In re HINDS, NOBLE & ELDREDGE. (Court of Appeals of New York. June 13, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (158 N. Y. Supp. 249), entered April 14, 1916, which reversed an order of Special Term denying the application of petitioner for permission to change its corporate name and granted said application. Minority stockholders objected on the grounds that the application was not made in good faith, and that the proposed change of name would be a serious detriment to the best interests and welfare of the company. The petitioning corporation argued that a stockholder had no right or standing to oppose a change in corporate name, and that even if a stockholder had such standing, an objection by him, to be such a "reasonable objection" as to furnish grounds for denying the application, must be predicated on fraud or illegality. The Special Term dismissed these contentions and denied the application on the merits. The Appellate Division reversed this determination and sustained the second of the contentions mentioned, holding, in substance, that since the objecting stockholders had shown neither "fraud" nor "illegality" in connection with the proposed change of name, the application should be granted. Frederick T. Kelsey, of New York City, for appellants. Edward F. Clark and Roger Hinds, both of New York City, for respondent. INTERBOROUGH RAPID TRANSIT CO., Appellant, v. KELSEY, Respondent. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (166 App. Div. 567, 149 N. Y. Supp. 741), entered November 11, 1914, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term in an action to recover the down money paid by plaintiff as vendee on the execution of a contract to purchase a parcel of land on the Harlem river. Plaintiff also sought to establish and foreclose a lien on the land for the repayment of said amount. The answer pleads a counterclaim for specific performance of the contract. The judgment dismisses the complaint and gives judgment on the counterclaim that the plaintiff specifically perform the contract, and accept a deed in a prescribed form and pay the purchase price. The cause of action claimed is based on the ground that defendant could not convey a title according to the contract, and was in default. Charles T. Adams and James L. Quackenbush, both of New York City, for appellant. Abram I. Elkus and Wesley S. Sawyer, both of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY, JJ., concur. JOHNSON, Respondent, v. CITY OF NEW YORK, Appellant. (Court of Appeals of New York. June 13, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (165 App. Div. 697, 151 N. Y. Supp. 363), entered January 15, 1915, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term PER CURIAM. Order affirmed, with costs. and granting a new trial in an action to recover for the death of plaintiff's intestate alWILLARD BARTLETT, C. J., and HIS-leged to have been occasioned through the negCOCK, CHASE, CUDDEBACK, HOGAN, ligence of defendant, his employer. The intesCARDOZO, and POUND, JJ., concur. V. HUNSBERGER et al., Respondents, GUARANTY TRUST CO. OF NEW YORK, Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (164 App. Div. 740, 150 N. Y. Supp. 190), entered December 10, 1914, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action by the administrators of the holder of one of the first mortgage collateral trust bonds of the Interstate Land & Building Co-operative Association to recover damages from the defendant as successor trustee under the collateral trust agreement, securing said bonds, because of the alleged gross negligence of its predecessor trustee, the Standard Trust Company of New York, in permitting the substitution of certain new collateral security under said trust agreement in place of the collateral then held by the trustee thereunder. J. Howland Auchincloss and Charles H. Russell, both of New York City, for appellant. James H. Hickey, of New York City, for respondents. PER CURIAM. Order affirmed, and judgment absolute ordered against appellant on the stipulation, with costs in all courts, on opinion of Dowling, J., below. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY, JJ., concur. tate was, and for some years had been, employed by the city in its bridge department as a painter and rigger. At the time of the accident, in the course of his duty, he was upon one of a pair of spars suspended by a block and fall under the structure of the Brooklyn Bridge over Main street. These spars constituted the framework of a scaffold which had been completed by laying loose boards across the spars to make a footing for the painters. The work of applying the paint to that particular portion of the bridge structure was finished, all the planks except one had been removed and plaintiff was seated astraddle of the spar using the one plank left to steady himself while he removed certain center lines, called belly lines. The fastening of the supporting rope attaching one end of the spar upon which the intestate was seated to the hook in the block was defective and gave way and the spar fell at that end, precipitating the intestate to the pavement of the street and causing injuries from which he died. The principal questions are: (a) Whether the spars, block and fall, and plank which the intestate was using as a support at defendant's instance while he untied the belly lines, constituted a scaffold ("or other mechanical contrivance") within the meaning of section 18 of the Labor Law (Consol. Laws, c. 31); and (b) whether this work of untying the belly lines preparatory to lowering and removing the spars constituted "labor of any kind in the *** painting" of the bridge structure within the meaning of the same provision. Lamar Hardy, Corp. Counsel, of New York City (Edward A. Freshman and Thomas F. Magner, both of Brooklyn, of counsel), for appellant. Martin for the motion. F. M. Tomlin, of Brooklyn, T. Manton, of Brooklyn, for respondent. opposed. PER CURIAM. Order affirmed, and judgment absolute ordered against appellant on the stipulation, with costs in all courts. HISCOCK, CHASE, HOGAN, CARDOZO, and SEABÚRY, JJ., WILLARD BARTLETT, C. J., and COLLIN, J., dissent. concur. PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion. KEITH, Respondent, v. PAYNE, Appellant. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (155 N. Y. Supp. 1116), enJONES v. WOODIN et al. (Court of Ap-tered October 7, 1915, affirming a judgment in peals of New York. May 30, 1916.) Motion favor of plaintiff entered upon a verdict in an to dismiss an appeal from a judgment of the action to recover for personal injuries alleged Appellate Division of the Supreme Court in to have been sustained by plaintiff through the the First Judicial Department (156 N. Y. Supp. negligence of defendant's testator, in that he 1128), entered February 18, 1916, dismissing an negligently maintained near the residence of appeal taken to that court by appellant herein the plaintiff in the village of Westport, Essex from a judgment in favor of plaintiff entered county, electric wires and apparatus which were upon a verdict in an action to recover for the dangerous in being too near the ground, in alleged conversion of certain shares of stock. that the insulation was defective and that the The motion was made upon the ground that wires were not guarded in a careful and reasonreceivers of the appellant corporation had been able manner, and that the plaintiff, while lawappointed, its assets removed from the state, fully on the land near said wires, came in conand that the appeal had been taken subsequent tact therewith and was injured. The defendant to its dissolution and without authority of the admitted the ownership of the wires, but decourt. James A. Foley, of New York City, for nied every other allegation, and alleged conthe motion. L. Laflin Kellogg, of New York tributory negligence. Edward T. Stokes, of City, opposed. Pt. Henry, for appellant. Owen D. Connolly, H. P. Humphrey, and Frederick E. Bowen, all of Troy, for respondent. PER CURIAM. Motion denied, without costs. J. P. DUFFY, CO., Respondent, v. STAPLETON NAT. BANK, Appellant, et al. (Court of Appeals of New York. June 16, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (157 N. Y. Supp. 1130), entered April 3, 1916, affirming a judgment of Special Term in an action to foreclose a mechanic's lien. The motion was made upon the ground that there are no exceptions in the case which survive the unanimous affirmance by the Appellate Division. Jeremiah J. Coughlan, of New York City, for the motion. Frank M. Avery, of New York City, opposed. PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, SEABURY, and POUND, JJ., concur. KELLY, Respondent, v. BAKER, SMITH & CO., Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (165 App. Div. 912, 150 N. Y. Supp. 1091), entered December 2, 1914, affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover damages from the defendant for negligently causing the death of plaintiff's husband, in the Grand Central Palace, in the course of construction. The defendant in the city of New York. The building was was a sub or plumbing contractor, and at the time of the accident was putting in a line of 6-inch pipe at the side of the said premises. borer upon the morning of the accident by the Plaintiff's intestate had been engaged as a laforeman of laborers, to begin work at 1 o'clock, or after the noon lunch, and for that purpose entered the building a little before noon, and while waiting for the laborers to begin work at 1 