Continued.

BANKS AND BANKING
company, an amount paid therefrom by him for lawyers' and
brokers' fees on the sale of a bond and mortgage belonging to said
trust estate, the trust estate is not chargeable therewith in the
absence of proof that the estate of the co-executor was released,
and the trust company remains liable to plaintiff therefor, with
interest. But for the amount of two checks drawn by the co-
executor out of the special account and payable to the trust estate
that estate is liable. Whiting v. Hudson Trust Co., 425.

BILL OF PARTICULARS.

66

1. When will be ordered to be furnished to proponent of a will
Surrogate's Court — Code Civ. Pro. § 531.- Objection to the
factum of the will and allegations of lack of testamentary capacity
being practically a general denial of what proponent must prove
to establish the will, such denial is not a claim" under section 531
of the Code of Civil Procedure, and does not warrant an order
that contestants furnish a bill of particulars. But where allegations
of fraud and undue influence are sufficient to require contestants
to furnish the name or names of those charged with exercising fraud
or undue influence upon the testator or to state lack of knowledge
in that respect, a bill of particulars will be ordered to be furnished
to proponent, particularly where he swears that he has endeavored
to obtain such information, and the will does not indicate with
certainty who would be likely to exercise any fraud or undue
influence. Matter of Francis H. Ross, 41.

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2. When motion for, granted - Negligence ·
Workmen's Com-
pensation Act Employers' Liability Act.- While plaintiff, an
employee of defendant, was engaged in work, maritime in its nature,
he sustained injuries to his person for which he claimed and received
compensation under the Workmen's Compensation Act. In an action
subsequently brought in a state court for the same injuries plaintiff
claimed to be entitled to recover both by an action at common law
and under the Employers' Liability Act. Held, that in the circum-
stances plaintiff's motion for a bill of particulars of his alleged con-
tributory negligence pleaded as a defense, will be granted. Maeurer
v. Morse Dry Dock & Repair Co., 70.

BRIDGES.

Statutes-Right of city of New York to operate railroad over
Williamsburg bridge- Municipal corporations Railroads Con-
stitutional law- Greater New York Charter, as amended in 1901,
§ 595(5)- Public Service Commissions Law, § 53 - Railroad Law,
§ 22-Laws of 1916, chap. 528-Laws of 1897, chap. 663.- The
provision of section 595 (5) of the Greater New York Charter, as
amended in 1901, by which the commissioner of bridges, who still
had the management and maintenance of the New York and Brooklyn
bridge and control of the operation of the railroad thereon, was
given in general terms the management of all other bridges, was
followed by an express provision abolishing the Williamsburg bridge
commission, and all its powers and duties, one of which was to
operate and authorize to be operated a railroad over said bridge,
were duly transferred to the commissioner of bridges of the city

of New York and by a later statute (Laws of 1916, chap. 528)
to the commissioner of plants and structures of said city. The
legislative act (Laws of 1897, chap. 663) which provided that the
trustees of the Brooklyn bridge might continue to maintain and
operate the then present railroad thereon did not limit the power
already delegated the Williamsburg bridge commission, which in turn
is devolved upon the present commissioner of plant and structures,
and the city of New York through that official has an existing right
to operate a railroad on the Williamsburg bridge. Dilluvio v. City
of New York, 73 Misc. Rep. 122, distinguished. The legislature
having granted to the city of New York the right to operate a
railroad on said bridge and there being no place thereon for the
storage of cars it must be held that as a necessary implication to
such grant the city may erect a barn underneath the structure of
the bridge and by necessary trackage connect the existing bridge
tracks with the barn, and if in the course of making such connection
it is necessary to cross the tracks of the defendant railroad company
now operating over the bridge as licensee only and free to abandon
the bridge service at any time, the law allows such crossing over.
An application by the city of New York under section 22 of the
Railroad Law for the appointment of commissioners to determine
the compensation, if any, to be awarded defendant as a condition
of constructing a cross over on its tracks, etc., will be granted and
the obtaining of a certificate under section 53 of the Public Service
Commissions Law is not a necessary prerequisite. The legislature
has constitutional power to grant to a municipal corporation the
right to operate a railroad on the Williamsburg bridge, which,
besides being an aerial highway, has been declared by statute to
be a public highway. City of New York v. Brooklyn City R. R.
Co., 94.

