Edith DORNBUSCH, Respondent, v. William Appeal from a judgment of the Appellate Division of the Supreme Court in the first Judicial Department, entered May 31, 1927 (220 App. Div. 759, 222 N. Y. S. 798), affirming a judgment in favor of plaintiff entered upon a verdict. The action, wife against husband, was to recover money alleged to have been loaned. The answer denied the making of the alleged loans and as a separate defense alleged that plaintiff had turned over to defendant a sum of money for safekeeping which he had repaid. See, also, 245 N. Y. 650, 157 N. E. 895. John H. Jackson, of New York City, for appellant. Benjamin Frindel, 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. 3 Frederick W. WHITE, Respondent, v. Clarence M. BUSCH, 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 (220 App. Div. 829, 222 N. Y. S. 921), entered June 28, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action was to recover an amount alleged to be due and owing under a pooling agreement between two stockholders of a corporation whereby, it is alleged, they agreed to pool and divide pro rata, according to their investment, certain moneys due and owing to them. Isaac R. Oeland, of New York City, for appellant. John J. Cunneen, 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 Joseph WOLF, Appellant, v. STATE of New York, Respondent. Court of Appeals of New York. Jan. 10, 1928. Appeal from a judgment, entered January 20, 1927, upon an order of the Appellate Division of the Supreme Court in the Third Judicial Department (219 App. Div. 584, 219 N. Y. S. 348), reversing a judgment in favor of plaintiff entered upon an award of the Court of Claims and directing a dismissal of the claim on the ground that plaintiff had failed to comply with section 15 of the Court of Claims Act (Laws 1920, c. 922), providing that either the written claim or written notice of intention to file a claim shall be filed with the clerk of the Court of Claims and the Attorney General within six months after the claim accrued. Max Dorff, of New York City, for appellant. Albert Ottinger, Atty. Gen. (James Gibson, Deputy Atty. Gen., of counsel), for the State. PER CURIAM. Judgment affirmed, with costs. CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur. 4 In the Matter of the Probate of the WILL OF Robert G. McCLEAR, Deceased. Robert E. McClear et al., Appellants; Sarah A. McClear, Respondent. Court of Appeals of New York. Jan. 10, 1928. Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (214 App. Div. 683, 213 N. Y. S. 66), entered December 23, 1925, which reversed a decree of the Jefferson County Surrogate's Court denying probate of a paper propounded as the last will of Robert G. McClear, deceased, and remitted the matter to the Surrogate's Court with a direction to admit the will to probate. The will was contested on the ground that at the time of its making the testator was mentally incompe tent. Nathaniel F. Breen, of Watertown, for ap pellants. Delos M. Cosgrove and Loren E. Harter, both of Watertown, for respondent. PER CURIAM. Order affirmed, with costs. CARDOZO, C. J. and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur. 1 PEOPLE of the State of New York, Respondent, v. Dominick BUSH, Appellant. Court of Appeals of New York. Jan. 10, 1928. Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (215 App. Div. 860, 213 N. Y. S. 876), entered January 13, 1926, which affirmed a judgment of the Oneida County Court rendered upon a verdict convicting the defendant of the crime of manslaughter in the second degree in having caused death through his culpably negligent operation of an automobile. N. Y. S. 821; 219 App. Div. 787, 220 N. Y. S. 857. PER CURIAM. Motion for reargument denied, with $10 costs and necessary printing disbursements. James PENDERGAST, Appellant, v. GLOBE & RUTGERS FIRE INSURANCE COMPANY OF THE CITY OF NEW YORK, Respondent. Court of Appeals of New York. Jan. 17, 1928. For former opinion, see 246 N. Y. 396, 159 Leo O. Coupe and James Coupe, both of N. E. 183. See, also, 219 App. Div. 864, 221 Utica, for appellant. Charles L. De Angelis, Dist. Atty., of Utica, for the People. PER CURIAM. Judgment affirmed. CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur. 2 PEOPLE of the State of New York, Respondent, v. Harry ZIERLER, 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 (220 App. Div. 825, 222 N. Y. S. 878), entered June 17, 1927, which affirmed a judgment of the Court of Special Sessions of the City of New York convicting the defendant of knowingly making a false financial statement in violation of section 1293-b of the Penal Law (Consol. Laws, c. 40). Bennett E. Siegelstein, of New York City, for appellant. Joab H. Banton, Dist. Atty., of New York City (William B. Moore, of New York City, of counsel), for the People. PER CURIAM. Judgment