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(148 N.E.)

as trustees for the plaintiff ; that they be re

quired to account for the rents and profits In the matter of the Application of William C. thereof and convey the said property to the WHISH, Chairman and Legislative Repre- plaintiff upon payment of the purchase price, sentative of the New York State Legislative less the amount of rents received. Board, Brotherhood of Locomotive Engineers, et al., Appellants, V. PUBLIC SERVICE

Daniel J. Dugan and Isadore Bookstein, COMMISSION of the State of New York, both of Albany, and W. Joseph Shanley, of Respondent.

Troy, for appellant.

John T. Norton and George C. Lecompte, (Court of Appeals of New York. June 9, 1925.) | both of Troy, for respondents.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in PER CURIAM. Judgment affirmed, with the Third Judicial Department (205 App. Div. costs. 756, 200 N. Y. S. 282), entered June 19, 1923, which confirmed a determination of the Pub

HISCOCK, C. J., and CARDOZO, POUND, lic Service Commission of the State of New McLAUGHLIN, CRANE, ANDREWS, and York refusing to issue an order requiring lo- LEHMAN, JJ., concur. comotive engines used within the state to be equipped with vestibuled cabs pursuant to the provisions of section 77 of the Railroad

3 Law, as amended by chapter 649 of the Laws of 1918, upon the ground of lack of jurisdic

Catherine V. TROWBRIDGE, Appellant, v. tion, the commission holding that the law

Katie OEHMSEN, Respondent. cannot be enforced by reason of the fact that (Court of Appeals of New York. June 9, 1925.) Congress has asserted authority over the equipment of locomotives employed in inter

Motion to dismiss an appeal from a judgstate commerce, thus occupying the field to ment entered May 8, 1924, upon an order of the exclusion of the state.

the Appellate Division of the Supreme Court

in the Second Judicial Department (207 App. William E. Fitzsimmons, of Albany, for ap- Div. 740, 202 N. Y. S. 833), reversing a judgpellants, Russell B. Burnside, of New York City, sion of the court at a Trial Term without a

ment in favor of plaintiff entered upon a deciand Charles G. Blakeslee, of Binghamton, for jury and directing judgment in favor of derespondent.

fendant. The motion was made upon the

ground of failure to file the required underPER CURIAM. Order affirmed, with costs, taking and serve copies of the case and briefs. on opinion of Hinman, J., below. See, also, Act June 7, 1924 (43 Stat. 659), and B. & 0.

William Baruch, of Port Chester, for the R. R. Co. v. Groeger, 266 U. S. 521, 530, 45

motion. S. Ct. 169, 69 L. Ed. 419.

Benjamin I. Taylor, of New York City,

opposed. HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, ANDREWS, and

PER CURIAM. Motion granted, unless LEHMAN, JJ., concur.

plaintiff within 10 days pays $10 costs of motion, in which case the motion is denied.

2 RAILWAY TERMINAL WAREHOUSE &

4 STORAGE COMPANY, Appellant, v. Albert S. HECHT, Respondent, V. FRED T. James GEARY et al., Respondents.

LEY & CO., Inc., Appellant, impleaded

with Others. (Court of Appeals of New York. June 9, 1925.)

Appeal from a judgment, entered March 9, (Court of Appeals of New York. June 9, 1925.) 1925, upon an order of the Appellate Division Motion to dismiss an appeal from a judgof the Supreme Court in the Third Judicial ment of the Appellate Division of the SuDepartment (212 App. Div 95, 208 N. Y. S. preme Court in the First Judicial Depart417), reversing a judgment in favor of plain-ment - App. Div. —, 208 N. Y. S. 875), entiff entered upon a decision of the court at a tered March 27, 1925, modifying, and affirmTrial Term without a jury and directing a ing as modified, a judgment in favor of plaindismissal of the complaint. The action was tiff entered upon a decision of the court on in equity to have it adjudged that defendants trial at Special Term. The motion was made had purchased and held certain real property upon the ground that the decision of the

trial court was unanimously affirmed, except as modified by the striking out of an extra

2

(240 N. Y. 681) allowance,

RUSSELL et al. v. NOSTRAND ATHLETIC

CLUB, Inc. William H. Freedman, of New York City, for the motion.

