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(148 N.E.)

directed by the court. The action was to

recover upon a policy of fire insurance. UNITED STATES TRUST COMPANY of The question was as to the proper construcPATERSON, N. J., Respondent, v. Jacob tion of the following indorsements on the MENDELSON et al., Appellants.

policy: (Court of Appeals of New York, June 2, "In consideration of the premium recited in 1925.)

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.” sion of a controversy under section 546 of this policy is written and other valuable con

"In consideration of the premium for which the 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 art as fact- the said Cuban Sugar Syndicate Corporation ors in the marketing of merchandise made this policy shall then automatically cover such

sugar so released.” 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 row 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.

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.

the insurers. The fire occurred September F. Carroll Taylor and Louis H. Porter,

8, 1918. both of New York City, for respondent.

Milo Otis Bennett, of Mt. Vernon, and Paul

D. Compton and William Otis Badger, Jr., PER CURIAM. Judgment afirmed, with both of New York City, for appellant. costs.

W. Calvin Chesnut, of Baltimore Md., and

William S. Sinclair and Bruce Ellison both
HISCOCK, O. J., and CARDOZO, MC- of New York City, for respondent.
LAUGHLIN, CRANE, ANDREWS, and LEH-
MAN, JJ.,

PER CURIAM. Judgment affirmed, with
POUND, J., absent.

costs.

HISCOCK, O. J., and CARDOZO, MC

LAUGHLIN, CRANE, ANDREWS, and LEH. 2

MAN, JJ., concur.
CUBAN COMMERCIAL & INDUSTRIAL POUND, J., absent.
COMPANY,

Respondent, RICHMOND
FIRE INSURANCE COMPANY, Appellant.
(Court of Appeals of New York. June 2,

3 1925.)

August G. CLAMBOUR, Respondent, v, GERAppeal, by permission, from a judgment of

SETA CORPORATION, Appellant. the Appellate Division of the Supreme Court

(Court of Appeals of New York. June 2, in the First Judicial Department (211 App.

1925.) Div. 846, 207 N. Y. S. 827), entered January 27, 1925, unanimously affirming a judgment Appeal from a judgment of the Appellate in favor of plaintiff entered upon a verdict | Division of the Supreme Court in the First

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Judicial Department (210 App. Div. 398, 206, Judicial Department (211 App. Div. 112, 207 N. Y. S. 231), entered December 2, 1924, N. Y. S. 42), which reversed a judgment in modifying, and affirming as modified, a judg- favor of plaintiff entered upon an order of ment in favor of plaintiff entered upon ver- | Special Term granting a motion by plaintiff dict directed by the court. The action was for judgment on the pleadings and directed for breach of contract for failure to accept a dismissal of the complaint. The action was 50 bales of raw silk under a contract of sale brought by the plaintiff, as administratrix, entered into between Takata & Co., plaintiff's to recover a single indemnity under a policy assignor, and the defendant, to be delivered | termed "travel accident policy," issued to ten bales at a time. One of the rules of the Edward A. Dolge, the deceased, which pro Silk Association of America, which was made vided insurance in the event of an accident a part of the contract, is as follows:

while the assured was a passenger on a pub"Seller should notify buyer of readiness to lic conveyance. The amended complaint sets deliver in accordance with contract terms of de- forth that on January 5, 1924, while the poli. livery and buyer is under equal obligations to cy was in full force and effect, said Dolge call for silk when due him, but inadvertent fail. was traveling from the Bronx to. his home ure of either party to tender or call for delivery in Mt. Vernon, Westchester county, N. Y., shall not void contract where readiness to de- and while a passenger public convey. liver can be proved."

ance, namely, “the Hunt's Point station of The answer set up as a defense that the New York, Westchester & Boston Railway," seller in breach of its agreement failed to which is a common carrier of passengers, renotify it during July of readiness to deliver ceived an accidental injury, viz. a gunshot said raw silk in accordance with the terms wound, inflicted by the discharge of a gun of the contract, and that the defendant was

in the hands of an unknown person, and that at all times ready, willing and able to accept

the injury thus received resulted in Dolge's

death within 24 hours. and pay for deliveries in accordance with the contract, which it had fully performed, ex Julius Hallheimer and Hugo Levy, both cept in so far as it was prevented by Takata of New York City, for appellant. & Co. It appeared on the trial that the seller Theodore H. Lord and Fred H. Rees, both had notified defendant within the required of New York City, for respondent. time that twenty bales had arrived and were ready for shipment but that defendant had PER CURIAM. Judgment afirmed, with never called for them. Plaintiff contended costs. that the seller had defaulted in failing to notify as to the remainder.

