establish good faith as holder
in due course as provided by section 98 of said statute -evidence
failing to establish that plaintiff was holder in good faith and for value.
Security Bank & Trust Co. v. Dery, 572.
PLEADINGS.

2. An answer in an action to recover balance due on promissory note
in which it is alleged that note was given under duress and to induce
plaintiff to refrain from criminally prosecuting defendant's brother-in-
law for embezzlement but which in no way alleges innocence of defend-
ant's relative, and counterclaims for moneys paid by defendant on the
note, does not state facts sufficient to sustain counterclaim. Union
Exchange National Bank of New York v. Joseph, 295.
3. Bill of particulars will not be ordered as to consideration of promis-
sory note where answer does not raise that issue. Watson v. Universal
Transportation Co., Inc., 136.

4. Evidence establishes that an account was stated between parties
which was pleaded by defendant as setoff- technical objection that
setoff not pleaded as counterclaim cannot be raised on appeal.
v. Shellito, 355.

McNeill

5. In action against drawee to recover amount of certified check title
was held to be in plaintiff, though check was delivered to him without
indorsement and he was entitled to benefit of provisions of Negotiable
Instruments Law as to certification drawee of check may certify
conditionally-certification of check by drawee presented through
New York Clearing House, which was required by its rules before check
could be returned for indorsement, was conditional certification and
drawee was not liable because thereof. Lipten v. Columbia Trust
Co., 384.