(Court of Appeals of New York. June 12, Clifton P. Williamson and Edward W.

1925.) Bourne, both of New York City, opposed.

Nuisance Om35—Judgment restraining exhibi.

tions held too broad. PER CURIAM. Motion denied, with $10

Where complaint was directed against boxcosts.

ing matches which attracted a noisy boisterous crowd, and evidence related to such matter, a judgment restraining defendant from holding

any gymnastic or athletic entertainment or ex1

hibition, or public exhibition or show, or any In the Matter of the Application of the CITY similar activity in the nighttime, was too broad OF NEW YORK, Relative to Acquiring Title and must be modified. to Seventh Avenue, etc., in the Borough of

Appeal from Supreme Court, Appellate Manhattan. In the Matter of the Application

Division, Second Department. of Margaretta K. WELSH et al., as Executors of and Trustees under the Will of Hen Injunction by Josiah J. Russell and others ry Welsh, Deceased, Respondents and Appel- | against the Nostrand Athletic Club, Inc. lants; Comptroller of the City of New York | Judgment for plaintiffs (212 App. Div. 543, 209 et al., Appellants and Respondents.

N. Y. S. 76), and defendant appeals. Modi(Court of Appeals of New York. June 12,

fied and affirmed. 1925.)

See, also, 209 App. Div. 900, 205 N. Y. S.

950; 210 N. Y. S. 916. Oross-appeals, by permission, from an order of the Appellate Division of the Supreme

John J. Fitzgerald, of New York City, and Court in the First Judicial Department (210 Abraham Lehman, of Brooklyn, for appel

lant. App. Div. 879, 206 N. Y. S. 972), entered November 21, 1924, which unanimously af

George W. Tucker, and Orville C. Sanborn, firmed an order of Special Term, directing both of New York City, for respondents. and authorizing the comptroller of the city of

PER CURIAM. There is evidence to susNew York to pay forth with unto the surviv- tain the new findings made by the Appeling executor and trustee under the will of late Division, that the boxing matches conHenry Welsh, deceased, the interest from ducted by the defendant at night constituted July 24, 1919, the date of the report of the a nuisance in this residential section of the commissioners of estimate, to April 29, 1921: city, where the homes had been built and the date of the confirmation of said report occupied long before the arena as to damage parcel No. 249 on the total sum structed. With the weight of the evidence, of $131,172.02, together with lawful interest we have nothing to do. The judgment, howon said amount from April 29, 1921, down to

ever, is too broad. The only complaint is the date of payment, and denied the motion against the boxing matches, which attract of the petitioner for an order directing pay the noisy boisterous crowd; the evidence ment of interest on the award from the date only relates to these. The judgment, how of confirmation of the report of commissioners of estimate to the date of payment less ever, restrains the defendant from holding certain lawful deductions together with in- or exhibition or public exhibition or show or

"any gymnastic or athletic entertainment terest thereon.

any other similar activity in the nighttime." George P. Nicholson, Corp. Counsel, of New This would prevent any theatrical performYork City (Joel J. Squier and William B. R. ance or any other exhibition, no matter how Faber, both of New York City, of counsel), quiet and peaceful the performance and the for appellants and respondents, Comptroller spectators might be. of City of New York and others.