o'clock he took a seat near the scaffold upon which employés of the defendant were working, and was struck by the collapse of this scaffold in such a manner that the planks slid upon him, or a crosspiece struck him, and he Edreceived the injuries from which he died. ward P. Mowton, of New York City, for apPER CURIAM. Motion denied, without pellant. Edwin S. Merrill, of New York City, costs. for respondent. JULIANO v. SCHETTINO et al. (Court of Appeals of New York. June 13, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (157 N. Y Supp. 1130), entered February 19, 1916, affirming a judgment in favor of plaintiff entered up; on a decision of the court on trial at Special Term in an action to set aside a deed of real The motion was made upon the property. grounds that the judgment of the Special Term was interlocutory, that the affirmance of the same by the Appellate Division was unanimous, and that permission to appeal had not been ob tained. William H. E. Jay, Jr., of Brooklyn, for the motion. James S. Darcy, of New York City, opposed. PER CURIAM. Judgment affirmed, with costs. KALKBRENNER, Respondent, v. MECHANWILLARD BARTLETT, C. J., and CHASE, ICS' BANK, BROOKLYN, Appellant. (Court of Appeals of New York. May 30, 1916.) Mo-COLLIN, CUDDEBACK, HOGAN, CARDOtion to dismiss an appeal from a judgment of ZO, and SEABURY, JJ., concur. the Appellate Division of the Supreme Court in the Second Judicial Department (157 N. Y. Supp. 1130), entered March 2, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term after a special verdict in an action to recover a balance alleged to be on deposit in defendants' bank. The motion was made upon the grounds that the Appellate Division had unanimously decided that the verdict of the jury was supported by the evidence; that the exceptions were frivolous and that no appeal lay to the Court of Appeals. Nicholas Dietz, of Brooklyn, LEVY v. ALLISON et al. (Court of Appeals of New York. May 30, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (169 App. Div. 936, 154 N. Y. Supp. 1130), entered December, 1915, affirming a judgment in favor of defendants entered upon a decision of the court at a Trial Term without a jury in an action to set aside an agreement on the ground of false representations. The motion was made upon the grounds that the decision of the Appellate Divi sion was unanimous, that no questions of law were presented, that the exceptions were frivolous, and the appeal taken only for purposes of delay. Edward H. Green, of New York City, for the motion. Henry B. Twombly, of New York City, opposed. PER CURIAM. Motion granted, and appeal dismissed, with costs, and 10 costs of motion. LOW, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (163 App. Div. 926, 147 N. Y. Supp. 1123), entered May 12, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an recover for damages to plaintiff's lands alleged to have been caused by fires negligently set by defendant on its right of way. McClary & Allen, of Malone, for appellant. Frank L. Bell, of Glens Falls, and Edgar T. Brackett, of Saratoga Springs, for respondent. PER CURIAM. Judgment affirmed, with WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, SEA BURY, and POUND, JJ., concur. costs. MCDONOUGH, Appellant, v. INTERBOROUGH RAPID TRANSIT CO., Respondent. (Court of Appeals of New York. May 30, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (155 App. Div. 933, 140 N. Y. Supp. 1129), entered October 24, 1913, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff's intestate, alleged to have been occasioned through the negligence of defendant. The complaint alleged that the death of the said Bernard McDonough, deceased, was the result of injuries sustained by him on or about the 11th day of August, 1910, by being run over by one of said defendant's northbound trains upon said northbound track of defendant's subway on Broadway at said 137th street station, having fallen from the easterly platform thereof because of the carelessness and negligence of the above-named defendant and its agents, employés and servants in failing to protect said Bernard McDonough, deceased, he being then under their care and control, having been taken from one of said defendant's northbound trains, upon which he was a passenger, by the said defendant's employés while in a partly comatose condition and while unable to care for himself." Cornelius J. Earley and Peter J. Brancato, both of New York City, for appellant. Lemuel E. Quigg and James L. Quackenbush, both of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT. C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur. MCMAHON, Respondent, v. MALTBY, Appellant. (Court of Appeals of New York. May 30, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (162 App. Div. 932, 147 N. Y. Supp. 1124), entered April 13, 1914, 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 maintenance by defendant of a nuisance in permitting an iron gate to stand open so as to obstruct the sidewalk in front of his premises. Plaintiff while passing along the street, in order to avoid the gate, turned, and when about opposite the gate, slipped and fell, and in endeavoring to save WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur. MATHESON v. MENTE et al. