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(148 N.E.) the application. People ex rel. Dawley v. Wilson, 200 App. Div. 537, 192 N. Y. S. 751, affirmed 235 N. Y. 587, 139 N. E. 745.

in the matter of Acquiring Title by the CITY As it seems clear that the board would ex OF NEW YORK, Respondent, to Lands on ercise its power to vary the provisions of the the Northerly Side of WEST TWO HUN. resolution to the extent of granting the per

DRED AND FIFTH STREET in the Bosmit now before us under section 20, no sub

ough of Manhattan. Northern Terminal Cor. stantial right of any party will be affected by

poration of New York, Appellant. an affirmance of the order appealed from. (Court of Appeals of New York. April 7, The order should be affirmed, with costs.

1925.)

PER CURIAM, Motion to amend remit.
HISCOCK, C. J., and CARDOZO, POUND,
MCLAUGHLIN, CRANE, and LEHMAN, JJ., titur. denied, with $10 costs and necessary

printing disbursements. See 240 N. Y. 68, concur.

147 N. E. 361. ANDREWS, J., absent.

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5

(240 N. Y. 608) FRIEDMAN V. FRIEDMAN.

(Court of Appeals of New York. April 7,

1925.)
1

Divorce On 181_Statute providing for appeal
MAURICE O'MEARA COMPANY, Appellant, from order granting new trial held inappli.
V, NATIONAL PARK BANK OF NEW cable in suit for absolute divorce.
YORK, Respondent,

Civil Practice Act, 8 588, subd. 2, providing

that an appeal may be taken to Court of Ap(Court of Appeals of New York, April 7,

peals from an order of Appellate Division, 1925.)

granting a new trial on exceptions, where apPER CURIAM. Motion for reargument de- pellant stipulates that on affirmance judgment

absolute shall be rendered against him, held innied, with $10 costs and necessary printing applicable to appeal from order granting

new disbursements. See 239 N, Y. 386, 146 N. E. trial in action for absolute divorce in view of 636.

Civil Practice Act, $$ 1149, 1150, and rules 281 and 282.

Suit for divorce by Isidor Friedman

against Elsie Friedman. From judgment of 2

Appellate Division (212 App. Div. 823, 207 Sam DAVIS, Appellant, v. Frank W. SMITH, N, Y. S. 839), unanimously reversing judg. Respondent.

ment in favor of defendant and granting a (Court of Appeals of New York. April 7,

new trial (122 Misc. Rep. 700, 204 N. Y. S. 1925.)

550), defendant appeals. On motion to dis

miss appeal. Motion granted. PER CURIAM. Motion to amend remittitur

Oswald N. Jacoby, of New York City, for denied, with $10 costs and necessary print

the motion. ing disbursements. See 240 N. Y. 567, 148 N.

Isidor E. Schlesinger, of New York City, E. 708.

opposed.

was

MCLAUGHLIN, J. This action

brought to procure a judgment of absolute 3

divorce. The answer put in issue the alleIn the matter of the Application of David gation of adultery. After issue had been HIRSHFIELD, as Commissioner of Accounts joined, the court, upon the application of the of the City of New York, Respondent, for a defendant, made an order, as it was obliged Warrant of Attachment v. Augustus J. RINN, to do, directing that such issue in the form Appellant.

of specific questions be tried by a jury. Civil

Practice Act, § 1149. It was so tried, and a (Court of Appeals of New York. April 7,

verdict rendered in favor of the defendant, 1925.)

and the court upon such verdict and evidence PER CURIAM. Motion to amend remitti- taken at the trial made a decision that the tur denied, with $10 costs and necessary defendant had not committed adultery. printing disbursements. See 239 N. Y. 98, Judgment was entered to this effect, and the 145 N. E. 816.

