SPECIFIC PERFORMANCE—Continued.

unmarketable, and plaintiff is entitled to judgment. Poetzsch v.
Mayer, 422.

2. If title is good at time of trial specific performance in certain
cases will be decreed even if title defective at time of closing —
When the giving of dower would upset the scheme of the will and
the widow has received income from a trust fund in lieu of dower she
is estopped from claiming dower. Wills.- Where at the trial of an
action brought by the purchaser to compel specific performance of
a land contract of which time is not of the essence, the title to the
property is good, the plaintiff may be required to specifically per-
form on his part even though the title was defective at the date of
the closing of title, provided nothing has taken place in the mean-
time to his prejudice which would make performance on his part
inequitable. A contract to convey certain real estate of a testator
having been made by his executors, the intending purchaser, on the
day of closing, rejected the title because of a certain judgment
against the executors which had been assigned and an alleged dower
right of the widow of a former owner of the premises, but the pur-
chaser offered to execute and deliver the purchase money bond and
mortgage called for by the contract and tendered a cash payment
thereunder, on condition that the executors give a conveyance clear
of the objections made to the title. Held, that the reception in evi-
dence, on the trial of an action to compel specific performance
brought by the purchaser, of an instrument in writing purporting
to release the premises in question from the lien of said judgment,
duly recorded and properly indexed, cured the objection to the judg
ment, and that the defendant executors, who also asked for specific
performance, were entitled thereto, it not appearing that such course
would tend to make it inequitable to the plaintiff. It appearing
that to give dower to the widow of the former owner of the property
would necessarily upset the scheme of his will, by which he intended
she should have no dower, and would keep from the testamentary
trustees, who were vested with the title to the entire estate with full
power of sale, a portion thereof, and the widow, having for a
number of years elected in lieu of dower to receive the income of
trust funds into which the proceeds of a sale of real estate by the
said trustees had passed, she would be estopped to set up a claim
of dower in the premises in question. Loria, Inc., v. Stanton Co.,
640.

See Contracts; Landlord and Tenant; Vendor and Purchaser.
STATUTE OF FRAUDS.

See Contracts; Partnership.

STATUTES.

1. Laws of 1920, chap. 942.- The provision of chapter 942 of the
Laws of 1920, in effect September 27, 1920, that no proceeding under
section 2231 (1) of the Code of Civil Procedure "shall be maintain-
able" except under certain circumstances therein specified, was not
intended to be retroactive in the sense that it should apply to pend-
ing proceedings. Nothing in said statute of 1920 indicates that the
legislature intended that the provision in regard to pending pro-

STATUTES - Continued.

ceedings should apply only to those in which a final judgment had
already been entered. Levy v. Baum, 201.

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2. Construction of - Power of board of supervisors to increase
salaries of county officers - County Law, § 12(5) — Laws of 1913,
chap. 293. The legislature having failed to except from the county
officers whose salaries are to be fixed by the board of supervisors
under the broad conditions of section 12(5) of the County Law
notwithstanding any general or special law, the office of commis-
sioner of charities and corrections of Erie county, created by chapter
293 of the Laws of 1913 and the salary fixed thereby, it must be
held that it was the legislative intent that the power to increase
such salaries should remain and be exercised by the board of super-
visors in its discretion, and where the manner of the exercise of
such power has been lawful, the complaint in a taxpayer's action
to restrain the payment of the salary will be dismissed. Wende v.
Board of Supervisors, 250.

3. Interpretation · Power of public service commission to fix
telephone rates· Injunctions Public Service Commissions Law,
§§ 23, 92, 97.— The Public Service Commissions Law neither confers
power upon the public service commission nor imposes the duty
upon it to fix the rates which shall be charged in all cases for tele-
phone service. Under section 97 of the Public Service Commissions
Law the commission has the legal power not only to make orders
fixing maximum rates for telephone service but to abrogate such
orders and consent to an increase of rates. Under the Public
Service Commissions Law the commission, aside from the power
delegated to it by the legislature to fix maximum rates for telephone
service, has power to consent to an increase of rates without deter-
mining what rates are reasonable and should thereafter be observed
as maximum rates, when it appears that the conditions which pre-
vailed when the earlier order was made have materially changed.
The right of the public service commission to consent to an increase
in a rate previously fixed is not subject to any limitation that it
shall be given only after a complete hearing sufficient to enable
the commission to determine the just and reasonable rates to be
charged thereafter. An order of the public service commission
fixing the maximum charges for telephone service is an attempt to
predict for the future the charges that will yield a fair return, and
so long as the Public Service Commissions Law contains no pro-
vision that the commission may not abrogate an order made by it
fixing maximum rates for telephone service or consent to an increase
except as part of an order fixing new rates, the commission, pending
the hearing and determination of an application for an increase in
rates, may consent that the rates fixed and determined by its previous
order be increased by "certain additional percentages." Subject to
the common law rule that no public service corporation may charge
more than a reasonable rate for service, a telephone company may
at will change its rates for telephone service only by filing schedules
in accordance with section 92 of the Public Service Commissions
Law, unless or until the public service commission has by an order
fixed the maximum rates for such service in accordance with said
section of the statute. By virtue of section 23 of the Public Service

