Rachel YEDLIN et al., Respondents, v. Harris RUBIN et al., Appellants, Impleaded with Another.

Court of Appeals of New York. Jan. 10, 1928,

Appeal from a judgment, entered March 26, 1927, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department (219 App. Div. 694, 220 Ν. Υ. S. 545), reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiffs. The action was brought to rescind the purchase by plaintiffs of certain real property, to cancel a purchase-money bond and mortgage and to recover the cash paid by them upon the conveyance of the property on the ground of fraud. The evidence shows that one of the plaintiffs, a widow who had received some life insurance on the death of her husband, consulted one of the defendants, an officer of her church in whom she had confidence, as to investment, and on his advice purchased from his son the premises in question; that a portion of the premises were untenanted at the time, but that defendants falsely represented that they were all rented and that the tenants would shortly move in; that no tenants moved in and that a few months after taking title, plaintiff being unable to meet payments due on the mortgage, the same was foreclosed and she lost everything. The Appellate Division held that there was a fiduciary relationship and that defendants knew or should have known that plaintiffs would be unable to carry the property.

Robert H. Wilson and Max L. Kane, both of Brooklyn, for appellants.

Gustave B. Garfield and Maurice V. Selig son, both of New York City, for respondents.

PER CURIAM. Judgment affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

2

Morris ROSENBLUM, Respondent, v. Morris FELLER et al., Copartners Doing Business under the Name of New England Doughnut & Cruller Company, Appellants.

Court of Appeals of New York. Jan. 10, 1928. Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (221 App. Div. 805, 223

N. Y. S. 907), entered July 8, 1927, 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 negligence of defendants. Plaintiff while driving a wagon northerly on North Broadway in the city of White Plains received the injuries complained of as the result of a collision with an automobile owned by defendants. It was contended that the trial court erred in refusing to permit counsel for the insurance company defending the action to prove that defendants were insured against accident and that one of the defendants called as a witness on their behalf had conspired with the plaintiff to mulct the insurance company and had given untrue testimony.

William C. Fiest and F. A. W. Ireland, both of New York City, for appellants.

Charles Edward Long, Francis J. Mahony, and Thomas A. McKennell, all of White Plains, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

3

CHARLES S. CASH, Inc., Respondent, v. Isaac STEINBOOK et al., Appellants.

Court of Appeals of New York. Jan. 10, 1928.

Appeal from a judgment, entered June 4, 1927, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (220 App. Div. 569, 222 N. Y. S. 61), reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term and directing judgment in favor of plaintiff. The action was to restrain the use by defendants in their several stores of blue and orange lettering in such combination as to constitute an imitation and simulation of the plaintiff's windows and store fronts, and from using a trade-mark and trade slogan in simulation of those used and registered by the plaintiff.

Wallace T. Stock, Edwin L. Garvin, and Samuel Weiss, all of New York City, for appellants.

Lewis F. Glaser and Isidor J. Friedman, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CARTER, MACY COMPANY, Inc., Appellant, v. George T. MATTHEWS et al., Respondents.

Court of Appeals of New York. Jan. 10, 1928. Appeal from a judgment, entered June 16, 1927, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (220 App. Div. 679, 222 N. Y. S. 472), reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint. The action was to recover the purchase price of three lots of tea alleged to have been sold to defendants. The only memorandum of the sale was unsigned and before the tea arrived in New York defendants notified plaintiff they would not accept it. The Appellate Division held there was no transfer of title and hence the action for the price could not be maintained and that, furthermore, the defense of the statute of frauds was sustained by the proof.

Edward W. Bourne and Clifton P. Williamson, both of New York City, for appellant. Thomas Gregory and William E. Vogel, both of New York City, for respondents.

PER CURIAM. Judgment affirmed, with costs, on ground there was no transfer of title of the subject-matter of the sale.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

2

In the Matter of the Accounting of William J.

