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amended July 30, 1920. The civil service 1

commission refused to certify salaries at the PEOPLE of the State of New York ex rel. rates fixed on the ground that they were in Morris J. WERNER, Appellant, v. William excess of the maximum fixed for the grade E, WALSH, et al., Constituting the Board of of position under its rules. The petitioners Appeals of the City of New York, Respond- contended that the Lockwood-Donohue Law ents,

(Laws 1920, c. 680) took away from the civil (Court of Appeals of New York, July 15,

service commission the power to establish 1925.)

grades for the employees of the board of

education, and that the fixing of respondents' Appeal from an order of the Appellate Di. salaries in excess of the civil service commisvision of the Supreme Court in the First Ju- sion's grade by the board of education was dicial Department (212 App. Div. 635, 209 not a promotion over which the municipal N. Y. S. 454), entered May 1, 1925, which re- commission had jurisdiction. The Appellate versed an order of Special Term sustaining a Division held that the statute made no change writ of certiorari and annulling a determina in the Civil Service Law or in respect to the tion of the board of appeals of the city of jurisdiction of the civil service commission. New York refusing the relator a permit to

John E. O'Brien and Robert L. Luce, both build a garage on the easterly side of Jerome

of New York City, for appellants. avenue between One Hundred and EightyThird and One Hundred and Eighty-Fourth

George P. Nicholson, Corp. Counsel, of New streets in the borough of the Bronx. It was dict, and Thomas W. A. Crowe, all of New

York City (John F. O'Brien, Elliot S. Bene contended that the decision of the board of appeals denying a permit to the relator after York City, of counsel), for respondents. granting permits to other property owners

PER CURIAM. Order affirmed, with costs, to erect garages in the same vicinity was a clear abuse of discretion.

on opinion of McAvoy, J., below. Henry S. Miller, of New York City, for ap HISCOCK, C. J., and CARDOZO, Mepellant.

LAUGHLIN, CRANE, ANDREWS, and LEHGeorge P. Nicholson, Corp. Counsel, of New MAN, JJ., concur. York City (John F. O'Brien, Willard S. Allen,

POUND, J., not voting. and William T. Kennedy, all of New York City, of counsel), for respondents.

concur.

PER CURIAM. Order affirmed, with costs.

3 HISCOCK, C. J., and CARDOZO,

Catherine M. SMITH, as Administratrix of the POUND,

Estate of John C. Smith, Deceased, Respond. MCLAUGHLIN, CRANE, ANDREWS, and

ent, v. George H. EARLE, Jr., et al., DeLEHMAN, JJ.,

fendants, and Walter J. Salmon, Appellant. (Court of Appeals of New York. July 15,

1925.) 2

Appeal, by permission, from an order of the In the matter of the Application of Joseph M. Appellate Division of the Supreme Court in

RYAN et al., Appellants, v. Abraham KAP- the First Judicial Department (209 App. Div. LAN et al., Composing the Municipal Civil 503, 205 N. Y. S. 245), entered June 6, 1924, Service Commission of the City of New York, which reversed an order of Special Term Respondents.

granting a motion for a dismissal of the com

plaint as to defendant, appellant herein, un(Court of Appeals of New York. July 15, 1925.)

der rule 106 of the Rules of Civil Practice.

The action was to recover for the death of Appeal from an order of the Appellate Di- plaintiff's intestate, alleged to have been vision of the Supreme Court in the First Ju- caused by the wrongful act, neglect, and dedicial Department (213 App. Div. 131, 209 N. fault of the defendants, and each of them, Y. S. 446), entered May 1, 1925, which revers- resulting in the collapse of the Strathmore ed an order of Special Term granting a mo- Building, located on the northeast corner of tion for a peremptory order of mandamus to Broadway and Fifty-Second street, New York compel the municipal civil service commission City, while intestate was lawfully at work of the city of New York to certify the salaries therein and defendants were engaged in conof the petitioners and other employees of the verting the structure from a tenement to a board of education of the city of New York nontenement building. The motion was made at the rates fixed in the schedule adopted by upon the ground tha it appeared upon the said board of education June 16, 1920, and face of the complaint that defendant, appel

(148 N.E.) lant, was neither the owner nor the lessee of Frederick J. Groehl, of New York City, and the Strathmore Building, but that liability Joseph Lonardo, of Long Island City, for apis attempted to be fastened upon him on the pellant. ground that the lessee, the Strathmore Leas Charles R. Weeks, Dist. Atty., of Mineola ing Company, was a dummy to enable him as (Charles I. Woods, of Mineola, of coursel), a majority stockholder and the true owner to for the People. carry on the work. The Appellate Division held that the complaint went further and al PER CURIAM. Judgment of conviction leged that the work was being done under the affirmed. direction and control of defendant, appellant, and that he was guilty of the negligence HISCOCK, C. J., and CARDOZO, POUND, which caused the building to collapse. The MCLAUGHLIN, CRANE, ANDREWS, and following question was certified:

LEHMAN, JJ., concur. “Does the complaint herein state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant Wal. ter J. Salmon ?"