affirmed. CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur. N. Y. S. 874; 220 App. Div. 805, 222 N. Y. S. 869. PER CURIAM. Motion for reargument denied, with $10 costs and necessary printing disbursements. (161 N.E.) Department (218 App. Div. 778, 218 N. Y. S. 772), entered November 5, 1926, which reversed in part an order of Special Term denying a motion to open a default and set aside a judgment. The motion was made for the purpose of simplifying proceedings in the court below. Nathan D. Shapiro, of Brooklyn, for motion. Frank J. O'Neill, of New York City, opposed. PER CURIAM. Motion denied, unless within 10 days appellant pays all costs of appeal to this court and $10 costs of motion, in which case it is granted. Hyman KOFFLER, Respondent, v. HERTZ DRIVURSELF STATIONS, Inc., Appellant. Court of Appeals of New York. Jan. 17, 1928. Motion for leave to withdraw an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (222 App. Div. 679, 224 N. Y. S. 834), entered November 4, 1927, reversing on the facts a judgment in favor of defendant entered upon a verdict and granting a new trial. The motion was made on the ground that the appeal had been inadvertently taken. James A. Nooney, of New York City, and John D. O'Neil, for the motion. Laurence A. Steinhardt, of New York City, opposed. PER CURIAM. Motion granted upon the following conditions: (1) The defendant shall stipulate that the action shall not abate in the event of the plaintiff's death. (2) The defendant shall pay the costs of the appeal to date and $10 costs of motion within 10 days. If these conditions are not complied with within 10 days, the motion is denied, with $10 costs. 2 (247 N. Y. 548) RAY D. LILLIBRIDGE, Inc., v. JOHNSON BRONZE CO. Court of Appeals of New York. Jan. 20, 1928. Corporations 642 (42)-Foreign corporation held not "doing business" within state, so as to be subject to jurisdiction of its courts, because of individual soliciting orders and maintaining office. A foreign corporation which neither has office, nor has qualified to do business, in the state, is not "doing business" within the state, so as to be subject to the jurisdiction of its 161 N.E.-12 See, also, 220 App. Div. 841, 222 N. Y. S. 886. Defendant is a foreign corporation having its principal office and factory in the state where incorporated. It has no office in New York and has not qualified to do business in this state. This action was to recover for an alleged breach of contract. Service of the summons and complaint was made upon an alleged managing agent of defendant. The facts show that he was engaged in the business of soliciting orders for several concerns, including the defendant. He maintained his own office and on his own authority placed defendant's name in the telephone book and on his office door followed by his name and the word "manager." The following questions were certified: service of the summons herein, doing business "(1) Was the defendant, at the time of the within the state of New York in such a sense and in such a degree as to subject it to the jurisdiction of the courts of the state of New York? "(2) Were the duties of and the authority conferred upon Edward Laterman, the defendant's sales agent, such as to constitute him a managing agent of the defendant corporation within the meaning of section 229, subdivision 3, of the Civil Practice Act?" Gilbert H. Montague, Joseph W. Goodwin, and John K. Holbrook, Jr., all of New York City, for appellant. E. Raymond Shepard and Hiram C. Todd, both of New York City, for respondent. PER CURIAM. Order affirmed, with costs, on the authority of Hamlin v. Barrett & Co., 246 N. Y. 554, 159 N. E. 648. First question CARDOZO, C. J., and POUND, CRANE, ANDREWS, LEHMAN, KELLOGG, and O'BRIEN, JJ., concur. 3 (247 N. Y. 551) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (221 App. Div. 831, 224 N. Y. S. 799), entered October 7, 1927, affirming an award of the State Industrial Board made under the Workmen's Compensation LANG et al. v. BROOKLYN CITY R. CO. Law (Consol. Laws, c. 67). Claimant, a sign painter, was injured through the falling of a scaffold on which he was working. Appellants contended that he was not an employee, but an independent contractor. In the Matter of the Claim of Peter W. BIEL- Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (222 App. Div. 706, 224 N. Y. S. 758), entered December 7, 1927, affirming an award of the State Industrial Board made under the Workmen's Compensation Law (Consol. Laws, c. 67). Claimant while repairing a compressed air line in one of defendant's yards in the regular course of his employment, received an injury which destroyed the sight of his right eye. Defendant contended that the air line was a necessary instrumentality for the proper movement of interstate trains through the yard in