HISCOCK, O. J., and CARDOZO, Me

LAUGHLIN, Herman Shulman, Mortimer Hays, Jacob LEHMAN, JJ.,

CRANE, ANDREWS, and

concur. J. Podell, and A. Kane Kaufman, all of New

POUND, J., absent. York City, for appellant.

Harry C. Kayser and Webster J. Oliver, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

2 costs.

Samuel NAGLER, Respondent, V. JAMES

BUTLER, Inc., et al., Appellants.
HISCOCK, C. J., and CARDOZO, Mc-
LAUGHLIN, CRANE, ANDREWS, and LEH-

(Court of Appeals of New York. June 2,

1925.) MAN, JJ., concur. POUND, J., absent.

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, af

firming a judgment in favor of plaintiff enMarie C. DOLGE, as Administratrix of the tered upon a verdict in an action to recover

Estate of Edward H. Dolge, Deceased, Ap- for personal injuries alleged to have been suspellant, v. COMMERCIAL CASUALTY IN- tained by plaintiff through the negligence SURANCE COMPANY, Respondent.

of defendants. Plaintiff contended that while

performing his work cleaning windows in (Court of Appeals of New York. June 2, 1925.)

the store of James Butler, Inc., he was in

jured 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 act. sion of the Supreme Court in the Second ing within the scope of his employment en

(148 N.E.)
tered the store and negligently struck against HISCOCK, O. J., and CARDOZO, Me-
the ladder on which plaintiff was standing, | LAUGHLIN, CRANE, ANDREWS, and
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 D. C. Sherwood, both

2
of New York City, for appellant James But-
ler, Inc.

PEOPLE of the State of New York, Respond

ent, v. Thomas MAZURKIEWICZ, Lilian Herbert Andrews and John H. Ro

Appellant,
gan, both of New York City, for appellant
Lawless.

(Court of Appeals of New York. June 2, Alfred M. Bailey and Nathan Frankel, both

1925.) of New York City, for respondent.

Appeal from a judgment of the Appellate PER CURIAM. Judgment affirmed, with Division of the Supreme Court in the Fourth

Judicial Department App. Div. - 208 costs.

N. Y. S. 917), entered March 30, 1925, which

affirmed a judgment of the Erie County HISCOCK, O. J., and CARDOZO, MC

Court, rendered upon a verdict convicting LAUGHLIN, CRANE, ANDREWS, and

the defendant of the crime of arson in the LEHMAN, JJ., concur.

first degree. POUND, J., absent.

Thomas L. Newton, of Buffalo, for appellant.

Guy B. Moore, Dist. Atty., of Buffalo, (John J. Kane, of Buffalo, of counsel), for

respondent.
PHILIPPINE NATIONAL BANK, Respond-
ent, v. BOWRING & COMPANY, Appellant.

PER CURIAM. Judgment affirmed, under (Court of Appeals of New York. June 2, provisions of section 542 of the Code of Crim1925.)

inal Procedure. Appeal from a judgment of the Appellate

HISCOCK, O. J., and CARDOZO, MCDivision of the Supreme Court in the First

LAUGHLIN, CRANE, ANDREWS, and Judicial Department (App. Div.

208

LEHMAN, JJ., concur.
N. Y. S. 922), entered March 14, 1925, affirm-

POUND, I., absent.
ing a judgment in favor of plaintiff (123 Misc.
Rep. 89, 204 N. Y. S. 327), entered upon a ver-
dict directed by the court. The action was
to recover $90,000 and interest, the amount

3
alleged to have been paid by the plaintiff to Thomas M. STANLEY, Appellant, v. Daniel J.
one Umberto De Poli in Manila, Philippine

LEARY et al., Copartners under the Firm Islands, under a commercial letter of credit

Name of Leary & Co., Respondents. issued by plaintiff upon the application of defendant. The defendant resisted such claim (Court of Appeals of New York. June 2, upon the ground that the plaintiff did not

