(148 N.E.) WHITE, GRATWICK & MITCHELL, Inc., Respondent, v. EMPIRE ENGINEERING COMPANY, Inc., Appellant. (Court of Appeals of New York. May 15, 1925.) Appeal by permission, from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (211 App. Div. 834, 206 N. Y. S. 973), entered December 8, 1924, unanimously affirming a judgment in favor of plaintiff entered upon the report of a referee. The judgment restrained and enjoined the defendant from obstructing, filling in and constructing piers upon lands under water between the shore and the United States harbor line in Niagara river in front of defendant's property. The question was whether the defendant as the abutting and adjacent owner of the property fronting on the Niagara river and of the lands under water in front of its premises may by the construction of piers over such lands extending into the river, impair the means of access to the plaintiff's property, abutting on said river, by impairing navigation to it, and destroy its value for dock purposes. warrant of attachment, and that in case of her failure so to do plaintiff recover from the defendants Genevieve M. Lewis and Royal Indemnity Company, jointly and severally, the value of the aforesaid property so claimed by the defendant Genevieve M. Lewis, with interest from the date of the undertaking. The Appellate Division held that a defense that the sheriff without any authority required a bond, although he failed to secure a bond from the attaching creditor as required by the Civil Practice Act, and that the claimant was entitled to her property under the circumstances without filing a bond, was good if sustained by proof. The following question was certified: "Was plaintiff's motion properly denied as matter of law?” Jonah J. Goldstein and Aiken A. Pope, both of New York City, for appellants. Barnett Cohen and Frank J. O'Neill, both of New York City, for respondent. PER CURIAM. Order affirmed, with costs; question certified answered in the affirmative. HISCOCK, C. J., and CARDOZO, McLAUGHLIN, CRANE, ANDREWS, and LEHPOUND, J., absent. S. Fay Carr and Helen Z. M. Rodgers, MAN, JJ., concur. both of Buffalo, for appellant. David S. Jackson and John B. Richards, both of Buffalo, for respondent. Appeal from Supreme Court, Appellate Di-¡ vision, First Department. Action by Isabelle M. Niles against Frederick Seeler. From a judgment of the Appellate Division (209 App. Div. 867, 205 N. Y. S. 940), affirming a judgment of the Special Term, striking defendant's answer and granting plaintiff's motion for summary judgment, defendant appeals. Judgments reversed. See, also, 181 N. Y. S. 20. Milton R. Weinberger and William Klein, ent. petitioner an award made in street opening proceedings. The question was whether unpaid taxes for the years 1891 to 1897, both inclusive, were valid and enforceable liens on the property in question, notwithstanding the transfer and the foreclosure of a tax lien for unpaid taxes on the same property for the years 1899 to 1910, both inclusive, through which claimant derived her title. George P. Nicholson, Corp. Counsel, of New York City (Joel J. Squier, of New York City, Joseph G. Mathews, of Long Island City, and Charles E. Clarke, of New York City, of counsel), for appellants. Hyman Rubin, of Brooklyn, Arthur P. Hilton, of Jamaica, and Clarence C. Ferris, of New York City, for respondent. PER CURIAM. Order affirmed, with costs, below. on opinion of Young, J., HISCOCK, C. J., and CARDOZO, McLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. PER CURIAM. The defendant's answer and his affidavits produced upon the motion for summary judgment clearly present the issue whether there was any consideration for the note involved in this action. Of course, this was a substantial issue, which defendant was entitled to have tried in the ordinary manner, and which should not have been disposed of by a summary judgment. Gravenhorst v. Zimmerman, 236 N. Y. 22, 38, 39, 139 N. E. 766, 27 A. L. R. 1465; General Investment Co. v. Interborough Rapid Transit Co., 235 N. Y. 133, 139 N. E. 216. The judgments should be reversed, with Anthony NIESEN, Appellant, v. Charles GAcosts in all courts, and the motion for summary judgment denied, with costs. HISCOCK, C. J., and CARDOZO, Mc LAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. POUND, J., absent. Judgments reversed, etc. 1 POUND, J., absent. 2 LEWSKI, Respondent. (Court of Appeals of New York. June 2, 1925.) Appeal from a judgment, entered December 19, 1924, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department (211 App. Div. 858, 207 N. Y. S. 885), reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was brought by a broker against a prospective purchaser of real estate to recover commissions which the broker would have re chased the premises and executed a formal contract of purchase and acquired title in accordance therewith. In the Matter of the Application of Esther H.ceived from the owner had the customer purSALZBERG, Respondent, for Payment of an Award Made in the Matter of Acquiring Title to COOPER AVENUE AND CENTRAL AVENUE IN the BOROUGH OF QUEENS, CITY OF NEW YORK. Comptroller of the City of New York et al., Appellants; Title Guarantee & Trust Company, Respondent. (Court of Appeals of New York. June 2, 1925.