BROKERS.

Real estate· Valid contract for commissions - When broker not
employed in a confidential capacity by two opposing interests.—
Where there is nothing in an agreement between a real estate broker
and an intending purchaser, as pleaded or testified to, whereby the
broker bound himself not to disclose to the seller the fact that he
was to receive a commission from the other party, the contract is
valid on its face. Defendant agreed to purchase certain real estate
at the price asked, only through plaintiff as broker, and that if
he did not so purchase or if plaintiff did not receive a commission
from the seller, defendant would pay plaintiff such commission.
The plaintiff having received no commission from the seller upon
a sale made within the purview of the terms of the contract brought
an action in which he testified that defendant said to him: "If you
bring me some property I like, I will buy it quick through you
and you get the commission. Even if I buy the property through
other brokers and you don't get the commission from the owner,
the other side, I will pay from my own pocket the commission."
Held, that the contract could not properly be construed as sub-
jecting plaintiff to employment in a confidential capacity by two
opposing interests, and a judgment entered upon a dismissal of the
complaint at the close of plaintiff's case will be reversed and a new
trial granted. Levine v. Susser, 609.

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BUFFALO, CITY OF

City of Buffalo — Charter of 1916, § 264(3)— Constitutional law
-Statutes Police - Injunctions - Pensions State Constitution,
art. VIII, § 10-Laws of 1895, chap. 137. The provision of
section 264 (3) of the 1916 charter of the city of Buffalo, that the
common council, in its discretion, may grant a pension to widows
of deceased members of the police force, etc., is in violation of
section 10 of article 8 of the constitution of the state. Where a
member of the police force of the city of Buffalo was retired on
a pension in 1897, and died five years later, the plaintiff in an
action to enjoin the payment of a pension granted to his widow in
1919, by the trustees of the police pension fund, will be granted the
relief prayed for. The widow can have no relief under the statute
(Laws of 1895, chap. 137) which confines the granting of such
pensions to cases "where death or retirement has occurred prior
to the passage of this act." Glasser v. City of Buffalo, 88.
See Injunctions.

CANAL LAW.

Canal Law, § 47- -The word "person" includes municipal cor-
poration - Jurisdiction of Court of Claims. The word "person
in section 47 of the Canal Law includes a municipal corporation. A
claim under such provision of law made by the village of Seneca
Falls for damages alleged to have been suffered by it by reason of
the act, fault and negligence of the state, in the construction, main-
tenance and operation of the improved Cayuga and Seneca canal at
Seneca Falls, whereby a large volume of water in a pool created
by the state was precipitated in and upon the claimant's sewer
system and sewage disposal plant, is properly a subject for adjudica-
tion by this court and the state's motion to dismiss will be denied.
Village of Seneca Falls v. State of New York, 35.

CARRIERS.

See Injunctions; Mandamus.

CERTIORARI.

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When writ of, sustained - Statutes Zoning regulation, city of
New York Board of appeals. The power to fix zones and create
business and residence districts in the city of New York resides
wholly in the board of estimate and apportonment except in so far
as that body, under the statute (Laws of 1917, chap. 601, amending
Laws of 1916, chap. 503, § 242(a)), may have delegated to the
board of appeals the right to vary the application of the use district
regulation adopted by the board of estimate and apportionment.
No zoning regulation adopted by the board of estimate and appor-
tionment may in effect be repealed or set at naught by the action
of the board of appeals taken in the guise of a variance. The
residential character of the properties on the east side of Madison
avenue between Thirty-fifth and Thirty-sixth streets in the city of
New York cannot but be appreciably lessened in desirability for
residential purposes by the construction of a business building
opposite them on the west side, and, the board of estimate and
apportionment having placed such properties in a district restricted
to residence use, the board of appeals, in granting a permit for the

CERTIORARI- Continued.

erection of a business building on the west side of said block under
a resolution containing certain restrictions as to height, shape and
architectural features, exceeds its power and a writ of certiorari to
review such determination will be sustained. People ex rel. Sheldon
v. Board of Appeals, 449.

See Taxes.

CHARTER.

See Ships and Shipping.

CIVIL SERVICE.

