BONDS-Continued.

held it for four years until his death and his trustees for twelve
years thereafter, the legal inference may be drawn that the trustees
sold the bond at auction only for the purpose of winding up the
estate. The fact that during these many years not one dollar was
ever demanded of defendant in repayment of an issue of bonds in
excess of $1,000,000, is convincing evidence of the practical con-
struction of the agreement by the parties themselves, and any doubt
as to the meaning of the contract will be resolved in favor of defend-
ant which refused to accede to a demand for the payment of the
bond, with interest, and the complaint will be dismissed on the
merits. Schachne v. Corporation of Chamber of Commerce, 197.
See Trustees.

BROKERS.

Lease

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When commissions cannot be recovered
City of New
York -Laws of 1916, chap. 497.- A block in the city of New York
containing an abandoned church building having been restricted
to residential use by a resolution of the board of estimate and
apportionment pursuant to chapter 497 of the laws of 1916, a
broker who procured a lessee who was ready, able and willing to
hire said building for use as a garage cannot recover commissions
from the owner who refused to make such a lease on the ground
that so to do would be an illegal act. Markowitz v. Arrow Con-
struction Co., Inc., 532.

CARRIERS.

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1. Duties of Notice to shippers Tardy delivery · Negligence
Actions Damages Pleading Demurrer to complaint when
sustained. Where a common carrier has knowledge of traffic
conditions reasonably likely to delay delivery it is bound to at least
notify the shipper of possible delay before accepting goods for
carriage. Where in a shipper's action against a common carrier
for damages for an alleged tardy delivery of goods the defendant
which without comment accepted the goods for transportation,
pleads as a separate defense that any delay was not due to its
negligence but solely to congestion of freight and traffic and that
although it had all necessary facilities on hand for ordinary traffic
it was physically impossible to care for the enormous and unusual
volume of freight tendered to it at all the times mentioned in the
complaint, but there is no allegation of notice to the shipper of
possible delay in delivery, a demurrer to said defense on the ground
that it is insufficient in law will be sustained. Burns Grain Co. v.
Erie R. R. Co., 28.

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2. Notification to Bills of lading Dismissal of complaint
Interstate Commerce Commission Personal Property Law, § 219.
-A common carrier's obligation under a straight bill of lading is
completed upon delivery of the goods to the consignee therein
named and it need not require the surrender of the bill of lading
itself. In such case the carrier having delivered the goods to the
consignee without the bill of lading which bore upon its face the
words "Draft against B/L" is in nowise concerned as to whether
the goods have been paid for, and a judgment in favor of the

consignor upon a claim that because of the notice delivery should
not have been made without the production of the bill of lading
will be reversed and the complaint dismissed. Dusal Chemical Co. v.
Southern Pacific Co., 222.

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3. Bills of lading Damages Contracts Judgments
Appeal. Where plaintiff, aware of an impending strike of the
employees of all the railroads of the United States immediately
after Labor Day, September 4, 1917, delivered a car-load of potatoes
to defendant on the afternoon of September first for shipment
under a bill of lading which provided that the carrier was not
bound to transport the property otherwise "than with reasonable
dispatch," and it appears that though in normal times and under
normal conditions the car should have reached its destination in
about twenty hours, yet because of a congestion of freight due to
the threatened strike and the over-taxing of the classification yard
said car, with others, shipped from the same point reached its
destination on September third and was placed for delivery at six-
fifteen A. M. on that same morning, a judgment in favor of plaintiff
for damages alleged to have been caused by failure to deliver the
potatoes in contract time will be reversed and the complaint dis-
miɛsed upon the merits. Carr v. Long Island R. R. Co., 672.
See Personal Property Law; Express Companies.

CERTIORARI.

See Liquor Tax Law.

CHAMBERS OF COMMERCE.
See Bonds.

CHILDREN.

See Trusts.

CITIZENS.

See Naturalization.

CITY OF BUFFALO.

See Public Service Commissions Law.

CITY OF NEW YORK.

See Brokers; Mandamus.

CITY OF ROCHESTER.