The judgment must be modified so as to Edwin W. Willcox, of New York City, for restrain any prize fight, boxing exhibition, respondents and appellants executors and boxing contest, wrestling contest, or any othtrustees.

er similar activity in the nighttime; plain

tiffs to have the right to apply at the foot of PER CURIAM. Order affirmed, without this judgment for further relief as to any costs to either party.

exhibition claimed to be an activity similar HISCOCK, C. J., and CARDOZO, POUND, to those specifically restrained. MCLAUGHLIN, CRANE, ANDREWS, and As thus modified, the judgment should be LEHMAN, JJ., concur.

affirmed, without costs.

was

con

(148 N.E.)
HISCOCK, C. J., and CARDOZO, Mc George P. Nicholson, Corp. Counsel, of New
LAUGHLIN, CRANE, ANDREWS, and York City (Joel J. Squier, of New York City,
LEHMAN, JJ., concur.

of counsel), for the motion.
POUND, J., absent.

PER CURIAM. Motion granted, and apJudgment accordingly.

peal dismissed, with costs, and $10 costs of motion,

. .

3 RUSSIAN REINSURANCE CO. et al. v.

(240 N. Y. 684) STODDARD, Superintendent of in

BOWLBY et al. v. McQUAIL.
surance, et al.
(Court of Appeals of New York. June 12,

(Court of Appeals of New York. July 15,

1925.)
1925.)
On motion for reargument. Denied.

1. Appeal and error m861-On appeal by per. See 240 N. Y. 149, 147 N. E. 703,

mission from intermediate order, Court of Appeals limited to consideration of questions

certified. PER CURIAM. We have decided that considerations of justice and fairness to the mediate order of the Appellate Division, under

On an appeal by permission from an interdefendant should lead the courts of this state Civil Practice Act, $ 588, subd. 3, Court of Apto refuse jurisdiction of the present action peals is limited to consideration of the questo compel the defendant trust company to s tions certified. deliver securities and property to the plaintiff. We have not decided that equitable con- 2. Appeal and error w861-Appeal dismissed, siderations ought not to lead the courts to

where answers to questions certified will not

be decisive of appeal.
take jurisdiction of some other action in
which a measure of relief might be granted

On appeal from intermediate order of Apwhich would be fair to the plaintiff or its pellate Division on questions certified, where

answers to questions certified will not be decistockholders and yet afford adequate protec- sive of appeal, or cannot be answered at all, or tion to the defendant.

require determination by Court of Appeals of The motion for a reargument should be a question of fact, appeal will be dismissed. denied, without costs, and without prejudice

Lehman, J., dissenting.
to the commencement of a new action for
such relief.

Appeal from Supreme Court, Appellate

Division, First Department. 2

Action by Foster R. Bowlby, and others, In the matter of the Application of the CITY as executors of George M. Bowlby, deceased, OF NEW YORK, Respondent, Relative to against John E. McQuail. From an order of Acquiring Title to Lands Required for the the Appellate Division of the Supreme Court Opening of EIGHTEENTH AVENUE in the (211 App. Div. 869, 207 N. Y, S. 813), affirmBorough of Queens. Anna A. Scheurer, Ap- ing an order of the Special Term, denying a pellant.

motion to strike out the answer and for judg(Court of Appeals of New York. June 12,

ment on the pleadings, plaintiffs appeal by 1925.)

permission on questions certified. Appeal

dismissed.
Motion to dismiss an appeal from an order
of the Appellate Division of the Supreme

Appeal, by permission, from order
Court in the Second Judicial Department which affirmed an order of Special Term,
(207 App. Div. 282, 202 N. Y. S. 167), entered denying a motion to strike out the answer
December 7, 1923, which reversed an order and for judgment on the pleadings. The fol.
of Special Term denying a motion to confirm lowing questions were certified:
the report of commissioners of estimate and (1) Defendant's "separate defense" seeks to
assessment and confirmed said report. The rescind an agreement under the terms of
motion was made upon the grounds that the which defendant gave the deceased plaintiff
decision of the Appellate Division was un- the promissory note sued upon in the com-
animous and that permission to appeal had plaint. Can a defendant maintain and es-
not been obtained, that no question of law tablish the defense of rescission of an agree.
was involved, and that the appeal had not ment by reason of false representation, in a
been prosecuted within the time prescribed case where he gave no notice of an election
by section 996 of the Charter of the City of to rescind, and make no offer of restoration