complaint dismissed upon the merits. The

plaintiff then appealed to the Appellate Di- , trary to the letter and spirit of the statute vision, where the judgment in favor of the and against public policy; not only this, but defendant was unanimously reversed, and a in the face of a verdict and finding by the new trial ordered for an alleged error in the court that the defendant has not committed exclusion of evidence. The defendant there adultery. The case in principle cannot be upon appealed to this court, giving the usual distinguished from Conger v. Conger, 77 X. stipulation (Civil Practice Act, § 588, subd. Y. 432. 2) for judgment absolute against her in case The motion to dismiss the appeal should of affirmance.

be granted, without costs. The plaintiff now moves to dismiss the ap All concur. peal, upon the ground that the statute pro Appeal dismissed. viding for judgment absolute upon a stipulation was not intended to and does not apply to a judgment for absolute divorce. I am of the opinion that the motion should

1 be granted and the appeal dismissed. It is in the matter of the Probate of the WILL of true that the subdivision of the section of Joseph KNAPP, Deceased. John Knapp et the Civil Practice Act referred to expressly

al., Appellants; Fannie Knapp, Respondent. provides that an appeal may be taken to the (Court of Appeals of New York. April 10, Court of Appeals from an order of the Ap

1925.) pellate Division granting a new trial on exceptions, where the appellant stipulates that Appeal from an order of the Appellate Di. upon affirmance judgment absolute shall be vision of the Supreme Court in the Fourth rendered against him. This provision of the Judicial Department (200 App. Div. 851, 191 statute, however, when read in connection N. Y. S. 934), entered December 9, 1921, which with other provisions of the Civil Practice affirmed a decree of the Monroe County SurAct and the rules of practice, indicates that rogate's Court, admitting to probate a paper the Legislature never intended that it should propounded as the last will and testament of apply to an action for absolute divorce. Such Joseph Knapp, deceased. Probate was oba judgment cannot be obtained by consentjected to upon the grounds that the alleged nor by default. In case of default, either in will was not duly executed as required by pleading or appearing in the action, the law; that the testator was not competent plaintiff, before he can obtain a judgment, to make a will at the time it purports to must prove the material allegations of the have been executed; that it was not the complaint. Civil Practice Act, $ 1150. The last will of Joseph Knapp; and that the excourt cannot appoint a referee agreed upon ecution of the alleged will was obtained hy by the parties or nominated by either of undue influence. them. Civil Practice Act, rule 281. Indeed, Eugene Van Voorhis, of Rochester, for apif a defendant makes default in pleading, a pellants. referee cannot be appointed, but the court

Harold P. Burke and Frank J. Hone, both itself must take the proof in open court, and of Rochester, for respondent. a copy of the evidence taken must be written out and filed with the judgment roll. Civil PER CURIAM. Order affirmed, with costs Practice Act, rule 282.

to respondent payable out of estate. To permit judgment to be entered upon the defendant's stipulation would be in effect HISCOCK, C. J., and CARDOZO, POUND, to grant a judgment of divorce by consent, McLAUGHLIN, CRANE, and LEHMAN, JJ., without evidence or findings to sustain the concur. allegation of adultery. This would be con ANDREWS, J., absent.

(148 N.E.)

pany and others. From an order of the Ap

pellate Division (210 App. Div. 328, 206 N. Y.
In the matter of the Claim of John DOMRES, S. 103), unanimously affirming an order of
Respondent, v. SYRACUSE SAFE COM-
PANY et al., Appellants.

the Special Term, confirming report of com

missioners appointed under Grade Crossing (Court of Appeals of New York, April 10, Act of City of Buffalo (Laws 1888, c. 345, and 1925.)

amendments thereto) the City of Buffalo

and others appeal. Affirmed. Appeal, by permission, from an order of

See, also, 210 App. Div. 868, 206 N. Y. S. the Appellate Division of the Supreme Court

910.
in the Third Judicial Department (211 App.
Div. 823, 206 N. Y. S. 899), entered Decem-

Frederick C. Rupp, Corporation Counsel,
ber 2, 1924, unanimously affirming an award of Buffalo (Jeremiah J. Hurley, of Buffalo,
of the State Industrial Board made under of counsel), for appellant city of Buffalo.
the Workmen's Compensation Law. Claim-