2 Walter H. Bond, of New York City, for ap

Tillie JACOBSTEIN, Respondent, v. Israel

JACOBSTEIN, Appellant. pellant.

Ralph Gillette and Charles P. Carney, both (Court of Appeals of New York. July 15, of New York City, for respondent.

1925.) PER CURIAM. Order affirmed, with costs, Appeal from a judgment of the Appellate and question certified answered in the af. Division of the Supreme Court in the Fourth firmative.

Judicial Department (209 App. Div. 816, 204

N. Y. S. 918), entered June 12, 1924, affirming HISCOCK, C. J., and CARDOZO, MC- a judgment in favor of plaintiff entered upon LAUGHLIN, CRANE, ANDREWS, and LEH. a decision of the court on trial at an Equity MAN, JJ., concur.

Term in an action, wife against husband, for POUND, J., not voting.

a separation on the grounds of cruel and inhuman treatment and abandonment.

P. Chamberlain, of Rochester, for appellant.

John J. McInerney, of Rochester, for rePEOPLE of the State of New York, Respond- spondent. ent, v. Ambrose ROSS, Appellant.

PER CURIAM. Judgment affirmed with (Court of Appeals of New York. July 15,

costs. 1925.) Appeal from a judgment of the Nassau HISCOCK, C. J., and CARDOZO, MCCounty Court, rendered October 10, 1924, up- LAUGHLIN, CRANE, ANDREWS, and LEHon a verdict convicting the defendant of the MAN, JJ., concur. crime of murder in the first degree

POUND, J., not voting.

Fourth street in the city of New York, plain

tiff received the injuries complained of as the Thomas G. ABBOTT, Appellant, V. RICH result of a collision with a motorcycle which MOND COUNTY COUNTRY CLUB, Re was being driven by defendant, appellant, a spondent.

police officer, southerly on the east or wrong

side of the road. It appeared that defendant (Court of Appeals of New York. July 15, 1925.)

approached behind a wagon and inclined to

the left to avoid striking it when it turned to Appeal from a judgment, entered February the east to enter One Hundred and Forty2, 1925, upon an order of the Appellate Divi- Fourth street. sion of the Supreme Court in the Second Ju

George P. Nicholson, Corp. Counsel, of New dicial Department (211 App. Div. 231, 207 N. York City (John F. O'Brien, Willard S. Allen, Y. S. 183), reversing a judgment in favor of and Charles C. Marrin, all of New York City, plaintiff entered upon a verdict and directing of counsel), for appellant. a dismissal of the complaint in an action to

William J. Hogan, of White Plains, and recover for personal injuries alleged to have John Ambrose Goodwin, of New York City, been sustained by plaintiff through the neg: for respondent. ligence of defendant. Plaintiff, while a guest of a member of defendant, received the in

PER CURIAM. Judgment affirmed, with juries complained of through a fall while

costs. going out of the club locker room. The testimony showed that the floor was of concrete,

HISCOCK, C. J., and CARDOZO, Mcwith a smooth finish, stained and covered LAUGHLIN, CRANE, ANDREWS, and LEHwith a thin coating of linseed oil and was MAN, JJ., concur. somewhat slippery. There was some evidence

POUND, J., not voting. that others had fallen at the same spot. The Appellate Division held that the condition described was not such as to charge defendant with negligence. Don R. Almy, of New York City, for appel.

3 lant.

Edward C. SUFFERN, Appellant, v. Kaufman George F. Hickey and William Butler, both

MANDELL et al., Respondents. of New York City, for respondent.

(Court of Appeals of New York. July 15,

1925.) PER CURIAM. Judgment affirmed, with costs.