prior to his answer and until the expira

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tion of 14 months after the fraud alleged as, settlement and any note given pursuant to the ground of the defense was discovered, and the terms of said agreement is illegal, with. then only in his amended answer in a pending out consideration, and void, in an action action for the purpose of enabling him to al- pending in another court to recover on a lege a defense sufficient in law after a deci- promissory note so given, between the same sion by the court to the effect that such de- parties as in the action settled, can a defend. fense without such an allegation was insuffi- ant plead and maintain a defense to an ac cient?

tion to recover on a promissory note given (2) Can a defendant maintain a defense of in settlement of a prior pending action, to rescission of an agreement made between the the effect that the agreement settling the forparties to an action, if such defendant has mer pending action in another court, that not tendered and offered to restore all that said former action settled, was based upon he received from the plaintiff as a considera- a contract against public policy, illegal and tion for the agreement at the time of the void? making of said agreement which he attempts (8) Is it against public policy for a stockto rescind?

holder of a corporation, who is also an offi(3) Can a defendant maintain a defense cer of the corporation, to receive compensaof rescission of an agreement made between tion for his services, in obtaining three other the parties to an action, if it is impossible to stockholders to act with him, and who conplace and restore the other party to the ac- stitute themselves a committee to obtain suffition and agreement to the same position as cient stock from other stockholders of said the said other party to the agreement was on corporation, to perform a contract made by the day and at the time they entered into the such committee, to sell and deliver to a puragreement, which agreement the defendant chaser more than 70 per cent. of the stock seeks to rescind on the ground that he was of such corporation, such compensation for induced to make such an agreement because said services being paid for by the purchaser of the false representations of the said other of the stock? party?

(9) Is the settlement of a pending action (4) Can a defendant m tain a defense by an agreement between the parties, and an for the rescission of an agreement based up-order made by the court in the action, and on an alleged false statement, which alleged entered pursuant to said agreement, disconstatement was a promise by the other party tinuing and terminating the action, res adto do something for the defendant in the fu- judicata and to the same extent as a judg. ture, to induce the defendant to enter into ment in the action determining the issues? the agreement sought to be reseinded, where (10) Can an agreement of settlement bethere was no time agreed upon in which the tween the parties to a pending action, in the other party was to perform such alleged action, pursuant to which an order is made promise, without having first made a demand by the court in the action discontinuing and on the other party for performance, and terminating the action, be attacked in anothplaced some limitation of time during which er action in another court between the same the other party was to perform, and without parties to enforce said settlement agreement? alleging such demand in said defense?

(11) Can a promise by one party to an (5) Does the defendant sufficiently allege agreement to do some act in the future for fraud in said “first defense” to maintain the the other party, which promise induced the defense of rescission?

other party to execute the agreement, be (6) Does the defendant sufficiently allege made the basis of a defense of fraud to set the defense of fraud as a ground for rescind- aside the agreement executed, unaccompanied ing a written agreement between the parties by some special circumstance entailing unto permit evidence to be introduced on be- usual hardship, and where an action for dam. half of the defendant to establish such de- ages would not give the pa rty relying on the fense, when such evidence would tend to.vary

promise adequate relief? and contradict the terms of the said written

(12) Is the "separate defense,” together agreement?

with the undisputed facts in the record, suffi. (7) Where the defendant pleads that an

cient in law to constitute a defense ? agreement of settlement of a prior action be- the undisputed facts in the record, sufficient

(13) Is the "second defense,” together with tween the same parties as this action was

in law to constitute a defense? without consideration, because the contract sued upon in the prior action was against Theodore T. Baylor, of New York City, public policy, that the agreement of settle for appellants. ment of said pending action is without any Carroll Blakely Low and Walter Carroll consideration, and that such agreement of Low, both of New York City, for respondent.