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STATUTES Continued.
Commissions Law such an order remains in force only until "changed
or abrogated by the commission," and when such order is abrogated
the right of the telephone company to increase its rates by filing
schedules is exactly the same as before the original order was made.
City of New York v. New York Tel. Co., 262.

4. How far Eighteenth Amendment to the Constitution of the
United States and the Volstead Act abrogate state statutes - Habeas
corpus Laws of 1920, chap. 911.- The Eighteenth Amendment
to the Constitution of the United States and the Volstead Act do
not abrogate previously existing state statutes relative to trafficking
in liquor, except in so far as they may be in open and direct conflict
with the federal statutes. All provisions of state laws which tend
fairly to the enforcement of said amendment and are not in direct
conflict with the Volstead Act, remain unimpaired and may be
enforced by the state courts. The statute (Laws of 1920, chap. 911)
relating to trafficking in "all distilled and rectified spirits, wine,
fermented and malt liquors containing at least one-half of one per
centum of alcohol by weight," though not altogether in harmony with
the so-called Volstead Act, is void only in so far as it conflicts with
the federal statutes. All those provisions constituting the greater
portion of said statute of 1920 and which authorize the granting
of a liquor tax certificate for the sale of liquor containing more than
one-half of one per cent of alcohol and not more than two and
seventy-five hundredths per cent, violate the Federal Constitution,
and any liquor tax certificates issued thereunder are void. Where
certain declarations within the body of said statute of 1920 show
a legislative intent to give effect to the Eighteenth Amendment of
the Federal Constitution and to absolutely prohibit the sale for
beverage purposes of liquor deemed intoxicating, the court is justi-
fied in inferring that such was the dominating intent of the legis-
lature; that the provisions authorizing the sale of liquors containing
not more than two and seventy-five hundredths per cent of alcohol
were subsidiary to the main purpose of the statute, so that even
with the unconstitutional provisions exscinded, the legislature would
still have passed the act. Section 8 of said statute of 1920 which
though providing for excise taxes on trafficking in liquors makes
no provision for the sale of liquor to be drunk on the premises
except, in a city of the first or second class, in a restaurant where
meals are furnished. Held, that as no license could legally be
obtained under the statutes to sell, in such a place, liquor of any
degree of alcoholic content, said section was separable from and
independent of the statutory purpose to permit, under certain
restrictions, the sale of so-called non-intoxicating liquors contain-
ing up to two and seventy-five one-hundredths per cent of alcohol.
An information charging relator with a violation of the statutes
of 1920 is not defective because the alcoholic content of the
whiskey alleged to have been sold by him was not set forth and
upon a traverse to the return to a writ of habeas corpus sued out
by relator pending a hearing upon the information before a magis-
trate he will be remanded. People ex rel. Thomsen v. Comr. of
Correction, 331.

See Tables Consolidated Laws and Session Laws cited, ante,
pp. xliii, xliv; Injunctions; Landlord and Tenant; Municipal
Court of the City of New York.

STOCKBROKERS.

1. Selling out under the rules-Damages. On a Saturday, the
day after a sale of certain securities by plaintiffs, members of the
New York Stock Exchange, to defendants, who are not, a confirma-
tion of the sale was received from defendants, at the foot of which
appeared the following: "All transactions involving the purchase
or sale of securities are made by us subject to the rules and customs
of the Exchange and with the distinct understanding that actual
delivery is to be made." Defendants requested plaintiffs, as matter
of accommodation, to deliver the securities to a certain trust com-
pany. No delivery was made on the following Monday or on the
next day, which was a holiday, and when on Wednesday the securities
were tendered to the trust company they were refused, and, upon
being sold out for defendants' account, in accordance with the rules
of the stock exchange, there was a loss to plaintiffs. The relevant
rule of the Exchange was to the effect that when a delivery is not
made in time, the purchaser may not take advantage of the seller's
default until after giving notice of intention to "close the contract,"
which notice it was conceded had not been given by defendants.
Held, that in an action for defendants' failure to accept the securi-
ties, plaintiffs were entitled to judgment for the difference in the
market value of the securities. A contention of defendants that a
previous decision of this court in which it was held that in an action
in which the defendants herein sued the trust company upon a
corresponding liability with that sought to be enforced in the present
case, the notice at the foot of defendants' confirmation of the sale,
regarding the applicability of the rules of the Stock Exchange, was
not a part of the contract between the parties to that suit, was con-
trolling in the present action, was untenable, and a judgment directed
in favor of defendants in the present action will be reversed with
costs, and judgment directed for plaintiffs in the full amount
claimed, with costs in the court below. Shuman v. Goldsmith, 327.