Appeal from a judgment, entered March 13,

1925, upon an order of the Appellate Division HISCOCK, C. J., and CARDOZO, Mc of the Supreme Court in the First Judicial LAUGHLIN, CRANE, ANDREWS, and LEH. Department (212 App. Div. 1, 208 N. Y. S. 275), MAN, JJ., concur.

reversing a judgment in favor of plaintiff POUND, J., not voting.

entered upon a decision of the court at a Trial Term without a jury, and directing judgment in favor of defendants. Plaintiff and defendants entered into a contract

whereby the plaintiff's business became a de2

partment in that of defendants', the plaintiff Louis LAVINO, Respondent, v. John OCHSEN- agreeing to transfer his accounts and orders HIRT, Appellant, Impleaded with An to defendants in consideration of their agree. other.

ment to pay to him a percentage of the net

profits. Thereafter plaintiff commenced an (Court of Appeals of New York. July 15, 1925.)

action and recovered judgment against a

third party for breach of contract to deliver Appeal from a judgment of the Appellate merchandise. The controversy here arises Division of the Supreme Court in the First from a dispute as to whether plaintiff or deJudicial Department (211 App. Div. 848, 207 fendants were entitled to the amount collectN. Y. S. 866), entered March 26, 1925, modify- ed on the judgment. ing, and affirming as modified, a judgment in Chauncey E. Treadwell, of New York City, favor of plaintiff entered upon a verdict in an for appellant. action to recover for personal injuries alleged Adolph Feldblum and Aaron William Levy, to have been sustained through the negligence both of New York City, for respondents. of the defendant. The complaint alleged that while riding a motorcycle northerly on Mott PER CURIAM. Judgment affirmed, with avenue at about One Hundred and Forty-! costs.

(148 N.E.) HISCOCK, C. J., and CARDOZO, POUND, | plaintiff for the full amount of the bond and MCLAUGHLAN, CRANE, ANDREWS, and mortgage upon new findings. LEHMAN, JJ., concur.

Frederick P. Close, of White Plains, for ap pellant.

William L. Rumsey, of White Plains, and Charles H. Banks, of Mt. Kisco, for respond

ent. In the matter of the Application of ANTHONY MOORS, Appellant, for an Order of Manda

PER CURIAM. Judgment affirmed, with mus v. Charles L. CRAIG, as Comptroller of

costs. the City of New York, et al., Respondents. (Court of Appeals of New York. July 15, HISCOCK, C. J., and CARDOZO, Mc1925.)

LAUGHLIN, CRANE, ANDREWS, and LEHAppeal from an order of the Appellate Di- MAN, JJ., concur. vision of the Supreme Court in the Second

POUND, J., not voting. Judicial Department (211 App. Div. 813, 206 N. Y. S. 938), entered December 12, 1924, which affirmed an order of Special Term denying a motion for an order of mandamus to

3 compel the reinstatement of the petitioner in PEOPLE of the State of New York, Respondthe position of deputy receiver of taxes in the ont, v. John DURKIN, Appellant. finance department of the city of New York,

(Court of Appeals of New York, July 15, from which position he had been removed,

1925.) after a hearing on charges of neglect of duty in withholding from the comptroller informa Appeal from a judgment of the Bronx tion regarding an investigation by the Queens County Court rendered October 1, 1924, upon county grand jury of the conduct of the a verdict convicting the defendant of the Queens office of the receiver of taxes in June, crime of murder in the first degree. 1922.

Arthur B. Kelly, of New York City, for apGeorge F. Hickey, of New York City, for pellant. appellant.

John E. McGeehan, Dist. Atty., George B. George P. Nicholson, Corp. Counsel, of New De Luca and Herman J. Fliederblum, all of York City (John F. O'Brien, Elliot S. Bene- New York City, for the People. dict, and Robert J. Culhane, all of New York City, of counsel), for respondents.

PER CURIAM. Judgment of conviction

affirmed. PER CURIAM. Order affirmed, with costs.

HISCOCK, C. J., and CARDOZO, POUND, HISCOCK, C. J., and McLAUGHLIN, MCLAUGHLIN, CRANE, ANDREWS, and CRANE, ANDREWS, and LEHMAN, JJ., con- LEHMAN, JJ., concur. cur.

CARDOZO and POUND, JJ., not voting.

Anna L. BLAKESLEE, Appellant, v. Florence 2

T. NELSON, as Executrix of Robert M. Nancy E. HUNT, Respondent, v. Rebecca

Nelson, Deceased, Respondent.
WALL, Appellant.

(Court of Appeals of New York. July 15, (Court of Appeals of New York. July 15,

1925,) 1925.)