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (163 App. Div. 912, 147 N. Y. Supp. 1126), entered June 5, 1914, modifying, and affirming as modified, a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a mortgage made by one Ottilie Mente to the "Estate of Richard J. Stainton," deceased, purporting to secure the payment of $17,500 and interest, bearing date December 7, 1909, and recorded in Kings county register's office on December 14, 1909. The complaint pleads the said mortgage as security for a bond to one George F. Stainton as executor of said estate in like sum executed simultaneously therewith. The action was originally brought by said George F. Stainton as executor of the estate of Richard J. Stainton, deceased, claiming ownership of said bond and mortgage from said Ottilie Mente. The present plaintiff is a substituted trustee, who claims the full principal sum and interest from the date of the mortgage. The defendants the Title Insurance Company of New York and Brooklyn Trust Company, as trustee, etc., interposed an answer denying that there was any sum due upon said mortgage, and after other denials as to the said mortgage alleged that the debt was fully paid and the mortgage had been duly satisfied of record on February 21, 1910. James R. Deering, of New York City, for appellants. Thomas O'Callaghan, of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, SEABURY, and POUND, JJ., concur. MATHESON v. MENTE et al. (Court of Appeals of New York. June 13, 1916.). PER CURIAM. Motion for reargument denied, with $10 costs. See 218 N. Y. -, 113 N. E. 1060. MAYTHAM, Appellant, v. DUNCAN et al., May 30, 1916.) Appeal from a judgment of the Respondents. (Court of Appeals of New York. Appellate Division of the Supreme Court in the Fourth Judicial Department (163 App. Div. 931, 147 N. Y. Supp. 1127), entered May 19, 1914, affirming a judgment in favor of defendants entered upon the report of a referee dismissing the claim of the plaintiff, based upon an alleged oral agreement, against the estate of John Kelderhouse, deceased. It appeared that one Benjamin L. Cowles was a shipbuilder in the city of Buffalo and that he had in his possession an engine, boiler, and other material for the building of a tug, but had no money to put the articles together and complete it. Maytham, the plaintiff in the case at bar, became acquainted with this state of facts and saw Cowles in regard to the matter; Cowles stating to Maytham that he would build a tug if Maytham could get some money to put the articles together and complete it. Plaintiff procured defendant's intestate to advance the money under an agreement with Cowles that said intestate should be entitled to four-fifths of the profits on the sale of the tug. Plaintiff alleged an oral agreement with intestate whereby he was to receive one-half of the said fourfifths of profits. Charles Newton and A. W. Plumley, both of Buffalo, for appellant. Albert C. Spann, of Buffalo, for respondents. PER CURIAM. Judgment affirmed, with costs, under the last sentence of section 1317 of the Code of Civil Procedure. WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur. Division of the Supreme Court in the Third Judicial Department (169 App. Div. 310, 154 N. Y. Supp. 1059), entered November 19, 1915, upon an order which reversed a determination of the Board of Claims dismissing the plaintiff's claim for the value of a telephone line claimed to have been appropriated by the state in the construction of the Barge Canal and directed judgment awarding damages therefor. T. Harvey Ferris, of Utica, Charles T. Russell, of New York City, John A. Delehanty, of Albany, Arnold W. Sherman, of New York City, and C. R. Dewey, of Utica, for plaintiff. Egburt E. Woodbury, Atty. Gen. (Joseph P. Coughlin, of Albany, of counsel), for the State. PER CURIAM. Judgment affirmed, without costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur. CUDDEBACK, J., dissents. MILHOLLAND, Appellant, v. PAYNE, Respondent. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (169 App. Div. 712, 155 N. Y. Supp. 773), entered November 10, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint in an O'BRIEN, Appellant, v. CITY OF NEW action to compel specific performance of a con- YORK, Respondent. (Court of Appeals of New tract to sell real property or for damages. The York. May 12, 1916.) Appeal from a judgment action is brought in equity to compel the de- of the Appellate Division of the Supreme Court fendant to deed to the plaintiff certain land in the First Judicial Department (155 N. Y. theretofore purchased by the defendant on the Supp. 538), entered December 11, 1915, affirming ground that the defendant had agreed to pur- a judgment in favor of defendant entered upon chase the same for the plaintiff, and upon the an order of Special Term sustaining a demurrer promise of the defendant to make such convey- to and dismissing the complaint in an action to ance to the plaintiff. Adelbert W. Boynton, of recover one-half the amount of fees collected by Keeseville, for appellant. Frank B. Wickes, of plaintiff in his official capacity and turned over Ticonderoga, for respondent. to said defendant according to law. On January 1, 1914, plaintiff, having been duly elected to the office of sheriff of the county of Bronx, duly qualified for said office, and assumed the duties thereof. As appurtenant to plaintiff's duties as sheriff of said county, during the months of January, February, and March, 1914, he collected the sum of $1,649.46 in fees regulated and prescribed by statute, for the various services performed by plaintiff for the community. As required by law (Laws 1912, c. 548, § 4) plaintiff deposited said amount with the chamberlain of the city of New York. Plaintiff claims that by virtue of the Laws of 1890, c. 523, § 1, and the acts supplementary thereto and amendatory thereof, he is entitled to one-half of the amount so turned over. Wiliam Cohn, of New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondent. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, SEABURY, and POUND, JJ., concur. PER CURIAM. Judgment affirmed, with costs, on opinion of Clarke, J., below. COCK, CHASE, COLLIN, HOGAN, CARDO- NEWCOMB, Respondent, v. LA ROE, Appellant. (Court of Appeals of New York. May 30, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (160 App. Div. 819, 146 N. Y. Supp. 133), entered May 12, 1914, modifying, and affirming as modified, a judgment in favor of defendant entered upon a decision of the court on trial at Special Term in an action to construe the will of and to determine the amount due to defendant for services rendered to plaintiff's testator. The complaint alleged: (1) That a bequest of $4,000 and of an income of $1,400 a year for life to defendant was intended by the plaintiff's testator to be in satisfaction of a claim filed by defendant for $7,579.53 for services rendered by her as trained nurse and housekeeper for the testator; (2) that defendant had elected to stand upon her claim and had rejected the bequest; and (3) prayed judgment accordingly and WINGATE CO., Appellant. (Court of Appeals O'DONNELL, Respondent, v. CAULDWELLalso that the amount due to defendant for her of New York. June 6, 1916.) Appeal from a services might be determined by the court. De-judgment of the Appellate Division of the Sufendant answered: (1) Denying that it was the intention of the testator that the bequest was to be received in satisfaction of her claim, also denying that she had elected to reject the bequest; and (2) setting up as a counterclaim that the estate was indebted to her for services in the sum of $8,880, less $2,010.06 paid upon account. Nelson L. Robinson and William A. Hoy, both of New York City, and Fred M. La Duke, of Keeseville, for appellant. D. Cady Herrick, George Bell, and Benjamin Patterson, all of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK. COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur. NEW YORK TELEPHONE CO. v. STATE. (Court of Appeals of New York. July 11, 1916.) (164 App. Div. 941, 149 N. Y. Supp. 1100), en- both of New York City, for appellant. Thomas liam Dewey Loucks, of Schenectady, for reJ. O'Neill, Cornelius J. Earley, and Peter J. J. spondent. Brancato, all of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur. PER CURIAM, Judgment affirmed, with costs. WILLARD BARTLETT. C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur. PEOPLE, Respondent, v. ABELSON, Appellant. (Court of Appeals of New York. May 23, 1916.