Danaher, as EXECUTOR of Edward C. BALL, Deceased, Appellant. William Ball et al., Appellants; Alice J. Gillen, Respondent.

Court of Appeals of New York. Jan. 10, 1928. Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (221 App. Div. 228, 222 N. Y. S. 463), entered June 3, 1927, which reversed a decree of the Kings County Surrogate's Court, in so far as it disallowed the claim of the respondent herein based upon the following instrument:

"St. Augustine, Fla., April 9, 1923. "On or before sixty days after date, I promise to pay to the order of Alice J. Hunter twenty thousand ($20,000.00), for value received, negotiable and payable at St. Augustine, Florida, or Brooklyn, N. Y.

"It is agreed by the parties hereto that the maker of this note can pay the same in United States Liberty Bonds, or the par value of twenty thousand ($20,000.00) dollars.

"E. Ball. [Seal.]"

The Appellate Division held that the evidence was insufficient to overcome the presumption of sufficient consideration arising from the words "value received."

John J. Cunneen, of New York City, Charles O. Grim, of Brooklyn, and John F. Middlemiss, of New York City, for appellants. Philip J. Britt and Stephen E. Ryan, both of New York City, for respondent.

PER CURIAM. Order affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

3

Alexander J. STAUB, Respondent, v. BLANK FEUER CO., Inc., Appellant.

Court of Appeals of New York. Jan. 10, 1928.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (220 App. Div. 724, 221 N. Y. S. 910), entered April 17, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of

the court on trial at Special Term. The action was in equity to rescind a contract of sale of real property situate at 110 and 116 Cambridge street, in the borough of Brooklyn, upon the ground of fraud. The plaintiff established that the defendant fraudulently represented that a second mortgage of $92,000 contained the usual and customary clauses, whereas in fact the said mortgage contained the following unusual clause:

"The unpaid balance of principal and interest hereby secured shall, at the option of the mortgagee, become forthwith due and payable upon any part of the premises becoming let to, owned or occupied by persons other than of the white race."

Benjamin Reass, Hugo Hirsh, Emanuel Newman, and Leonard F. Manheim, all of New York City, for appellant.

Jacob S. MEHLMAN, Appellant.

Court of Appeals of New York. Jan. 10, 1928.

Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (220 App. Div. 762, 222 N. Y. S. 922), entered June 3, 1927, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover upon a check payment of which had been stopped. The defense was that the check had been given as part of the purchase price of certain real property sold by the plaintiff to the defendant at public auction at which material misrepresentations were made as to the location of the premises, the title thereto, existing mortgages thereon, the rent roll and the nature of the building.

Louis Susman, of New York City, for appellant.

Harry Sena and Leonard Klein, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

2

PEOPLE of the State of New York, Respondent, v. Phillip ECKER and Harry Vishnitzer, Appellants.

Court of Appeals of New York. Jan. 10, 1928. Appeals from a judgment of the Court of General Sessions of the county of New York, rendered July 18, 1927, upon a verdict convicting the defendants of the crime of murder in the first degree.

George Z. Medalie, Morgan A. Jones, and Jacob J. Rosenblum, all of New York City, for appellant Ecker.

Abraham I. Menin, Fiorella La Guardia and Asa S. Herzog, all of New York City, for appellant Vishnitzer.

Joab H. Banton, Dist. Atty., of New York City (Robert C. Taylor, of New York City, of counsel), for the People.

v. Gustav STUMPEL, Respondent.

Court of Appeals of New York. Jan. 10, 1928.

Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (219 App. Div. 771, 220 N. Y. S. 893), entered February 28, 1927, affirming a judgment in favor of defendant entered upon a verdict directed by the court. The action was to recover upon promissory notes made by defendant to a corporation and by it delivered to plaintiff as security for

a loan.

Each note bore upon its face an indorsement as follows:

"This note is given in accordance with the terms of a conditional sales agreement between the payee and the maker hereof."

