PENSIONS.

See Injunctions.

PERSONAL PROPERTY LAW.

See Table Consolidated Laws cited, ante, p. xliii; Sales.

PHYSICIANS AND SURGEONS.

When employer of injured employee liable for physician's services
- Section 13 of the Workmen's Compensation Law has reference
only to fees incurred by workman for medical treatment. The claim
of a physician for professional services rendered at the request of
defendant's superintendent, to several of defendant's employees, who
were injured in the course of their employment, is not a part of
the injured workmen's claim under the Workmen's Compensation
Law. The physician still retains the right to prosecute his claim
by an action, and where neither the rendition of the services nor the
reasonable value thereof is disputed, a judgment in favor of plaintiff
for the amount claimed will be affirmed. Feldstein v. Buick Motor
Co., 170.

PLEADING.

1. When motion for judgment sustaining a demurrer to separate
defense granted Negligence-Award.- Where in an employee's
action for personal injuries alleged to have been caused by the
negligence of the defendant the answer pleads as a separate defense
that plaintiff made a claim for and accepted compensation from his
employer, but there is no allegation that any award was ever made
to plaintiff under the statute, a motion for judgment sustaining
a demurrer to the separate defense will be granted. Godfrey v.
Brooklyn Edison Co., 21.

2. Breach of covenant. When covenant of quiet enjoyment not
dependent upon payment of rent.-A breach of covenant based upon
the personal acts of the covenantor is sufficiently alleged by nega-
tiving the covenant. Where an allegation of the complaint in an
action of covenant, that in the lease, which is neither set forth nor
a copy attached, defendants covenanted that plaintiff should peace-
ably and quietly occupy the premises, is followed by allegations that
plaintiff has not been permitted peaceably to occupy and enjoy the
possession of the premises, but on the contrary after the commence-
ment of the term and on dates stated "the defendants unlawfully
and without authority in law and with force, entered upon the same
and ejected this plaintiff therefrom and have ever since kept him
out of possession," but there is nothing to show that defendants'
covenant for quiet enjoyment was dependent upon plaintiff's pay-
ment of rent, the complaint is good on demurrer, though it fails to
allege that plaintiff had paid the rent called for by the lease. If
the covenant to pay rent was not a condition precedent the covenant
for quiet enjoyment was independent, and the failure of the plain-
tiff to live up to his obligation is no answer to an action for
defendants' breach of their covenant. Laveites v. Gottlieb, 218.

3. When allegations as to employment do not show an agreement
based upon a sufficient consideration.- Allegations that plaintiff
agreed to continue in the employ of defendants as salesman during

PLEADING - Continued.

the season of 1918, to procure orders for furs, and that as compen-
sation and for his commissions defendants agreed to pay him on
all orders procured by him and accepted by them and for reorders
on the same, 66
as follows," etc., do not show an agreement based on
a sufficient consideration. In an action for commissions alleged to
have been earned as salesman under the contract the plaintiff had
a verdict by direction of the court, but a second cause of action
pleaded in the complaint, for a wrongful discharge from employ-
ment, was dismissed. Held, that no error was committed either in
dismissing the second cause of action or in denying plaintiff's motion
to amend the first cause of action in order to increase the demand
for damages. Wallach v. Mendelson, 499.

POWERS.

-

When personal and not in trust Legacies - Executors.- A
power vested in executors to sell real estate devised to the husband
of the testatrix, subject to the payment of legacies, at such times
and in such manner as they may deem advantageous, is personal,
confidential and discretionary and there being no trust to sell the
property for the payment of legacies, which must be paid by the
devisee, an action to have a lien impressed upon the realty to the
extent of the legacies will not lie. Clayton v. Kingston, 631.
PRESCRIPTION.

See Claims.

PRINCIPAL AND AGENT.

