tion of 14 months after the fraud alleged as, settlement and any note given pursuant to the ground of the defense was discovered, and then only in his amended answer in a pending action for the purpose of enabling him to allege a defense sufficient in law after a decision by the court to the effect that such defense without such an allegation was insufficient? (2) Can a defendant maintain a defense of rescission of an agreement made between the parties to an action, if such defendant has not tendered and offered to restore all that he received from the plaintiff as a consideration for the agreement at the time of the making of said agreement which he attempts to rescind? (3) Can a defendant maintain a defense of rescission of an agreement made between the parties to an action, if it is impossible to place and restore the other party to the action and agreement to the same position as the said other party to the agreement was on the day and at the time they entered into the agreement, which agreement the defendant seeks to rescind on the ground that he was induced to make such an agreement because of the false representations of the said other party? (4) Can a defendant maintain a defense for the rescission of an agreement based up on an alleged false statement, which alleged statement was a promise by the other party to do something for the defendant in the future, to induce the defendant to enter into the agreement sought to be rescinded, where there was no time agreed upon in which the other party was to perform such alleged promise, without having first made a demand on the other party for performance, and placed some limitation of time during which the other party was to perform, and without alleging such demand in said defense? (5) Does the defendant sufficiently allege fraud in said "first defense" to maintain the defense of rescission? (6) Does the defendant sufficiently allege the defense of fraud as a ground for rescinding a written agreement between the parties to permit evidence to be introduced on behalf of the defendant to establish such defense, when such evidence would tend to vary and contradict the terms of the said written agreement? (7) Where the defendant pleads that an agreement of settlement of a prior action be tween the same parties as this action was without consideration, because the contract sued upon in the prior action was against public policy, that the agreement of settle ment of said pending action is without any consideration, and that such agreement of the terms of said agreement is illegal, without consideration, and void, in an action pending in another court to recover on a promissory note so given, between the same parties as in the action settled, can a defendant plead and maintain a defense to an ac tion to recover on a promissory note given in settlement of a prior pending action, to the effect that the agreement settling the former pending action in another court, that said former action settled, was based upon a contract against public policy, illegal and void? (8) Is it against public policy for a stockholder of a corporation, who is also an officer of the corporation, to receive compensation for his services, in obtaining three other stockholders to act with him, and who constitute themselves a committee to obtain sufficient stock from other stockholders of said corporation, to perform a contract made by such committee, to sell and deliver to a purchaser more than 70 per cent. of the stock of such corporation, such compensation for said services being paid for by the purchaser of the stock? (9) Is the settlement of a pending action by an agreement between the parties, and an order made by the court in the action, and entered pursuant to said agreement, discontinuing and terminating the action, res adjudicata and to the same extent as a judg ment in the action determining the issues? (10) Can an agreement of settlement between the parties to a pending action, in the action, pursuant to which an order is made by the court in the action discontinuing and terminating the action, be attacked in another action in another court between the same parties to enforce said settlement agreement? (11) Can a promise by one party to an agreement to do some act in the future for the other party, which promise induced the other party to execute the agreement, be made the basis of a defense of fraud to set aside the agreement executed, unaccompanied by some special circumstance entailing unusual hardship, and where an action for damages would not give the party relying on the promise adequate relief? (12) Is the "separate defense," together with the undisputed facts in the record, sufficient in law to constitute a defense? the undisputed facts in the record, sufficient (13) Is the "second defense," together with in law to constitute a defense? Theodore T. Baylor, of New York City, for appellants. Carroll Blakely Low and Walter Carroll 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, both of Jamestown, for appellant. Lee L. Ottaway and McKinley L. Phillips, both of Jamestown, for respondent. PER CURIAM. Judgment affirmed, with costs. POUND, MCLAUGHLIN, CRANE, and LEHMAN, JJ., concur. HISCOCK, C. J., and CARDOZO and AN