Appeal from a judgment, entered January Appeal from a judgment, entered December 22, 1925, upon an order of the Appellate Divi. 31, 1924, upon an order of the Appellate Di-sion of the Supreme Court in the Third Juvision of the Supreme Court in the Second dicial Department (212 App. Div. 219, 207 N. Judicial Department (211 App. Div. 856, 206 Y. S. 676), reversing an interlocutory judg. N. Y. S. 869), reversing a judgment of Spe- ment in favor of plaintiff entered upon a cial Term in an action to foreclose a pur- decision of the court at Special Term upon chase-money mortgage on real property, the submission of the within cause upon the which reduced the amount of the bond and minutes of trial at a Trial Term without a mortgage by allowing a credit for a deficiency jury before a justice, since retired, and diof acreage in the farm sold, and directing recting a dismissal of the complaint. The acjudgment of foreclosure and sale in favor of tion was to compel specific performance of

an alleged contract to convey real property. , the defendants from interfering with certain Plaintiff contended that certain letters and machines owned by the plaintiffs and leased telegrams that passed between plaintiff's to proprietors of stores and other places of agent and defendant's testator constituted business. Defendants contended that the an offer and acceptance.

machines were gambling devices and subject William E. Woollard and Louis J. Rezzemi- to seizure by the police. ni, both of Albany, for appellant.

John P. Carroll, of Brooklyn, for appelA. Page Smith, of Albany, for respondent. / lants.

George P. Nicholson, Corp. Counsel, of New PER CURIAM. Judgment affirmed, with York City (Charles J. Druhan, of New York costs.

City, of counsel), for respondents.

HISCOCK, C. J., and CARDOZO, POUND, PER CURIAM. Judgment affirmed, with MCLAUGHLIN, CRANE, ANDREWS, and costs. LEHMAN, JJ., concur.

HISCOCK, C. J., and CARDOZO, McLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur.

POUND, J., absent.

PEOPLE of the State of New York, Respond.

ent, v. Julius W. MILLER, Appellant. (Court of Appeals of New York. July 15,

3 1925.)

George NEUBERGER, Appellant, v. IMPORT. Appeal from a judgment of the Court of ERS AND TRADERS NATIONAL BANK General Sessions of the Peace in the County OF NEW YORK, Respondent. of New York, rendered November 10, 1024,

(Court of Appeals of New York. July 15, upon a verdict convicting the defendant of

1925.) the crime of murder in the first degree.

Appeal from a judgment of the Appellate John Caldwell Myers and John J. O'Con- Division of the Supreme Court in the Second nor, both of New York City, for appellant. Judicial Department (212 App. Div. 880, 208

Joab H. Banton, Dist. Atty., of New York N. Y. S. 907), entered February 26, 1925, City (Robert C. Taylor, of New York City, of affirming a judgment in favor of defendant counsel), for the People.

entered upon a dismissal of the complaint

by the court at a Trial Term without a jury. PER CURIAM. Judgment of conviction The action was for money bad and received affirmed.

for $9,130.93, on an alleged cause of action

claimed to have arisen out of the deposit CARDOZO, MCLAUGHLIN, CRANE, AN- with the defendant in 1911 of a check for DREWS, and LEHMAN, JJ., concur.

$13,609.46, drawn by the Long Island Rail. HISCOCK, C. J., not voting.

road Company to the order of the plaintiff POUND, J., absent.

(then an infant), indorsed in blank by his general guardian and delivered to one M. P. O'Connor, a depositor of defendant, and by

him indorsed and deposited with the defend2

ant, which collected the check and placed the Leo P. BYK et al., Doing Business under the proceeds to his credit and paid them out be. Name of Triangle Novelty Company, Appel-fore the commencement of this action and lants, v. Richard E. ENRIGHT, as Commis: before notice of any claim by plaintiff. sioner of Police of the City of New York, et al., Respondents.

Michael J. Joyce, of Brooklyn, for appel

lant. (Court of Appeals of New York. July 15, 1925.)

Myron T. Townsend, of New York City,

for respondent. Appeal from a judgment, entered May 16, 1925, upon an order of the Appellate Division PER CURIAM. Judgment affirmed, with of the Supreme Court in the Second Judicial | costs. Department (208 App. Div. 850, 204 N. Y. S. 897), reversing a judgment in favor of plain HISCOCK, C. J., and CARDOZO, Mc tiffs entered upon a decision of the court on LAUGHLIN, CRANE, ANDREWS, and trial at Special Term, and directing a dismiss- LEHMAN, JJ., concur. al of the complaint in an action to restrain POUND, J., absent.

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