-

When limitation of agent's authority should be unequivocal-
Life insurance · "Morris Plan"- Interlocking companies - Ac-
ceptance of overdue premiums Waiver. Where an agent is in
complete control of a business a limitation upon his authority should
be unequivocal. In an action brought by the beneficiary under a
policy of life insurance issued by "The Morris Plan Insurance
Society" in connection with a loan of money by the "Morris Plan
Company" the defense was that the policy had lapsed for non-
payment of premiums and had not been reinstated. It was admitted,
however, that prior to the death of the assured, all premiums had
been paid in full to the "Company." Held, that whether the policy
lapsed or not, plaintiff must prevail if the "Company" had power
to bind the "Society" and reinstate the policy by its acceptance of
overdue premiums. Where from the record on appeal by the
defendant from a judgment in favor of plaintiff entered on a verdict,
it appears that the defendant "Society" in truth and in fact was
nothing more nor less than an adjunct or feeder or instrumentality
of the Company" and the evidence discloses that these inter-
locking companies in conducting their joint and interlocking business
placed in each other a most explicit trust and that only in the most
technical sense can the Company be regarded as the Society's agent,
yet it must be held that the "Company" had authority to waive
the lapse in the payment of premiums, if lapse there was, and the
judgment appealed from will be affirmed. Fogg v. Morris Plan
Insurance Society, 491.

PRINCIPAL AND SURETY.

See Contracts; Landlord and Tenant.

PROBATE.

See Executors and Administrators; Real Property; Wills.

PROHIBITION.

See Ejectment.

PUBLIC SERVICE COMMISSION.

See Injunctions; Statutes.

PUBLIC OFFICERS.

Street improvements - Lack of authority of public officials - One
dealing with municipal authorities does so at his own risk— Prop-
erty owner not liable directly to contractor for improvements ·
Evidence. Peters v. Adams, 689.

See Jurisdiction.

RAILROAD CROSSINGS.

See Injunctions.

REAL PROPERTY.

-

-

Who is not a bona fide purchaser for value without notice— Wills
- Vacating probate Posthumous child - Damages. After the
executors under the will of a testator who died survived by his
widow, an infant daughter and an unborn child, had conveyed cer-
tain real estate of their testator, the surrogate, upon vacating and
setting aside the decree of probate on the ground that the daughter
had not been legally represented by special guardian and that the
posthumous child was not bound by said decree, opened the probate
proceeding with leave to the daughter to file objections. No steps
having been taken to reprobate the will, letters of administration
were duly issued. In an action to remove an alleged cloud upon
the title of the premises it appeared that, prior to taking title,
plaintiff saw the posthumous child but claimed that he closed the
transaction, throughout which he was not represented by an attor-
ney, upon the assurance of the executors that they would reprobate
the will, which claim was supported by the testimony of one of the
executors, the lawyer who drew the will. Held, that in the circum-
stances plaintiff was not a bona fide purchaser for value without
notice. That in the absence of proof of the existence of a valid
will at the time of the conveyance, of which plaintiff made no offer
of proof, he was only entitled to a return of the consideration paid
by him, the cancellation of the bond and mortgage given in part
payment of the purchase price, and $100 for liquidated damages,
besides any sum paid by him for taxes on the property, as well as
installments paid on account of the principal of the mortgage and
interest payments, together with interest on said several amounts
less the rental value of the property-seventy-five dollars per
month during the time of his occupancy. That the sums so pay-
able to plaintiff be decreed to be liens upon the property in question,
and that it may be sold to pay the same. Brazill v. Weed, 546.

See Contracts; Encroachments; Specific Performance; Tres-
pass; Vendor and Purchaser.

REPLEVIN.

Infancy is not a defense to an action in replevin to recover an
engagement ring given by plaintiff to defendant. Benedict v.
Flannery, 627.

SALES.

