HISCOCK, C. J., and CARDOZO, POUND, CRANE, ANDREWS, and LEHMAN, JJ.,

concur.

MCLAUGHLIN, J., absent.

Frederick H. HEINEMAN, Respondent, v.
CITY INVESTING COMPANY, Appellant.
(Court of Appeals of New York. Jan. 21,
1925.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (209 App. Div.. 883, 205 N. Y. S. 927), entered June 6, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The action was in equity for an accounting of the profits in the possession of the defendant arising from a joint adventure involving the purchase and sale of real property in the borough of Manhattan, New York City. The plaintiff, as assignee, sued upon two written contracts providing in the aggregate for a fifteen per cent. interest in the said profits.

Edward F. Clark, Leonard J. Reynolds, and Roger Hinds, all of New York City, for appellant.

Edgar M. Souza and Louis M. Loeb, both of New York City, for respondent.

Harry E. NOENING, Respondent, v. BED-
FORD MILLS, Inc., Appellant.

(Court of Appeals of New York. Jan. 21,
1925.)

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (208 App. Div. 803, 203 N. Y. S. 943), entered June 21,

net sales of the export department, during
the continuance of this contract. In addi-
tion to the salary of $3,500 and one-half of
1 per cent. on the net sales of the export
department, we agree to pay you 11⁄2 per
cent. on the net sales of the export depart-
ment made to customers in New York City,
where no other commissions are paid, com-
missions due you to be paid between the 1st
and 15th of the following month." The con-
tract was terminated by mutual consent be
fore its expiration and the question at issue
was whether plaintiff was entitled to com-
missions under the contract on all orders
booked for export up to the time of his leav-
ing or was confined to commissions on goods
sold and actually shipped before that time.

Leon Lauterstein and Milton Winn, both of
New York City, for appellant.
Samuel Hoffman, of New York City, and
Edward Wise, for respondent.

PER CURIAM. Judgment affirmed, with costs.

HISCOCK, C. J., and CARDOZO, POUND, CRANE, ANDREWS, and LEHMAN, JJ. MCLAUGHLIN, J., absent.

3

BANKERS' TRUST COMPANY, Appellant, v.
INTERNATIONAL RAILWAY COM-
PANY, Respondent.

(Court of Appeals of New York. Jan. 27,
1925.)

Appeal from a judgment, entered January 16, 1924, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (207 App. Div. 579, 202 N. Y. S. 561), reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover a balance alleged to be due upon a promissory note made by the International Traction Company to the order of

the plaintiff. The claim of the plaintiff was that while the note in question was not made for the benefit of the defendant to raise made or indorsed by the defendant, it was 1924, affirming a judgment in favor of plain- money that was used by the defendant, and tiff entered upon a verdict directed by the that the defendant agreed to pay the concourt. The action was to recover commis-sideration therefor. This was denied by the sions under a written contract by the terms of which defendant employed plaintiff "as export manager" and agreed to pay plaintiff "for such services $3.500 a year in equal semimonthly payments, and in addition thereto, to pay you one-half of 1 per cent. on the

defendant.

Nathan L. Miller, James Adam Murphy, and Preston Lockwood, all of New York City, for appellant.

Frank C. Laughlin and Thomas D. Thacher, both of New York City, for respondent.

(147 N.E.)

PER CURIAM. Judgment affirmed, with costs.

the Guaranty Trust Company of New York. Thereafter and in accordance with the terms of the contract plaintiff duly caused a credit to be opened with the Guaranty Trust Company of New York in an amount sufficient to

HISCOCK, C. J., and CARDOZO, POUND,
CRANE, and LEHMAN, JJ., concur.
MCLAUGHLIN and ANDREWS, JJ., not pay for the merchandise and duly maintain-

sitting.

1

PEOPLE of the State of New York, Respond

ent, v. William S. FORD, Appellant. (Court of Appeals of New York. Jan. 27, 1925.)

Appeal from a judgment of the Supreme Court, rendered May 28, 1924, at a Trial Term for the county of Kings upon a verdict convicting the defendant of the crime of murder in the first degree.

Marshall Snyder, of Brooklyn, for appel

lant.

Charles J. Dodd, Dist. Atty., of Brooklyn, (Henry J. Walsh, of Brooklyn, of counsel), for respondent.

ed the credit; that during the month of June, 1917, defendant wholly failed to ship any part of said caustic soda; that at defendant's request, plaintiff caused the credit with the Guaranty Trust Company to be extended beyond the month of June, but notified defendant that he reserved all rights against defendant for its failure to make shipment during June; that up to the date of the commencement of this action defendant had shipped no caustic soda under said contract excepting 175 tons which it shipped in August, 1917, and which plaintiff accepted and paid for. The answer besides a general denial alleged as a partial defense that the contract by mutual consent was "extended to and including the month of October, 1917, and beyond that time," and that during said time the exportation of caustic soda from the United States was prohibited, except upon

PER CURIAM. Judgment of conviction licenses to be issued as prescribed; that ap

affirmed.