1925.) comply with the terms of the credit and fur

Appeal from a judgment, entered February ther that, under the circumstances of the ad-2, 1924, upon an order of the Appellate Divimixture by plaintiff of transactions alleged sion of the Supreme Court in the Second to be for defendant's account with transac- Judicial Department (208 App. Div. 714, 202 tions for the plaintiff's individual account, N. Y. S. 954), reversing a judgment in favor the defendant should not be held responsible of plaintiff entered upon a decision of the for transactions not shown specifically to court on trial at Special Term and directing have been for its account.

a dismissal of the complaint. The plaintiff, Frederick B. Campbell, of New York City, a profit-sharing employee, brought this acand Paul O. Whipp, of Cambridge, Mass., for tion against his employers for an accounting appellant.

of an alleged unpaid balance of compensation John T. Loughran, of Kingston, James A. for services rendered in the year 1917, claimDelehanty, of Albany, and John W. Hannon, ing the same to be due because the defendof New York City, for respondent.

ants, in computing the amount of his compen

sation, 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.

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Anson Burlingame Cole and George R. Hol, by the court, and directing a dismissal of the ahan, Jr., both of Brooklyn, for appellant. complaint. The action was to recover for

Siegfried F. Hartman, of New York City, an alleged forcible entry and detainer. The for respondents.

evidence showed that during all of the period

defendant was in possession he paid the rent, PER CURIAM. Judgment affirmed, with and there was no evidence to show that the costs.

use of the premises was worth more than the

rent reserved. HISCOCK, O. J., and CARDOZO, Mc

James Farrell, of Troy, for appellant.
LAUGHLIN, CRANE, ANDREWS, and
LEHMAN, JJ., concur.

P. C. Dugan, of Albany, and Abbott H.

Jones, of Troy, for respondent. POUND, J., absent.

PER CURIAM. Judgment affirmed, with

costs, on the ground that, independent of any 1

other question, there was no proof of damPEOPLE of the State of New York, Appellant, ages. v. Michael SCHLAGEL, Respondent.

HISCOCK, O. J., and CARDOZO, Mc(Court of Appeals of New York. June 2, LAUGHLIN, CRANE, ANDREWS, and 1925.)

LEHMAN, JJ., concur.
Appeal from an order of the Appellate POUND, J., absent.
Division of the Supreme Court in the Fourth
Judicial Department (210 App. Div. 323, 206
N. Y. S. 87), entered October 1, 1924, sus-

3 taining defendant's exceptions, ordered to be heard in the first instance by the Appellate PEOPLE of the State of New York, Respond.

ent, V. Joseph HAGEN, Appellant. Division, and granting a motion for a new trial in an action to recover from defendant (Court of Appeals of New York. June 2, a penalty under the provisions of section 182

1925.) of the Conservation Law (See McKinney's

Appeal from a judgment of the Appellate Consol. Laws and Supp.) for having fish nets in his possession within 300 feet of inland Division of the Supreme Court in the Second

Judicial Department App. Div. - 208 waters.

N. Y. S. 915), entered February 26, 1925, Albert Ottinger, Atty. Gen. (John O. Bates, which affirmed a judgment of the Kings Counof Albany, of counsel), for appellant.

ty Court rendered upon a verdict convicting George D. Forsyth, of Rochester, for re- defendant of the crime of murder in the spondent.

second degree. PER CURIAM. Order affirmed, and judg- of New York City, for appellant.

Otho S. Bowling and Robert H. Elder, both ment absolute ordered against appellant on

Charles J. Dodd, Dist. Atty., of Brookthe stipulation, with costs in all courts, on lyn (James I. Cuff, of New York City, of opinion of Clark, J., below.

counsel), for respondent.

HISCOCK, C. J., and CARDOZO, MC PER CURIAM. Judgment affirmed.
LAUGHLIN, CRANE, ANDREWS, and
LEHMAN, JJ., concur.

HISCOCK, C. J., and CARDOZO, McPOUND, J., absent.

LAUGHLIN, CRANE, ANDREWS, and
LEHMAN, JJ., concur.

POUND, J., absent.
2
Edward J. QUINN, Appellant, v. Thomas Mc-
COCHRANE, Respondent.

4

AIMONE (Court of Appeals of New York. June 2,

MANUFACTURING COMPANY, 1925.)