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (212 App. Div. 44, 206 N. Y. S. 837), entered December 5, 1924, which unanimously affirmed an order of Special Term directing the comptroller of the city of New York to pay to the Francis X. Carmody, Joseph H. Kutner, and Kenneth C. Newman, all of New York City, for appellant. Jacob Landy and Joseph E. Greenberg, both of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. HISCOCK, C. J., and CARDOZO, McLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. POUND, J., absent. (148 N.E.) 1 (Court of Appeals of New York. June 2, directed by the court. The action was to recover upon a policy of fire insurance. The question was as to the proper construction of the following indorsements on the policy: "In consideration of the premium recited in this policy and other valuable considerations, it is herewith understood and agreed that no Appeal, by permission, from a judgment of claim for premium of whatever nature shall be the Appellate Division of the Supreme Court made under this policy in respect to any sugars in the First Judicial Department (209 App. that shall at any time come under the coverage Div. 751, 205 N. Y. S. 100), entered July 18, of the special policy issued in conjunction with 1924, in favor of plaintiff upon the submis- the so-called Cuban Sugar Finance Syndicate." "In consideration of the premium for which sion of a controversy under section 546 of this policy is written and other valuable conthe Civil Practice Act. The respondent siderations, it is herewith further understood claims under an assignment made to it in and agreed that should any sugars of the as1920 by the Rush Silk Manufacturing Com-sured at any time during the life of this policy pany of an amount due the Rush Silk Manu- be covered by insurance for the account of the facturing Company under a contract original- Cuban Sugar Syndicate Corporation coincidenly executed in 1917, and modified in 1918, tally and simultaneously with their release by whereby appellants undertook to act as fact- the said Cuban Sugar Syndicate Corporation ors in the marketing of merchandise made this policy shall then automatically cover such by the Rush Silk Manufacturing Company. The appellants contend that they are entitled The sugars insured by the policies were on to a lien on the balance due on the factoring May 10, 1918, pledged to the Cuban Sugar contract to secure themselves for the pay- Syndicate Corporation and, in accordance ment of deliveries of raw silk made by them with the plan and requirements for the synunder contracts made in 1919 and 1920, dicate, were covered by insurance policies whereby they sold silk to respondent's as- for the account of the syndicate, during the signor to be delivered in installments and life of the loan. The loan was wholly repaid for by trade acceptances, and that such paid by August 8, 1918, and the pledged lien extends to secure trade acceptances so sugars were released by the syndicate, the given, which fell due several months after warehouse receipts surrendered, and the innotice of the assignment and which respond-surance certificates covering the sugar for ent's assignor failed to meet. sugar so released." the account of the syndicate as pledgee and Joseph Sapinsky and Max Miller, both of of the owner as pledgor were surrendered to New York City, for appellants. F. Carroll Taylor and Louis H. Porter, both of New York City, for respondent. the insurers. The fire occurred September Milo Otis Bennett, of Mt. Vernon, and Paul D. Compton and William Otis Badger, Jr., PER CURIAM. Judgment affirmed, with both of New York City, for appellant. costs. W. Calvin Chesnut, of Baltimore Md., and William S. Sinclair and Bruce Ellison both of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. HISCOCK, C. J., and CARDOZO, McLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. POUND, J., absent. 3 August G. CLAMBOUR, Respondent, v. GER- 1925.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (210 App. Div. 398, 206 N. Y. S. 231), entered December 2, 1924, modifying, and affirming as modified, a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was for breach of contract for failure to accept 50 bales of raw silk under a contract of sale entered into between Takata & Co., plaintiff's assignor, and the defendant, to be delivered ten bales at a time. One of the rules of the Silk Association of America, which was made a part of the contract, is as follows: "Seller should notify buyer of readiness to deliver in accordance with contract terms of delivery and buyer is under equal obligations to call for silk when due him, but inadvertent failure of either party to tender or call for delivery shall not void contract where readiness to deliver can be proved." The answer set up as a defense that the seller in breach of its agreement failed to notify it during July of readiness to deliver said raw silk in accordance with the terms of the contract, and that the defendant was at all times ready, willing and able to accept and pay for deliveries in accordance with the contract, which it had fully performed, except in so far as it was prevented by Takata & Co. It appeared on the trial that the seller had notified defendant within the required time that twenty bales had arrived and were ready for shipment but that defendant had never called for them. Plaintiff contended that the seller had defaulted in failing to notify as to the remainder. Herman Shulman, Mortimer Hays, Jacob J. Podell, and A. Kane Kaufman, all of New York City, for appellant. Harry C. Kayser and Webster J. Oliver, both of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. HISCOCK, C. J., and