(148 N.E.) PER CURIAM. [1] The plaintiffs moved tiff's assignor. The defense was that the under Civil Practice Rules 103, 104, 109, 112, deposit was made as collateral security for 113, “and generally," to strike out an entire the payment of a note made by the president answer and for summary judgment. The of the Canadian bank with the knowledge motion was denied, and on appeal to the Ap- and for the benefit of said bank which was pellate Division the order was affirmed, per- the undisclosed principal in the transaction mission given to appeal to this court, and and received the proceeds of the loan. certifying thirteen questions.

John S. Leonard and Louis L. Thrasher, The order which we are asked to review both of Jamestown, for appellant. is an intermediate one. The only power this Lee L. Ottaway and McKinley L. Phillips, court has to review. such an order is by vir- both of Jamestown, for respondent. tue of the permission granted by the Appellate Division on the questions certified. Civ.

PER CURIAM. Judgment affirmed, with Prac. Act. § 588, subd. 3. The questions costs. which are certified limit the power of this court on review to answer such questions POUND, MCLAUGHLIN, CRANE, and and no others. Grannan v. Westchester Rac- LEHMAN, JJ., concur. ing Association, 153 N. Y. 449, 47 N. E. 896. HISCOCK, C. J., and CARDOZO and AN

[2] If the answers to the questions certi- DREWS, JJ., dissent. fied will not be decisive of the appeal, or if they are in such form that they cannot be answered at all, or if, in order to answer

2 them, this court must determine a question of fact, then the appeal will not be enter- PEOPLE of the State of New York ex rel. tained. Schieffelin v. Hylan, 229 N. Y. 633,

FALKENAU & HAMERSHLAG, Inc., Appel129 N. E. 937. This is precisely the situa

lant, v. William E. WALSH et al., Constitut.

ing the Board of Appeals of the City of New tion here. The answers to the questions cer

York, Respondents, tified will not be decisive of the appeal. Some of them cannot be answered at all, and (Court of Appeals of New York. July 15, some, in order to answer them, require this

1925.) court to determine a question of fact, which the court has no power to do.

Appeal from an order of the Appellate Di

vision of the Supreme Court in the First JuThe appeal, therefore, must be dismissed, with costs.

dicial Department App. Div. 209 N. Y. S. 900), entered May 1, 1925, which re

versed an order of Special Term sustaining HISCOCK, C. J., and POUND, MCLAUGH

a writ of certiorari and annulling a deterLIN, CRANE, and ANDREWS, JJ., concur.

mination of the board of appeals of the city CARDOZO, J., not voting.

of New York refusing the relator a permit LEHMAN, J., dissenting.

to build a garage on the easterly side of Je

rome avenue, north of One Hundred and Appeal dismissed.

Eighty-Third street in the borough of the Bronx. It was contended that the decision of the board of appeals denying a permit to the relator after granting permits to other

property owners to erect garages in the same Archibald B. BARKER, Appellant, v. LIBER- vicinity was a clear abuse of discretion. TY BANK OF JAMESTOWN, N. Y., Respondent.

Horace S. Manges and Abram I. Elkus,

both of New York City, for appellant. (Court of Appeals of New York. July 15,

George P. Nicholson, Corp. Counsel, of New 1925.)

York City (John F. O'Brien, Willard S. Allen, Appeal from a judgment of the Appellate and William T. Kennedy, all of New York Division of the Supreme Court in the Fourth City, of counsel), for respondents. Judicial Department App. Div.

- , 208 N. Y. S. 831), entered March 18, 1925, affirm PER CURIAM. Order affirmed, with costs. ing a judgment in favor of defendant entered upon the report of a referee. The action was HISCOCK, C. J., and CARDOZO, POUND, to recover a balance unpaid of a deposit made MCLAUGHLIN, CRANE, ANDREWS, and with defendant by a Canadian bank, plain- LEHMAN, JJ., concur.

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