Louis L. Babcock and Frank Rumsey, both ant was injured while sitting in the doorway of Buffalo, for appellants Delaware, Lackaof his employer's plant during lunch hour.

wanna & Western Railway Company et al. The driver of a passing automobile lost con

Myron S. Short and De Witt Clinton, both trol, it mounted the curb and struck the of Buffalo, for respondents Grade Crossing claimant. The question was whether the re

Commissioners. sulting injuries arose out of and in the course

Joseph Swart and Edward L. Jellinek, both of his employment.

of Buffalo, for respondent A. Schreiber Brew

ing Company. Wilbur Van Duyn, of Syracuse, for appel

Simon Fleischmann, of Buffalo, and Benlants. Albert Ottinger, Atty. Gen. (E. C. Aiken, jamin s. Dean, of Jamestown, for respond

ent Kamman. Deputy Atty. Gen., of counsel), for respond

Frank F. Williams, of Buffalo, for respondent.

ent Danforth.

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PER CURIAM. Order affirmed, with costs.

PER CURIAM. The grade crossing comHISCOCK, C. J., and CARDOZO, POUND, [cided that it was necessary to close or dis

missioners of the city of Buffalo, having deCRANE, and LEHMAN, JJ., concur. MCLAUGHLIN and ANDREWS, JJ., dis continue a part of Bailey avenue, brought

this proceeding under the authority of statsent.

ute (L. 1888, c. 345, 812; L. 1911, c. 358;

L. 1916, c. 576) for the appointment of com(240 N. Y. 612) 2

missioners to ascertain the compensation in re GRADE CROSSING COM'RS OF CITY | payable to abutting owners. The city of BufOF BUFFALO.

falo and the railroad companies made an

swer in opposition to the petition that the In re A. SCHREIBER BREWING CO. et al. owners, though barred of access to the north, (Court of Appeals of New York. May 5,

had been left with access to the south; that 1925.)

this access was adequate and reasonable,

with the result that the ensuing inconvenAppeal and error Om 1091(1)–Presumed that ience was damnum absque injuria; and that finding of damage, unanimously affirmed, is supported by evidence, and that appointment the amandatory act of 1916, if it enlarged of commissioners was justified.

the liability of the railroads, was void to

that extent as an unconstitutional impairConst. art. 6, § 9, enforces on Court of Appeals presumption that finding of damage to ment of the obligation of an existing con

tract. A trial of these issues was had beabutting owner in proceeding to close part of avenue in connection with elimination of grade fore a justice of the Supreme Court, who crossing, unanimously affirmed, is supported by | filed an opinion in favor of the petitioners, evidence, and that there was showing of injury but for some unexplained reason did not sufficient to justify appointment of commission- enter an order thereon. A second applicaers, under Laws 1888, c. 345, 8 12; Laws 1911, tion was then made, and was brought on for c. 358; Laws 1916, c. 576.

hearing before another justice, the notice of

motion reciting the previous petition and all Appeal from Supreme Court, Appellate Di.

proceedings thereunder. On this application vision, First Department.

an order, was entered appointing three com. In the matter of the application of the missioners to ascertain and report the just Grade Crossing Commissioners of the City compensation to be paid to stated owners for of Buffalo for the appointment of Commis- the injury suffered by the closing of the ave. sioners in the matter of lands claimed to nue. The commissioners thus appointed rebe owned by the A, Schreiber Brewing Com- ported after a full hearing that they

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at the sums stated in their report. Upon ap ble for the jury to find as it did that owing to plication to the court, the report was con obstructions to the view and the negligence firmed, and the order of confirmation has of defendant, plaintiff was exonerated from been unanimously affirmed.

the imputation of negligence because of nonMany interesting and important questions compliance with that provision of the General were discussed in the opinion of the Appel- Highway Traffic Law (Cons. Laws, c. 70, $ 12, late Division and in the arguments of coun- subd. 4), which says: sel. They are not open to consideration here.