CARDOZO, McLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. POUND, J., absent. Marie C. DOLGE, as Administratrix of the Estate of Edward H. Dolge, Deceased, Appellant, v. COMMERCIAL CASUALTY INSURANCE COMPANY, Respondent. (Court of Appeals of New York. June 2, 1925.) Judicial Department (211 App. Div. 112, 207 N. Y. S. 42), which reversed a judgment in favor of plaintiff entered upon an order of Special Term granting a motion by plaintiff for judgment on the pleadings and directed a dismissal of the complaint. The action was brought by the plaintiff, as administratrix, to recover a single indemnity under a policy termed "travel accident policy," issued to Edward A. Dolge, the deceased, which provided insurance in the event of an accident while the assured was a passenger on a public conveyance. The amended complaint sets forth that on January 5, 1924, while the policy was in full force and effect, said Dolge was traveling from the Bronx to his home in Mt. Vernon, Westchester county, N. Y., and while a passenger on a public conveyance, namely, "the Hunt's Point station of New York, Westchester & Boston Railway," which is a common carrier of passengers, received an accidental injury, viz. a gunshot wound, inflicted by the discharge of a gun in the hands of an unknown person, and that the injury thus received resulted in Dolge's death within 24 hours. Julius Hallheimer and Hugo Levy, both of New York City, for appellant. Theodore H. Lord and Fred H. Rees, both of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. HISCOCK, C. J., and CARDOZO, MeLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. POUND, J., absent. 2 Samuel NAGLER, Respondent, v. JAMES BUTLER, Inc., et al., Appellants. (Court of Appeals of New York. June 2, 1925.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (— App. Div. —, 207 N. Y. S. 883), entered February 7, 1925, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendants. Plaintiff contended that while performing his work cleaning windows in the store of James Butler, Inc., he was injured through the negligence of defendant Appeal from a judgment, entered December | Mark Lawless, district superintendent of said 19, 1924, upon an order of the Appellate Divi- defendant James Butler, Inc., who while actsion of the Supreme Court in the Second ing within the scope of his employment en (148 N.E.) and tered the store and negligently struck against HISCOCK, C. J., and CARDOZO, Mcthe ladder on which plaintiff was standing, LAUGHLIN, CRANE, ANDREWS, throwing him to the floor and causing the LEHMAN, JJ., concur. injuries complained of. POUND, J., absent. See, also, 207 App. Div 600, 202 N. Y. S. 527. Clarence S. Zipp and E. C. Sherwood, both of New York City, for appellant James Butler, Inc. Lilian Herbert Andrews and John H. Rogan, both of New York City, for appellant Lawless. Alfred M. Bailey and Nathan Frankel, both of New York City, for respondent. N. Y. S. 922), entered March 14, 1925, affirming a judgment in favor of plaintiff (123 Misc. Rep. 89, 204 N. Y. S. 327), entered upon a verdict directed by the court. The action was to recover $90,000 and interest, the amount alleged to have been paid by the plaintiff to one Umberto De Poli in Manila, Philippine Islands, under a commercial letter of credit issued by plaintiff upon the application of defendant. The defendant resisted such claim upon the ground that the plaintiff did not comply with the terms of the credit and further that, under the circumstances of the admixture by plaintiff of transactions alleged to be for defendant's account with transactions for the plaintiff's individual account, the defendant should not be held responsible for transactions not shown specifically to have been for its account. Frederick B. Campbell, of New York City, and Paul C. Whipp, of Cambridge, Mass., for appellant. John T. Loughran, of Kingston, James A. Delehanty, of Albany, and John W. Hannon, of New York City, for respondent. 2 PEOPLE of the State of New York, Respondent, v. Thomas MAZURKIEWICZ, Appellant. (Court of Appeals of New York. June 2, 1925.) --- Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (— App. Div. -,208 N. Y. S. 917), entered March 30, 1925, which affirmed a judgment of the Erie County Court, rendered upon a verdict convicting the defendant of the crime of arson in the first degree. Thomas L. Newton, of Buffalo, for appellant. Guy B. Moore, Dist. Atty., of Buffalo, (John J. Kane, of Buffalo, of counsel), for respondent. PER CURIAM. Judgment affirmed, under provisions of section 542 of the Code of Criminal Procedure. HISCOCK, C. J., and CARDOZO, McLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. POUND, J., absent. 3 Thomas M. STANLEY, Appellant, v. Daniel J. LEARY et al., Copartners under the Firm Name of Leary & Co., Respondents. (Court of Appeals of New York. June 2, 1925.) Appeal from a judgment, entered February 2, 1924, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department (208 App. Div. 714, 202 N. Y. S. 954), reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing a dismissal of the complaint. The plaintiff, a profit-sharing employee, brought this action against his employers for an accounting of an alleged unpaid balance of compensation for services rendered in the year 1917, claiming the same to be due because the defendants, in computing the amount of his compensation, included as a deduction from their PER CURIAM. Judgment affirmed, with gross receipts a sum paid by them to the costs. United States as excess profits tax. |