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World war

- Statutes.-

Civil Service Law (Laws of 1919, chap. 225), § 22-b -
veterans When position not abolished· Mandamus
In the absence of direct statutory provision to the contrary, a
position in the civil service may be abolished only by the same
agencies that created it. Technically such a position in the water
supply, etc., department of the city of New York, as distinguished
from the incumbent or the salary, is not abolished until appropriate
action to that effect is taken by the commissioner of water supply,
etc., and the board of aldermen. The sole test prescribed by section
22-b of the Civil Service Law (Laws of 1919, chap. 225) for the
right of a World war veteran who left his position in the civil
service to enter the federal military service, to restoration, is that
his former position must exist at the time of his discharge from
the army. On August 31, 1918, relator, who since 1911 had been
assistant engineer in the department of water supply, etc., of the
city of New York, left his position to enter the federal military
service from which he was honorably discharged September 30,
1920. Upon the hearing of an application pursuant to section 22-b
of the Civil Service Law (Laws of 1919, chap. 225) for a peremptory
writ of mandamus to compel the commissioner of water supply,
etc., to reinstate him as an assistant engineer, held, that where not-
withstanding the respondent's contention that the position formerly
held by relator had been abolished, it clearly appeared that after
the shifting of various engineers of the same general character as
relator and after the intradepartmental transfer of "office designa-
tions" and "titles," the position of relator as he left it to enter
the federal military service was intact upon his return, he came
within both the letter and spirit of the statute and was entitled to
the writ directing his restoration to his former position. People
ex rel. Machen v. Hayes, 373.

CLAIMS.

1. When court without power to amend- Notice of intention ·
Contracts. A claim may not be amended by setting up a cause of
action of a nature different from that stated in the notice of inten-
tion and dependent upon essential facts not contained in such notice.
Where the notice of intention filed against the state for work done
under a contract neither charges nor imputes to the state, its
officers or agents, acts, faults or omissions other than those of
negligence, mistake and error, the court is without power to amend
the claim so as to set up fraud. Murray v. State of New York, 363.

by prescription to continue flow of water over lands· Claim dis-
missed. Smith v. State of New York, 683.

See Court of Claims.

CODE OF CIVIL PROCEDURE.

See Code Civ. Pro. cited, ante, p. xlvi.

CODE OF CRIMINAL PROCEDURE.

See Code Crim. Pro. cited, ante, p. xlvi.

CONSTITUTIONAL LAW.

Equal protection of the laws not denied by Laws of 1921, chap.
154 Agreement between the states of New York and New Jersey
pursuant to said statute is valid — Injunction denied in action for
abrogation of said agreement.-Subject to the approval of the
Congress any two states may enter into a joint adventure to pro-
mote the common welfare of their citizens. The statute (Laws of
1921, chap. 154) designed to remove artificial barriers to delay in
the shipment of goods existing at the port of New York and to
corner special benefit upon the people of the states of New York and
New Jersey, as well as the country in general, is not unconstitutional
as a denial to the city of New York or its people of the equal
protection of the laws, and the contention that said statute creates
a new political subdivision is without merit. Where by an agree-
ment entered into between the states of New York and New Jersey
pursuant to said statute, they agreed to cooperate, each within its
own sovereignty, and the agreement expressly limits the jurisdiction
of the joint board of managers to such powers and authority as
may be legally conferred upon them in conformity with the con-
stitution of the state of New York and the constitution of the United
States, it is obvious that the state of New York has parted with
none of its sovereign rights nor relinquished the control over any
property belonging to its people. A motion to continue an injunc-
tion in an action brought by the city of New York seeking to have
said agreement abrogated, denied upon the merits. City of New
York v. Willcox, 351.

See Tables United States Constitution, New York State Con-
stitution cited, ante, pp. xlii, xliii; Buffalo, City of; Land-
lord and Tenant.

CONTRACTS.

1. Sale of real property — Specific performance - Title - Notice
Rescission-Lease - Insurance (fire).-A contract for the sale or
real property under which title was to be closed on or before June
1, 1920, upon a five days' notice from the purchaser, provided that
possession was to be delivered to him at the time of the settlement
subject to an existing lease which contained a clause that if the
building should be rendered untenantable by fire the rent should
cease until the building could be put in complete repair. On April
10, 1920, while the seller was still in possession of the premises, the
building thereon was substantially damaged by fire. On May 28,
1920, about two weeks after the seller's attorney had written to the