"Every driver of a vehicle approaching the The mandate of the Constitution enforces intersection of a street or public road sball upon us the presumption that the finding of grant the right of way at such intersection to damage, unanimously affirmed, is supported any vehicle approaching from his right; proby the evidence, and that, upon the applica- vided, that wherever traffic officers are station for the intermediate order, there was a tioned they shall have full power to regulate showing of injury sufficient to justify the ap

traffic." pointment of commissioners. Constitution, art. 6, § 9. Objections to the admission and this conclusion is based on the particular

We desire to make it plain, however, that exclusion of testimony have been considered, and have been found to be unsubstantial facts of this case, and that we do not at all

abandon or recede from the rule laid down There is nothing else to be reviewed. The order should be affirmed, with costs. Y. 94, 97, 145 N. E. 751, 752. We said there,

by this court in Shirley v. Larkin Co., 239 N. HISCOCK, C. J., and CARDOZO, POUND,

where it appeared that the offending party CRANE, ANDREWS, and LEHMAN, JJ.,

could perfectly well see the car approaching concur; MCLAUGHLIN, J., not sitting.

on his right:

“If it appears that the relative positions of Order affirmed.

the two cars, taking into account distances from the point of intersection and speed, is such that danger of a collision may reasonably

be apprehended if the car on the left proceeds, (240 N. Y. 614) 1

it is the duty of its driver to slow. up or stop SALM V. BLEAU.

and give to the car on the right the precedence

which is guaranteed to it by the statute." (Court of Appeals of New York. May 5, 1925.)

HISCOCK, C. J., and CARDOZO, POUND, Highways On 175(1)-Plaintiff not imputed MCLAUGHLIN, CRANE, ANDREWS, and with negligence for failure to grant right of

LEHMAN, JJ., concur. way to vehicle approaching from his right.

Plaintiff's noncompliance with General Highway Traffic Law, § 12, subd. 4, requiring

Judgment affirmed with costs. a driver to grant right of way to a vehicle approaching from his right, held not negligence, in view of obstructions to the view and defendant's negligence.

2

(240 N. Y. 616)

POWELL et al. v, UNITED ASSOCIATION Appeal from Supreme Court, Appellate Di OF PLUMBERS AND STEAMFITTERS vision, Third Department.

OF UNITED STATES AND CANADA. Action by John E. Salm against Joseph Bleau, doing business under the name of Jos (Court of Appeals of New York. May 5, 1925.) eph Bleau & Son. From a judgment of the 1. Corporations m665(3).-Relief seldom ex. Appellate Division of the Supreme Court, tended beyond call of emergency in contro. Third Department (210 App. Div. 554, 206 N.

versies touching internal management of for. Y. S. 415), affirming a judgment for plaintitr,

eign corporations, defendant, appeals. Affirmed.

Courts are reluctant to interfere by in

junction in controversies touching internal P. C. Dugan, of Albany, for appellant.

management of foreign corporations, and, Edward J. Halter, of Albany, for respond though reluctance may be overcome by urgent ent.

need, relief is seldom, if ever, extended beyond

call of emergency. PER CURIAM. In this case we have con- 2. Trade unions Em9–Injunction against concluded to affirm the judgment in favor of

solidation of local unions granted only pend. plaintiff, although such judgment is for dam

ing appeal to convention of members. ages caused by a collision at a highway inter

Threatened disruption of local unions, funesection of plaintiff's car with one which was tioning in state, by resolution of foreign corpoapproaching from his right, and which, under ration consolidating them, makes injunction ordinary circumstances, would have had the proper to preserve status quo pending appeal

VE

(148 N.E.) to convention of members, but any relief be- , capable of solution till, upon ascertainment yond such time should await exhaustion of rem- of all the facts, they become definite and conedy within corporation and result of appeal. crete.