Appellant, v. Carl R. SCHULTZ et al., as

Trustees of Louise Schultz et al., Respond. Appeal from a judgment, entered December

ents. 5, 1924, upon an order of the Appellate Divi

(Court of Appeals of New York. June 2, sion of the Supreme Court in the Third

1925.) Judicial Department (210 App. Div. 569, 206 N. Y. S. 550), reversing a judgment in favor Appeal from a judgment, entered July 12, of plaintiff entered upon a verdict directed 1924, upon an order of the Appellate Division

concur.

(148 N.E.) of the Supreme Court in the First Judicial , HISCOCK, C. J., and CARDOZO, MCDepartment (210 App. Div. 41, 205 N. Y. S. LAUGHLIN, CRANE, ANDREWS, and 170), reversing a judgment in favor of plain- LEHMAN, JJ., tiff entered upon the report of a referee and POUND, J., absent. directing a dismissal of the complaint. The action was to compel specific performance by the defendant trustees of an alleged oral agreement to renew a lease of certain prop

2 erty occupied by the plaintiff as a factory at Arthur L. WASHBURNE et al., Copartners Nos. 433-437 East Twenty-Second street and under the Firm Name of Washburne Engi. Nos. 430 436 East Twenty-Third street, in

neering Company, Respondents, v, PROPERthe city of New York, for a term of five years

TY OWNERS' CO-OPERATIVE ASSOCIA

TION OF MIDDLESEX COUNTY, Inc., Apcommencing May 1, 1921.

pellant. Robert S. Johnstone and Ellery 0. Anderson, both of New York City, for appellant.

(Court of Appeals of New York. June 2, Henry T. Hall, of New York City, for re

1925.) spondents.

Appeal from a judgment of the Appellate

Division of the Supreme Court in the Second PER CURIAM. Judgment affirmed, with Judicial Department (209 App. Div. 365, 205 costs.

N. Y. S. 36), entered October 16, 1924, modifyHISCOCK, C. J., and CARDOZO, Mc- ing, and affirming as modified, a judgment in

favor of plaintiffs entered upon the report of LAUGHLIN, CRANE, ANDREWS, and

a referee. The action was to recover damLEHMAN, JJ., concur. POUND, J., absent.

ages for alleged breach of a written contract under which plaintiffs agreed with defend ant corporation to lay out and grade certain streets and parts of streets on a tract of land

owned by defendant. The complaint alleged 1

that defendant had prevented performance Moses BEAL, Respondent, V. STANDARD of the contract by plaintiffs. The answer set OIL COMPANY of New York et al., up as a defense and counterclaim that the Appellants.

plaintiffs bad failed to do the work in ac

cordance with the contract and that they at (Court of Appeals of New York. June 2, 1925.)

no time intended to complete the contract. Appeal, by permission, from a judgment of

Maurice Rose, of New York City, for apthe Appellate Division of the Supreme Court

pellant.

Frank R. Greene, of New York City, for in the Second Judicial Department (212 App.

respondents. Div. 822, 207 N. Y. S. 810), entered January 16, 1925, unanimously affirming a judgment PER CURIAM. Judgment affirmed, with in favor of plaintiff entered upon a verdict costs. in an action to recover for personal injuries alleged to have been sustained by plaintiff

HISCOCK, C. J., and CARDOZO, POUND, through the negligence of defendants. Plain MCLAUGHLIN, CRANE, ANDREWS, and tiff was injured by an explosion which oc- LEHMAN, JI., concur. curred when he lowered a lighted lantern into a well, and sought to recover damages from defendants on the ground that the explosion

3 was caused by gasoline which had percolated through the ground from a leaky gasoline Bartholomew... HOPKINS et al., Appellants,

v. Hattie M. HAWKINS et al., pump owned by defendant Standard Oil Com

Respondents. pany of New York and installed by defendant Oram.

(Court of Appeals of New York. June 2,

1925.) John C. R. Taylor, of Middletown, for appellant Standard Oil Company of New York. Appeal, by permission, from a judgment of Percy V. D. Gott, of Goshen, for appellant the Appellate Division of the Supreme Court

in the Fourth Judicial Department (211 App. Elbert N. Oakes, of Middletown, for re

Div. 833, 206 N. Y. S. 917), entered December spondent.

5, 1924, unanimously affirming a judgment in

favor of defendants, entered upon an order PER CURIAM. Judgment affirmed, with of Special Term granting a motion to discosts.

miss the complaint on the ground that it

Oram.

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