CARDOZO, POUND, CRANE, ANDREWS, and LEHMAN, JJ., concur. HISCOCK, C. J., and MCLAUGHLIN, J., absent.

2

Eugenio VARAGNOLO, Respondent, v. PAR-
TOLA MANUFACTURING COMPANY,
Appellant.

(Court of Appeals of New York. Jan. 27,
1925.)

Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (209 App. Div. 347, 204 N. Y. S. 577), entered May 16, 1924, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial. The action was to recover damages for failure to deliver goods sold by defendant to plaintiff. The complaint alleged that, on or about May 28, 1917, defendant sold and agreed to deliver to plaintiff 1,000 tons of American caustic soda to be shipped by defendant to plaintiff at Genoa, Italy, during the month of June, 1917, for the price of $26.50 per 100 kilos, the cost of freight and insurance, including war risk insurance, to be paid by defendant; payment for the soda to be made by plaintiff against shipping documents through a credit to be opened with

plications for licenses for exportation of the balance of 825 tons of caustic soda to plaintiff were duly and seasonably made on behalf of defendant and denied by the United States authorities and that defendant was thereby without its fault prevented from making shipment.

Robert L. Luce, Lloyd Church, Albert A. Hovell, and Sidney A. Clarkson, all of New York City, for appellant.

Robert McLeod Jackson, of New York City, for respondent.

PER CURIAM. Order affirmed, and judgment absolute ordered against appellant on the stipulation, with costs in all courts.

CARDOZO, POUND, CRANE, ANDREWS, and LEHMAN, JJ., concur.

HISCOCK, C. J., not voting.
MCLAUGHLIN, J., absent.

3

Joseph L. VIESER, Appellant, v. David S.
BELLOWS, Respondent.

(Court of Appeals of New York. Jan. 27,
1925.)

Motion to dismiss an appeal, by permission, from a judgment, entered June 23, 1924, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (209 App. Div. 540, 205 N. Y. S. 26), which affirmed a determination of the Ap

Jacob H. Corn, of New York City, for mo- motion. tion.

Max Silverstein, of New York City, opposed.

(147 N.E.)

questions which, by lapse of time, were abstract and academic at inception of litigation.

second July 12, 1924, affirming a judgment in | 2. Certiorari 31-Court will not decide favor of plaintiffs entered upon a decision of the court on trial at Special Term. The motion was made upon the ground that permission to appeal had not been obtained.

Court will not decide questions which, by lapse of time, were abstract and academic at A. T. Clearwater, of Albany, for the mo- inception of litigation, even though of public interest.

tion.

Arthur A. Brown, of New York City, opposed.

PER CURIAM. Motion in each case to dismiss appeal granted, and appeal dismiss ed, with costs and $10 costs of motion.

IRISH FREE STATE et al., Respondents, v.
Eamonn DE VALERA et al., Appellants,
Impleaded with Others.

¡Court of Appeals of New York. Jan. 27,
1925.)

Appeal from Supreme Court, Appellate Division, Fourth Department.

Certiorari by the People of the State of New York, on the relation of Julius Hoesterey, Jr., against George S. Taylor and others, as Assessors of the City of Rochester, N. Y., in which the University of Rochester was interpleaded. From an order of the Appellate Division (210 App, Div. 196, 205 N. Y. S. 897), reversing an order of the Special Term (121 Misc. Rep. 718, 202 N. Y. S. 7), vacating a certiorari order to review action of Assessors of Rochester in exempting property of University, and dismissing the proceeding, defendants appeal, on certification by Appellate Division of questions of law (- App. Div. 206 N. Y. S. 948). Order of Appellate Division reversed, and that of Special Term affirmed.

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (210 App. Div. 848, 206 N. Y. S. 919), entered October 14, 1924, which reversed an order of law and not in the exercise of discretion an Appeal from order reversing as matter of Special Term granting a motion for an allow-order of Special Term which granted defendance out of a trust estate for expenses and counsel fees. The motion was made upon the ground that the order appealed from was intermediate and that permission to appeal

had not been obtained.

William C. Cannon and Frederick W. Girdner, both of New York City, for the motion. Martin Conboy, of Riverdale on Hudson, David Asch and Frank P. Walsh, both of New York City, opposed.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion,

2

ants' motion to vacate an order of certiorari to review the action of the assessors of the city of Rochester in exempting from assessment, for the purpose of taxation, property of University of Rochester known as the Eastman School of Music. The Appellate Division certified as questions of law the following:

1. Upon the facts appearing in the petition herein, is the relator entitled to a certiorari order to review the action of the assessors of the city of Rochester in exempting from assessment the property described in the petition?

2. Are the legal questions which will arise upon a hearing upon the merits, relative to the exemption of the property described in the petition, of such public interest that they should be determined even though the court

PEOPLE ex rel. HOESTEREY v. TAYLOR might not be able to grant specific relief by correction of the assessment roll?

et al.