The order which we are asked to review is an intermediate one. The only power this court has to review. such an order is by virtue of the permission granted by the Appellate Division on the questions certified. Civ. Prac. Act. § 588, subd. 3. The questions which are certified limit the power of this court on review to answer such questions and no others. Grannan v. Westchester Racing Association, 153 N. Y. 449, 47 N. E. 896. [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 them, this court must determine a question of fact, then the appeal will not be entertained. Schieffelin v. Hylan, 229 N. Y. 633, 129 N. E. 937. This is precisely the situation here. The answers to the questions certified will not be decisive of the appeal. Some of them cannot be answered at all, and some, in order to answer them, require this court to determine a question of fact, which the court has no power to do. The appeal, therefore, must be dismissed, with costs. HISCOCK, C. J., and POUND, MCLAUGH- Archibald B. BARKER, Appellant, v. LIBER. (Court of Appeals of New York. July 15, 2 PEOPLE of the State of New York ex rel. FALKENAU & HAMERSHLAG, Inc., Appellant, v. William E. WALSH et al., Constituting the Board of Appeals of the City of New York, Respondents. (Court of Appeals of New York. July 15, 1925.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (App. Div. - 209 N. Y. S. 900), entered May 1, 1925, which reversed an order of Special Term sustaining a writ of certiorari and annulling a determination of the board of appeals of the city of New York refusing the relator a permit to build a garage on the easterly side of Jerome avenue, north of One Hundred and 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 vicinity was a clear abuse of discretion. Horace S. Manges and Abram I. Elkus, both of New York City, for appellant. George P. Nicholson, Corp. Counsel, of New York City (John F. O'Brien, Willard S. Allen, and William T. Kennedy, all of New York City, of counsel), for respondents. PER CURIAM. Order affirmed, with costs. Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (- App. Div. -, 208 N. Y. S. 831), entered March 18, 1925, affirming 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. PEOPLE of the State of New York ex rel. Morris J. WERNER, Appellant, v. William E. WALSH, et al., Constituting the Board of Appeals of the City of New York, Respondents. (Court of Appeals of New York. July 15, 1925.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (212 App. Div. 635, 209 N. Y. S. 454), entered May 1, 1925, which reversed an order of Special Term sustaining a writ of certiorari and annulling a determination of the board of appeals of the city of New York refusing the relator a permit to build a garage on the easterly side of Jerome avenue between One Hundred and EightyThird and One Hundred and Eighty-Fourth streets 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 vicinity was a clear abuse of discretion. Henry S. Miller, of New York City, for appellant. George P. Nicholson, Corp. Counsel, of New York City (John F. O'Brien, Willard S. Allen, and William T. Kennedy, all of New York City, of counsel), for respondents. PER CURIAM. Order affirmed, with costs. HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. 2 In the Matter of the Application of Joseph M. RYAN et al., Appellants, v. Abraham KAP. LAN et al., Composing the Municipal Civil Service Commission of the City of New York, Respondents. (Court of Appeals of New York. July 15, 1925.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (213 App. Div. 131, 209 N. Y. S. 446), entered May 1, 1925, which reversed an order of Special Term granting a motion for a peremptory order of mandamus to compel the municipal civil service commission of the city of New York to certify the salaries of the petitioners and other employees of the board of education of the city of New York at the rates fixed in the schedule adopted by said board of education June 16, 1920, and amended July 30, 1920. The civil service commission refused to certify salaries at the rates fixed on the ground that they were in excess of the maximum fixed for the grade of position under its rules. The petitioners contended that the Lockwood-Donohue Law (Laws 1920, c. 680) took away from the civil service commission the power to establish grades for the employees of the board of education, and that the fixing of respondents' salaries in excess of the civil service commission's grade by the board of education was not a promotion over which the municipal commission had jurisdiction. The Appellate Division held that the statute made no change in the Civil Service Law or in respect to the jurisdiction of the civil service commission. John E. O'Brien and Robert L. Luce, both of New York City, for appellants. George P. Nicholson, Corp. Counsel, of New York City (John F. O'Brien, Elliot S. Benedict, and Thomas W. A. Crowe, all of New York City, of counsel), for respondents. PER CURIAM. Order affirmed, with costs, on opinion of McAvoy, J., below. HISCOCK, C. J., and CARDOZO, McLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. POUND, J., not voting. 