On the back of each note in addition to other matter was indorsed:

"The within note is subject to the terms of a conditional sales agreement executed by the maker thereof upon this date."

Edward H. Blanc, George S. Mittendorf, and Ramsey Clayton, all of New York City, for appellant.

Raymond Gitlin and William Walzer, both of Brooklyn, for respondent.

PER CURIAM. Judgment affirmed, with costs, upon the ground that the provision in the note to the effect that it is subject to the terms of another agreement not attached thereto makes the promise of payment one that is not absolute on its face and thus destroys negotiability.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

4

Edward GROSSMAN, Respondent, v. LONDON GUARANTEE & ACCIDENT CO., Limited, Appellant.

Court of Appeals of New York. Jan. 10, 1928. Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (219 App. Div. 815, 220 N. Y. S. 861), entered March 18,

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

Appellate Term, affirming a judgment of the Municipal Court of the City of New York, in favor of plaintiff, entered upon a verdict directed by the court. The action was to recover upon a certificate of accident insurance which recited that defendant had issued a policy of accident insurance to the "Travel Club of America," and that plaintiff, a member of said club, was insured thereunder for one year from November 1, 1922, against bodily injuries. Plaintiff was injured May 25, 1923. The defense was that defendant had on February 17, 1923, notified the "Travel Club" that plaintiff's certificate, with others, had been canceled for nonpayment of the premiums.

George F. Hickey, Henry L. Ughetta, and William Butler, all of New York City, for appellant.

Harris Jay Griston and Charles Braunhut, both of New York City, for respondent.

Elfrida MELLISH, Appellant, v. ATCHISON, TOPEKA & SANTA FÉ RAILWAY COMPANY, Respondent.

Court of Appeals of New York. Jan. 10, 1928. Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (215 App. Div. 767, 213 N. Y. S. 857), entered December 28, 1925, unanimously affirming a judgment in favor of defendant entered upon a verdict. The action was to recover for an alleged assault perpetrated by defendant's employees while ejecting plaintiff from one of defendant's trains. The defense was that plaintiff was lawfully ejected for failure to pay the fare of a child over five years of age who accompanied her.

Michael Potter and Edward Potter, both of New York City, for appellant.

Homer W. Davis, of Chicago, Ill., and A. S. H. Bristow, of New York City, for respondent.

CARDOZO, C. J., and POUND, ANDREWS, LEHMAN, and KELLOGG, JJ., concur.

CRANE and O'BRIEN, JJ., not sitting.

2

SMITH & McCRORKEN, Inc., Appellant, v. CHATHAM PHENIX NATIONAL BANK & TRUST COMPANY, Respondent.

Court of Appeals of New York. Jan. 10, 1928.

Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (220 App. Div. 443, 221 N. Y. S. 638), entered May 6, 1927, which reversed an order of Special Term granting a motion by plaintiff for summary judgment and denied said motion.

S. Leighton Frooks and Philip Krieger, both of New York City, for appellant.

Jacob Scholer and James S. Hays, both of New York City, for respondent.

PER CURIAM. Appeal dismissed, with costs.

CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur.

3

PEOPLE of the State of New York, Respondent, v. Isador LEWIS, Appellant.

Court of Appeals of New York. Jan. 10, 1928.

Appeal, by permission from a judgment of the Court of Special Sessions of the City of New York, entered July 8, 1927, which affirmed a judgment of a city magistrate convicting the defendant of the crime of vagrancy as defined in subdivisions 4-e and 4-f of section 887 of the Code of Criminal Procedure.

Leo H. Klugherz and Leonard A. Snitkin, both of New York City, for appellant.

Joab H. Banton, Dist. Atty., of New York City (Robert Daru, of New York City, of counsel), for the People.

PER CURIAM. Judgment affirmed. CARDOZO, C. J., and POUND, CRANE,

O'BRIEN, JJ., concur.