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2. Misappropriation of stock certificate by an executrix Right
of legatee to maintain action against broker for the recovery of
stock pledged as collateral by executrix-Executors and adminis-
trators. Testator, who at his death was the owner and holder of
three certificates of corporate stock for fifteen, sixty and one hun-
dred and fifty shares respectively, bequeathed twenty-five shares to
his father and twenty-five shares to his mother. One-half of the
residue of his estate he gave to his wife with direction that the other
half should be held by her in trust until his oldest child should have
attained the age of twenty-one years, and that each of his children
should receive a proportionate share in said one-half of such
residuary estate upon arriving at a like age. About fifteen months
after the death of testator his widow, the sole trustee and executrix
of his estate, deposited the certificate for one hundred and fifty
shares of stock with the defendant firm of stockbrokers to sell, with
instructions to purchase other stock for her individual account, and
to hold the stock deposited until sold as margin upon her individual
purchase, and when sold, to apply the proceeds upon her own pur-
chase of stock. The one hundred and fifty shares of stock deposited
were never sold, but are now held as collateral by the stockbrokers
who claim a lien thereon, to secure them for the considerable loss
which the widow sustained in her purchase of stock through them.

In an action against the firm of stockbrokers and the widow as
executrix brought by the only child of testator, now of age and
entitled to receive one-half of the residuary estate of his father,
asking for a construction of the will and that the defendant stock-
brokers be ordered to deliver to the executrix possession of the stock
certificate deposited with them by her, held, that the delivery of
said stock certificate for the personal use of the executrix was a
misappropriation thereof, except in so far as she may have been
entitled to receive a portion of the same as residuary legatee. When
the defendant stockbrokers accepted the stock deposited by the
executrix as collateral for her individual account, with the knowl-
edge that the stock certificate was part of the estate of her deceased
husband, they joined in such conversion and are answerable therefor
as trustee ex maleficio. The plaintiff, while not legally owner of
the whole fund, has a right to compel the executrix to pay to him the
portion thereof to which he is entitled, and such rights having been
impaired by the wrongful action of the executrix and the other
defendant, plaintiff may appeal to a court of equity to right the
wrong and under the authority of Van Camp v. Fowler, 59 Hun,
311, the court has jurisdiction to give complete relief and determine
the title to the fund in dispute. Bailie v. Sheldon, 441.

STRIKES.

See Injunctions.

SUMMARY PROCEEDINGS.

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1. Monthly tenancy. When pleading of notice unnecessary.
Laws of 1882, chap. 203, as amended by Laws of 1920, chap. 209.—
A statute requiring a landlord to give notice of his intention to
terminate a tenancy has no application where the tenancy is termi-
nated by the act of the tenant. Where a petition in summary pro-
ceedings against a monthly tenant holding over without the per-
mission of his landlord alleges that the tenant, about the end of a
certain month, notified petitioner that he would quit and surrender
the premises, located in the city of New York, on the first day of
the succeeding month, the dismissal of the petition for failure to
allege that the landlord had given the tenant the notice required by
chapter 203 of the Laws of 1882, as amended by chapter 209 of
the Laws of 1920, is error, and the final order entered thereon in
favor of the tenant will be reversed and a new trial ordered. A. N.
P. Realty Co., Ine., v. Tunick, 190.

2. When tenant not debarred from pleading defense that rent is
unreasonable - Laws of 1920, chaps. 944, 945.- While the payment
of the first month's rent of premises in the city of New York, several
months after the lease was made, constitutes a ratification thereof
which prevents the tenant from claiming that he executed the lease
under duress, he is not, in a summary proceeding for non-payment
of rent, debarred from pleading under the statute (Laws of 1920,
chaps. 944, 945) the defense that the rent demanded is unreasonable
and oppressive. By pleading such defense the tenant neither dis-
affirms his contract nor is he obliged to relinquish the benefits