3 Catherine M. SMITH, as Administratrix of the Estate of John C. Smith, Deceased, Respondent, v. George H. EARLE, Jr., et al., Defendants, and Walter J. Salmon, Appellant. (Court of Appeals of New York. July 15, 1925.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (209 App. Div. 503, 205 N. Y. S. 245), entered June 6, 1924, which reversed an order of Special Term granting a motion for a dismissal of the complaint as to defendant, appellant herein, under rule 106 of the Rules of Civil Practice. The action was to recover for the death of plaintiff's intestate, alleged to have been caused by the wrongful act, neglect, and default of the defendants, and each of them, resulting in the collapse of the Strathmore Building, located on the northeast corner of Broadway and Fifty-Second street, New York City, while intestate was lawfully at work therein and defendants were engaged in converting the structure from a tenement to a nontenement building. The motion was made upon the ground that it appeared upon the face of the complaint that defendant, appel (148 N.E.) Charles R. Weeks, Dist. Atty., of Mineola (Charles I. Woods, of Mineola, of counsel), for the People. 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 Leasing Company, was a dummy to enable him as a majority stockholder and the true owner to carry on the work. The Appellate Division held that the complaint went further and alleged that the work was being done under the direction and control of defendant, appellant, and that he was guilty of the negligence which caused the building to collapse. The following question was certified: PER CURIAM. affirmed. Judgment of conviction HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. 2 Tillie JACOBSTEIN, Respondent, v. Israel (Court of Appeals of New York. July 15, Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (209 App. Div. 846, 204 N. Y. S. 918), entered June 12, 1924, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in an action, wife against husband, for a separation on the grounds of cruel and inhuman treatment and abandonment. P. Chamberlain, of Rochester, for appellant. John J. McInerney, of Rochester, for respondent. PER CURIAM. Judgment affirmed with costs. HISCOCK, C. J., and CARDOZO, McLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur. POUND, J., not voting. Thomas G. ABBOTT, Appellant, v. RICHMOND COUNTY COUNTRY CLUB, Respondent. (Court of Appeals of New York. July 15, 1925.) Appeal from a judgment, entered February 2, 1925, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department (211 App. Div. 231, 207 N. Y. S. 183), reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, while a guest of a member of defendant, received the injuries complained of through a fall while going out of the club locker room. The testimony showed that the floor was of concrete, with a smooth finish, stained and covered with a thin coating of linseed oil and was somewhat slippery. There was some evidence 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 appellant. George F. Hickey and William Butler, 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., not voting. 2 Louis LAVINO, Respondent, v. John OCHSENHIRT, Appellant, Impleaded with Another. (Court of Appeals of New York. July 15, 1925.) Fourth street in the city of New York, plaintiff received the injuries complained of as the result of a collision with a motorcycle which was being driven by defendant, appellant, a police officer, southerly on the east or wrong side of the road. It appeared that defendant approached behind a wagon and inclined to the left to avoid striking it when it turned to the east to enter One Hundred and FortyFourth street. George P. Nicholson, Corp. Counsel, of New York City (John F. O'Brien, Willard S. Allen, and Charles C. Marrin, all of New York City, of counsel), for appellant. William J. Hogan, of White Plains, and John Ambrose Goodwin, 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., not voting. 3 Edward C. SUFFERN, Appellant, v. Kaufman MANDELL et al., Respondents. (Court of Appeals of New York. July 15, 1925.) Appeal from a judgment, entered March 13, 1925, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (212 App. Div. 1, 208 N. Y. S. 275), reversing a judgment in favor of plaintiff 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 department in that of defendants', the plaintiff agreeing to transfer his accounts and orders to defendants in consideration of their agreement to pay to him a percentage of the net profits. Thereafter plaintiff commenced an action and recovered judgment against a third party for breach of contract to deliver merchandise. The controversy here arises from a dispute as to whether plaintiff or defendants were entitled to the amount collect Chauncey E. Treadwell, of New York City, for appellant. Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (211 App. Div. 848, 207 N. Y. S. 866), entered March 26, 1925, modify-ed on the judgment. ing, and affirming as modified, a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained through the negligence of the defendant. The complaint alleged that while riding a motorcycle northerly on Mott avenue at about One Hundred and Forty- costs. Adolph Feldblum and Aaron William Levy, both of New York City, for respondents. PER CURIAM. Judgment affirmed, with |