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (162 App. Div. 674, 148 N. Y. Supp. 30), en ment of the Court of Special Sessions of the City of New York sustaining a demurrer to an information filed against the defendant and disallowed said demurrer. The motion was made upon the ground of failure to file the required return. Edward Swann, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the motion. Robert M. Moore, of New York City, opposed. O'REILLY v. ADAMS et al. (Court of Appeals of New York. June 16, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (163 App. Div. 60, 148 N. Y. Supp. 441), entered July 10, 1914, affirming a judg-tered May 29, 1914, which reversed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The complaint alleged that plaintiff is receiver in supplementary proceedings under a judgment recovered by Casper Michaels against James McCord for $397.55, which was assigned to John D. Eckert; that James McCord had on deposit in the Rondout Savings Bank, from July, 1902, to June, 1910, $400; that the bank refused to pay the amount to the plaintiff after demand. The bank denied that James McCord had on deposit at any time the sum of $400 or any part thereof, and alleges that the account was opened by Maria McCord; that she retained title to the account and possession of the passbook at all times until June, 1910, when the account was closed and the amount due thereon paid to Maria McCord. H. H. Flemming and De Witt Roosa, both of Kingston, for appellant. John D. Eckert and N. Frank O'Reilly, both of Kingston, for respondent. costs. PER CURIAM. Motion granted, unless brief for appellant is served upon the district attorney within five days, in which event the case is set down for argument on June 5, 1916. PER CURIAM. Judgment affirmed, with In re PATTERSON. (Court of Appeals of New York. July 25, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (160 N. Y. Supp. 362), entered July 8, 1916, which affirmed an order of Special Term dismissing a petition for the review of the apportionment enacted by chapter 373 of the Laws of 1916. Albert De Roode and Ellwood M. Rabenold, both of New York City, for appellant. Egburt E. Woodbury, Atty. Gen. (Leonard J. Obermeier, of New York City, of counsel), for respondents. PER CURIAM. The Apportionment Act of 1916 having been adjudged unconstitutional in the case of Matter of Dowling, 219 N. Y. 44, 113 N. E. 545, on grounds other than those set forth in the petition herein, the appeal in this case is dismissed, without costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. PEOPLE, Respondent, v. ABELSON, Appellant. (Court of Appeals of New York. June 13, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (162 App. Div. 674, 148 N. Y. Supp. 30), entered May 29, 1914, upon an order which reversed a judgment of the Court of Special Sessions of the City of New and overruled such demurrer. The information was as follows: "Be it remembered that I, Charles S. Whitman, district attorney of the county of New York, by this information accuse the above-named defendant of the crime of keeping a room to be used for gambling, committed as follows: At the city of New York, in the county of New York, the said defendant, on the 9th day of November, 1913, kept a room to be used for gambling." The Court of Special Sessions held that the demurrer should be sustained on the ground that the information was fatally defective in that it failed to state the acts constituting the crime. Robert M. Moore, of New York City, for appellant. Edward Swann, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People. PER CURIAM. Judgment affirmed. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur. PEOPLE, Respondent, v. ARONSON et al., Appellants. (Court of Appeals of New York. May 30, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the PELLOCK, Respondent, v. SCHENECTADY Second Judicial Department (156 N. Y. Supp. RY. CO., Appellant. (Court of Appeals of New 396), entered December 24, 1915, which affirmYork. May 30, 1916.) Appeal from a judged a judgment of the Court of Special Sessions ment of the Appellate Division of the Supreme of the City of New York convicting the defendCourt in the Third Judicial Department (163 ants of the crime of larceny by obtaining propApp. Div. 929, 147 N. Y. Supp. 1131), entered erty and credit by the use of a false statement, May 25, 1914, affirming a judgment in favor of as defined in section 1293 of the Penal Law plaintiff entered upon a verdict in an action (Consol. Laws, c. 40). Defendants, husband to recover for the death of plaintiff's intestate and wife, obtained the discount of certain notes, alleged to have been occasioned through the by presenting to the discounting bank a written negligence of defendant in permitting one of its statement representing that the wife was the trolley cars to collide with a wagon driven by owner of certain real property. It appeared said intestate. The negligence of the defendant that two months prior to the presentation of the and the contributory negligence of intestate statement the property had been conveyed. Jawere the only questions on appeal. Daniel cob Manheim, of New York City, for appellants. Naylon, Jr., of Schenectady, for appellant. Wil- Harry E. Lewis, Dist. Atty., of Brooklyn |