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Statutes Annexation of certain territory Public Service
Commission. It cannot be assumed that by the special statute
(Laws of 1915, chap. 359), by virtue of which certain terri-
tory was annexed to the city of Rochester, the legislature intended
to repeal the general law which reserves to it and to the public
service commission the right to regulate fares. Matter of Quinby
v. Public Service Commission, 357.

See Prohibition.

CITY COURT OF NEW YORK.

See Contempt; Motions and Orders.

CODE OF CIVIL PROCEDURE.

§§ 655, 677. Houk v. Van Horn, 263.

§ 771. Lester v. Lester, 630.

§ 872. Behl v. Greenbaum, 623.

§§ 1214, 1215, 1216. Charlton v. Ward, 238.

§ 1391.

Morris Plan Co. v. Miller, 470.

§ 3297. Palmatier v. Catskill Mountain R. Co., 571.

§ 3307 (7), Palmatier v. Catskill Mountain R. Co., 571.

CODICIL.

See Wills.

COMMISSIONS.

See Brokers.

CONDEMNATION PROCEEDINGS.

1. An award is "personal property" not "land" When state
may not claim award on ground of escheat.-An award made to the
owner of property condemned is in effect a judgment for money
which is personalty, and he has an equitable lien on the land
condemned as security for the payment of the award. In an action
brought by such an owner against the railroad company which
instituted the condemnation proceedings, and its receivers, the judg-
ment therein entered declared such equitable lien and directed the
same to be enforced by a sale of the property to satisfy it. Held,
that assuming that the plaintiff in said action died intestate as to
the real property condemned there was no escheat to the state, as
the award made was to be deemed personal property and not land.
New York Central & Hudson River R. R. Co. v. Cottle, 30.

2. Lands acquired by commissioners of Palisades Interstate Park
by purchase cannot be thereafter acquired by Rights of peti-
tioner Dismissal of proceeding.-Lands acquired by the com-
missioners of the Palisades Interstate Park by purchase or other-
wise cannot thereafter be acquired in a condemnation proceeding
instituted by a water power and service company. With respect
to such of the lands described in the petition and sought to be
acquired by said company as were not acquired by said commis-
sioners the petitioner has a prior right over them by virtue of the
present proceeding commenced ten months prior to that of said
commissioners. Where it clearly appears that the bulk or greater
part of the land and sources of water supply upon which the
water power and service company relies for the execution of its
plans were purchased by the commissioners of the Palisades Park
before the commencement of the present proceeding and such right
of purchase has been confirmed by a decision of the Appellate
Division, the present proceeding will be dismissed. Ramapo
Mountains Water Power & Service Co., Inc. v. Seidler, 272.
See Referees.

CONSIDERATION.

See Negotiable Instruments; Promise.

CONSTITUTIONAL LAW.

See Election Law; Jurisdiction; Liquor Tax Law.

737

CONTEMPT.

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Supplementary proceedings
Who adjudged guilty of
Jurisdiction
Evidence Default City Court of New York
Fines Costs Judiciary Laws, § 770.-An order of the City
Court of New York, adjudging a judgment debtor guilty of con-
tempt for wilful violation and disobedience of an order of one of
the justices of said court by refusing to sign or swear to his testi-
mony in supplementary proceedings, further adjudicated that said
failure to so sign and swear was calculated to and did impair,
hinder, impede and delay the rights and remedies of the judgment
creditors instituting the proceeding. The order imposed a fine of
$371.78 for the judgment debtor's contempt, to be paid in monthly
installments of $50, together with $30 costs, and directed that
upon his default in payment he be arrested by the sheriff and com-
mitted to the county jail. Upon such default a further order was
procured similar in form to the prior one, which directed that a
warrant issue for its execution, which warrant addressed to the
sheriff of the county was issued on the same day and the judgment
debtor committed to jail. On reversal of an order granting a
motion to vacate the commitment order, held, that while the order
adjudging the judgment debtor in contempt was erroneous in im-
posing an excessive fine neither said order nor the commitment order
That the judgment debtor was
ther after granted was void.
adjudged guilty of contempt not because of the nonpayment of
the fine but because he refused to sign and swear to his testi-
mony; and that the copy of the contempt order that was served
on him was not certified in no way affected the jurisdiction of
the court to issue the commitment. That while neither the indefi-
niteness or uncertainty of the contempt order nor the fact that
costs were awarded as part of the fine invalidated said order or
the commitment issued thereunder to the sheriff a motion could
have been properly made to modify the order so as to conform to
section 770 of the Judiciary Law. Matter of Gumpel v. Gurvitch,
536.