-

1. What insufficient to pass the property in the goods · Actions-
Contracts-Trial-Evidence-Damages-Personal Property Law,
$ 100, rule 4(1), 145(3).- Rule 4(1) of the rules declared by
section 100 of the Personal Property Law for ascertaining the
intention of the parties as to when the property in goods is to pass
to the buyer, unless a different intention appears, provides that
"where there is a contract to sell unascertained or future goods by
description and goods of that description and in a deliverable state
are unconditionally appropriated to the contract, either by the seller
with the assent of the buyer, or by the buyer with the assent of the
seller, the property in the goods thereupon passes to the buyer.
Such assent may be expressed or implied, and may be given either
before or after the appropriation is made." Held, that unless an
appropriation to the contract of goods, delivery of which was ten-
dered by the seller after manufacture, was made with the buyer's
assent express or implied, such appropriation is insufficient to pass
the property in the goods. A complaint set forth two causes of
action, one for the purchase price of goods sold and the other for
damages for defendants' breach of contract in cancelling and refus-
ing to be bound thereby. Upon the trial, by the court without a
jury, it appeared that after defendants had ordered from plaintiff
certain coats of two designated style numbers designed and manu-
factured by plaintiff, a number of the coats of the first style were
delivered to defendants who though they accepted and paid for
the goods refused a subsequent tender of the remaining coats of
that style and without reason cancelled the order for the goods of
the other style after a few of the coats of said style had been
delivered, accepted and paid for. When the order for the goods
was cancelled they were all in the course of manufacture. After
they were completed, a few days after the order of cancellation
they were sold in the open market and the evidence tended to show
that at the time of the sale, the market price had dropped twenty-
five to forty per cent since the contract was made. The plaintiff
was given judgment for the full contract price of the goods ten-
dered and for the difference between the contract price and that
for which the goods were sold in the open market, fixed by the
court as the market price of the goods of the style numbers which
the defendants had cancelled. Upon reversing the judgment and
ordering a new trial, held, that the plaintiff's sole right of action,
on the record as it stood, under the first cause of action alleged,
was one for damages for non-acceptance of the goods and that the
measure of damages was controlled by section 145 (3) of the Per-
sonal Property Law. The trial judge as to the second cause of
action, which was based on an anticipatory breach of contract, cor-
rectly applied the rule of damages which he should have applied.
upon defendants' refusal to accept and pay for the goods described
in the contract constituting the subject-matter of the first cause of
action. Funt v. Schiffman, 155.

2. Goods to be manufactured - Delivery in installments
Whether contract divisible question for jury - Personal Property
Law, §§ 125(3), 126(2), 156.- Where upon a sale of seventy-five
pieces of goods to be manufactured the purchaser accepts delivery
of fifty-nine pieces and rejects the remainder as defective and

SALES- Continued.

returns them to the seller who accepts such return and issues its
credit memoranda therefor, the dismissal of the complaint in an
action to recover damages alleged to have been sustained by reason
of the seller's refusal to replace the defective pieces at the contract
price, is error for which the judgment entered upon the dismissal
of the complaint will be reversed and a new trial granted. Under
the Personal Property Law (§§ 125 (3), 126(2) and 156) a jury
would have the right to determine whether the contract was divisible
and to fix the damages sustained by reason of the delivery of the
defective goods. Rosing v. Parkside Mills, Inc., 624.

SEAMEN.

See Municipal Court of City of New York.

SHIPS AND SHIPPING.

66

Negligence-Charter-party-Evidence-Damages—Trial.— While
defendant was in possession of plaintiff's scow without motive power
under a charter-party which included the services of a so-called
captain" whose duty it was to take care of the scow, it was
towed in calm weather to a dock and moored alongside of a steam-
ship for unloading. On the night of the next day the dock was
exposed to the full sweep of a northwest storm which developed
into a hurricane and as a result the scow was injured. Held, that
evidence that the weather bureau had issued storm warnings some
hours before the full strength of the hurricane developed, justified
an inference that defendant, which rested at the close of plaintiff's
case, was negligent in permitting the scow to remain in the position
where necessarily it would be exposed to the full force of the storm,
and that plaintiff was entitled to recover for all damage to the scow
caused by such negligence. Without deciding now, whether there
was evidence tending to show that the captain was in fact negligent
in any respect, an instruction repeated in effect several times that
they could find for the defendant only if they believed that the
accident was caused by the negligence of the captain while in control
of the defendant, was prejudicial error for which a judgment in
favor of plaintiff will be reversed and a new trial ordered. Rice v.
McAllister Lighterage Line, Inc., 166.

SPECIFIC PERFORMANCE.

1. Action to compel-Title-When plaintiff entitled to judgment.
- In an action to compel specific performance of a land contract,
it appeared that the premises adjoining on the south, and on which
the premises in suit encroached eight and one-half inches, had been
used for over a hundred and twenty years as an open alleyway and
drive, and that the purchasers of the lots bounding thereon and
their grantees have an easement therein. It further appeared that,
although prior to 1893 the alley was not assessed by the city of New
York, it was taxed from that year to 1915, when the assessment
thereof ceased, and though it was sold several times for unpaid taxes
no action to foreclose the tax liens had been brought. Held, that
the purchaser at either of the tax sales took the title burdened with
the easement of the purchasers of the lots adjoining the alley and
that the encroachment complained of in no sense makes the title