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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, anto,

pp. xliii, xliv; Injunctions; Landlord and Tenant; Municipal
Court of the City of New York.


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.

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.


See Injunctions.


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., Inc., 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

received thereunder, and a failure to claim the right granted to him
by the statute, to continue in possession of the premises upon the
payment of a reasonable rent, is not waived by his failure to avail
himself of such right at the first opportunity. B. & S. Realty Cor-
poration v. Wald, 195.

3. When motion directing clerk of the court to deliver warrant
denied Landlord and tenant Pending proceeding Statutes
Laws of 1920, chap. 942.— Until the warrant in a summary pro-
ceeding is actually issued, the proceeding is pending within the
meaning of chapter 942 of the Laws of 1920, even though a final
order has been entered in the proceeding. Where a tenant obtained
the right to continue in possession of the premises after September
8, 1920, solely because of a stipulation made in a summary proceed-
ing to leave the premises peaceably on September 30, 1920, the land-
lord consented to stay the execution of the final order and the court
granted a stay until September 30, 1920, and the tenant, relying
upon the provisions of chapter 942 of the Laws of 1920, in effect
September 27, 1920, refuses to give up possession on the thirtieth,
a motion for an order directing the clerk of the court to deliver to
the landlord the warrant in the summary proceeding as of September
8, 1920, was properly denied, as until the warrant actually issued
the summary proceedings are pending. Tauszig v. Kantor, 366.

4. When final order in, reversed Statutes Co-operative cor-
porations Landlord and tenant Attornment Laws of 1920,
chap. 942.- The co-operative plan of holding property to be used
for dwelling purposes, authorized by chapter 942 of the Laws of
1920, must cover the entire building. Where in a proceeding under
said statute to recover possession of an apartment in a building in
the city of New York alleged to be owned by a corporation under
the co-operative plan authorized by said statute, it appears that the
alleged corporation is merely a substitute to evade the statute; that
there are two vacant apartments; that several are held under plural
ownership; that one was rented without lease or stock as required
by the statute; that persons and an outside corporation owning
more than one apartment clearly do not want them for their own
use but for speculation, and that the petitioner is simply a stock-
holder in the alleged co-operative corporation claiming to attorn to
it for rent collected, a final order in the summary proceeding award-
ing him possession of the premises will be reversed with costs, and
the petition dismissed on the ground that it was established that
there was not such “ good faith” in the sale of the property to the
corporation as the statute requires. Ravitz v. Simetz, 406.

5. When tenant waives right to object to defects in proceedings
Jurisdiction - Landlord and tenant - Code Civ. Pro. 8 2231(la).
-- The technical rules that once were in vogue in summary proceed-
ings should no longer prevail. The amendment (Laws of 1920,
chap. 942) to section 2231 of the Code of Civil Procedure consists
of the insertion of a new subdivision, la, which provides “No pro-
ceeding as prescribed in subdivision 1 of this section shall be main-

tainable to recover the possession of real property • • • occupied
for dwelling purposes except * * * or a proceeding where the
owner of record of the building being a natural person seeks in
good faith to recover possession of the same ** * for the im-
mediate and personal occupancy by himself and his family as a
dwelling." Held, that in a summary proceeding against a tenant
holding over based upon the claim that one of the landlords wished
the property for his own residence, it was not necessary that the
petition should allege either that the landlord is a " natural person"
or the “owner of record” of the property. The court having gen-
eral jurisdiction of the subject matter the failure to allege any fact
essential to give jurisdiction of the person might be waived by the
tenant. Where the tenant made no mention of the alleged defect in
the petition until after the trial had closed and then not until it was
pointed out by the court and the landlord's deed showing that he
was the owner of record of the property was received in evidence
without objection, the landlord's right to maintain the proceeding
was fully established and the tenant's right to object to the petition
as defective was waived. Kaplan v. Bernstein, 413.

6. Non-payment of rent — When court has power to adjudicate
reasonable amount of rent - Landlord and tenant Statutes
Code Civ. Pro. ]2231, 2244.- Where the petition in a summary
proceeding under section 2231 of the Code of Civil Procedure as
amended by chapter 945 of the Laws of 1920, for non-payment of
rent, alleges that the rent involved is no greater than the amount for
which the tenant was liable for the month next preceding his default,
and the tenant pleads that the rent demanded is unjust and unrea-
sonable and that the agreement, therefore, is oppressive, the court,
upon findings that such rent is excessive, has power under section
2244 of the Code of Civil Procedure, as amended by chapter 137 of
the Laws of 1920, to adjudicate what is the reasonable amount of
rent. Needelman v. Levine, 419.

7. Landlord and tenant Improving existing building is not
" demolishing the same with the intention of constructing a new
building" Laws of 1920, chap. 942.- The plans and specifica-
tions for changes in a seven-story corner apartment house in the
city of New York were designed to convert it into a building to
provide for twenty-five families, and, in substance, the physical
changes consisted in the removal of a great many partitions, the
installation of two new bathrooms and toilets on each floor, the
introduction of new dumbwaiter shafts and new plumbing through-
out the building and the erection of an additional fire escape, but
no interference was contemplated with the foundations, walls, roofs
or floors. Held, that there was no intention to demolish the build-
ing for the purpose of erecting a new one, within the meaning of
chapter 942 of the Laws of 1920, and a final order in favor of the
landlord in summary proceedings will be reversed and the petition
dismissed. Rosman Realty Corporation v. Quinn, 510.

See Landlord and Tenant; Municipal Court of the City of

New York.

See Criminal Procedure; Jurisdiction.

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