CONTRACTS.

ance

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1. What constitutes a part of - Building-Specific perform-
- Evidence Provisions of building code - Public Health
Verdict. The provisions of the building
Law - City of Albany·
code and Public Health Law of the city of Albany, N. Y., are a part
of every contract for the construction of a building within the city,
and neither party to such a contract can waive any of such pro-
visions and a contractor assuming to build in accordance therewith
must in that regard specifically perform. The contractor cannot
be said to have executed the work in accordance with such pro-
visions of law because some official charged with the responsi-
bility sees fit to give a certificate to the effect that the contract
met the requirements of the statute, for the reason that whether
there was a failure or compliance with the law governing such
matters depends upon the fact, not upon somebody's certificate.
Brainard v. Ten Eyck, 20.

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Evidence - Trial
2. Action brought by foreign corporation
Pleading. Upon the trial of an action brought by a foreign corpo-
ration for goods sold and delivered and in which the answer was

66

a general denial the sale and the agreed price were not disputed but
evidence was received tending to show that defendant by the terms
of the contract had a right to return the goods without cause at
the end of the fifth of March." Defendant on February twelfth sent
a letter to plaintiff offering to return the goods because not satis-
factory, which letter plaintiff claims never to have received, and
produced other testimony which tended to raise a reasonable doubt
as to the probability that such a letter was sent. Held, that in the
circumstances the trial judge was justified in deciding the issue of
facts in plaintiff's favor. In the absence of allegation in the com-
plaint that the contract in suit was made in this state and that
plaintiff was doing business herein an issue as to such matters must
be raised by answer. American Can Co. v. Grassi Contracting Co.,

Inc., 230.

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3. Right to enforce - Breach of Alien enemies. Actions -
Courts When motion to dismiss complaint denied.—Subjects of an
enemy nation, resident in this country, are entitled to invoke the
process of our courts so long as they are guilty of no act incon-
sistent with the temporary allegiance they owe to this government.
Although the proclamation of the president, April 6, 1917, is an
administrative measure it has the force of a statute, and a subject
of the Kingdom of Prussia by reason of treaty obligations has an
absolute right to pursue her occupation as an opera singer and to
claim the same consideration as that accorded to American citizens.
Her right to contract as a singer carries with it the right to enforce
her contract and a motion to dismiss the complaint in an action
brought by her to recover for a breach of contract to sing will be
denied. Arndt-Ober v. Metropolitan Opera Co., 320.

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4. Contracts In writing. What not a violation of - Serv-
ices — Injunctions.- Where, by a contract in writing under which
defendant was to work as a window cleaner for plaintiffs, he agreed
that for one year after he left their employment he would not go
into the window cleaning business directly or indirectly for him-
self in a certain locality, and the only promise made by plaintiffs was
to pay defendant a stipulated sum a week for his services, the
soliciting by defendant for his own personal employment of orders
for window cleaning from former customers of plaintiffs is not a
violation of his contract. Gilbert v. Wilmer, 388.

5. For sale and delivery — Counterclaim.—A contract for the sale
and delivery of certain other goods having been rescinded by mutual
consent, and no part of the purchase price paid, a motion to dis-
miss defendant's counterclaim based on said contract should have
been granted. Kaufmann v. Levy, 389.

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- Tender -

6. Failure to execute Deposit
Damages - Set-off
-Actions.- Plaintiff having agreed to enter the employment of
defendant made a deposit as a guaranty that he would sign a con-
tract for one year from a certain date at a stated weekly salary.
The contract was never signed, or even drawn for signature. Plain-
tiff received from his employer the amount of said deposit pre-

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