The judgment of the Appellaté Division and Appeal from Supreme Court, Appellate Di- that of the Special Term should be modified, vision, Second Department.

by striking from the latter judgpient the decAction by Thomas F. Powell, as President laration that the resolution therein described of Local Union 299 of the City of White and all acts thereunder are null and void, and Plains, and others, against the United As by providing that the injunction shall consociation of Plumbers and Steamfitters of tinue until the determination by the convenUnited States and Canada. From a judg. tion of plaintiffs' appeal thereto, and, as so ment of the Appellate Division (211 App. Div. modified, the said judgments should be af810, 206 N. Y. S. 951), unanimously affirming firmed, with costs to the appellant. judgment for plaintiff, on decision of court on trial at Special Term, defendant appeals by

HISCOCK, C. J., and CARDOZO, POUND, permission. Modified, and affirmed as mod- MCLAUGHLIN, CRANE, ANDREWS, and ified.

LEHMAN, JJ., concur.
Sydney A. Syme, of Mt. Vernon, for appel-
lant.

Judgments affirmed.
Humphrey J. Lynch, of New York City, for
respondents.

3

PER CURIAM. The complaint, read in its entirety, exhibits a cause of action to stay the

1

(240 N. Y. 617) enforcement of the defendant's resolution

TREMBATH v. BERNER et al. consolidating the local unions during the pendency of the appeal already taken by the Court of Appeals of New York. May 5, 1925.) plaintiffs to the convention of the members. The judgment goes farther, and, upon a find

1. Bills and notes Cw467 (2)-Allegation that

plaintiff is holder and owner of note sued on ing that the resolution was passed in viola

sufficient. tion of the constitution and the by-laws, de

Allegation that plaintiff is now holder and clares it illegal and restrains its enforcement

owner of note sued on is sufficient, without alforever,

leging how he acquired title. {1} Courts are reluctant to interfere by injunction in controversies that touch the in- 2. Vendor and purchaser w314(1)-Comternal management of foreign corporations. plaint not defective because note is for part. Sauerbrunn v. Hartford Life Ins. Co., 220 N.

of purchase price of lands sold on executory Y. 363, 115 N. E. 1001; Travis v. Knox Ter

agreement to convey, unless showing on face

that vendor deferred action until time for pezone Co., 215 N. Y. 259, 263, 109 N. E. 250,

conveyance. L. R. A, 1916A, 542, Ann. Cas. 1917A, 387; Kimball v. St. Louis & S. F. Ry. Co., 157 Mass. chase price of lands, sold on executory agree

That note sued on represents part of pur7, 8, 31 N. E. 697, 34 Am. St. Rep. 250. Their ment to convey in future, does not render comreluctance may be overcome by the presence plaint defective, unless it shows on face that of some urgent need, but relief is seldom, il vendor deferred action until maturity of last ever, to be extended beyond the call of the installment, on payment of which conveyance emergency.

is due. [2] The threatened disruption of local unions, functioning within the state, made it 3. Pleading em 51.-Allegations in cause of ac

tion for possession of realty should not be proper, so far as an injunction could avail, to incorporated in separate cause of action on preserve the status quo pending appeal to purchase-money note. the convention. Brown v. Order of Foresters, Allegations in cause of action for posses176 N. Y. 132, 68 N. E. 145. Relief beyond sion of realty, sold by plaintiff on executory that time, if granted at all, should wait up- agreement to convey in future, should not be on the exhaustion of the remedy within the read into separate cause of action on purchasecorporation and the result of the appeal. money note in determining its sufficiency. Hickey v. Baine, 195 Mass. 446, 452, 81 N. E. 201. If the merger is then annulled, resort to 4. Vendor and purchaser Om 189—Vendee held

not estopped to dispute vendor's title, the courts will be unnecessary. If it is sus

Where contract of sale shows legal title to tained, there will be need to consider the fit

be in third person, and it does not appear that ness of going farther, and the curative effect vendor is entitled to a deed, vendee in possesof subsequent approval in respect of prior ir- sion, when sued in ejectment, is not estopped regularities. Problems of this order are in- | to dispute vendor's title.

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