question; that therefore claimant was engaged in interstate commerce and the State Industrial Board was without jurisdiction to make the award. et al. Court of Appeals of New York. Jan. 20, 1928. Master and servant 400-Workman, paid by insurance carrier, and assigning to it his cause of action for injury, held not proper party plaintiff in action, notwithstanding carrier's declaration of trust as to surplus recovery (Workmen's Compensation Law § 29). has been paid a lump sum as compensation by Where a workman, injured by third parties, an insurance carrier, and has assigned his entire cause of action against them to the carrier, pursuant to Workmen's Compensation Law, $29 (Consol. Laws, c. 67), though the carrier thereafter irrevocably declares itself a trustee for the benefit of the workman of any surplus that may be recovered from the neg ligent third parties, over and above what the carrier has paid to the workman as compensation, such declaration of trust does not constitute the workman a party in interest so that he may be properly joined with the carrier as a plaintiff in action against the third parties; the declaration not creating an interest in favor of the cestuis que trust in advance of recovery or collection by the trustee. Appeal from Supreme Court, Appellate Division, First Department. Action by Thomas Lang and the Employers' Liability Assurance Company, Limited, of London, England, against the Brooklyn City Railroad Company and the Brooklyn Union Gas Company. From an order of the Appellate Division (217 App. Div. 501, 217 N. Y. S. 277), which affirmed an order of Special Term granting a motion of the last named defendant to strike from the complaint the name of Thomas Lang as a party plaintiff, plaintiffs appeal by permission; the court certifying a question for answer. Order affirmed, and question answered. See, also, 218 App. Div. 760, 218 N. Y. S. 795. The following question was certified: (161 N.E.) "Where a workman has been paid a lump sum as compensation by an insurance carrier, and has assigned to the carrier his entire cause of action against third parties for damages by reason of injuries caused by the negligence of said third parties, pursuant to section 29 of the Workmen's Compensation Law (Consol. Laws, c. 67), if the insurance carrier thereafter irrevocably declares itself a trustee for the benefit of the workman of any surplus that may be recovered, by way of judgment or settlement, in any action or otherwise, as damages for said injuries from the negligent third parties, over and above what the carrier has paid to the workman as compensation, does such declaration of trust constitute the workman a party in interest so that he may be properly joined with the insurance carrier as a coplaintiff in an action against the negligent third parties?" Joseph Lorenz and John F. X. Finn, both of New York City, for appellants. evidence to sustain the claim that it was negligently manufactured. Benjamin Pepper, Dennis F. O'Brien, Arthur F. Driscoll, and Edward C. Raftery, all of New York City, for appellant. Francis J. MacIntyre and Michael F. Dee, 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 MAX FINE & SONS, Inc., Respondent, v. The LINDAROSE, Inc., et al., Defendants, and Wolf Gelband, Appellant. Maximilian Moss and Jackson A. Dykman, Court of Appeals of New York. Jan. 20, 1928. both of Brooklyn, for respondent. Mark L. DUNN, Appellant, v. JAMES SHEWAN & SONS, Inc., Respondent. Court of Appeals of New York. Jan. 20, 1928. Appeal from a judgment, entered March 22, 1927, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (219 App. Div. 805, 220 N. Y. S. 848), reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover damages for injuries sustained by the plaintiff in falling from a ladder into the hold of a vessel. Plaintiff contended that the defendant built the ladder and built it so negligently that upon use by the plaintiff, one of the rungs pulled out, precipitating the plaintiff to the bottom of the ship and causing him to fracture his arm. The Appellate Division held that there was no evidence to warrant the jury's finding that the ladder which broke was manufactured or furnished by the defendant and insufficient Motion to dismiss an appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (220 App. Div. 616, 221 N. Y. S. 690), entered May 6, 1927, affirming a judgment in favor of plaintiff entered upon the report of a referee. The motion was made upon the grounds that appellant had failed to file the required undertaking and return and prosecute the appeal. Samuel W. Dorfman, of New York City, for the motion. Samuel Okin, of New York City, opposed. PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion, unless appellant gives the statutory undertaking and files the return within 10 days, and pays within said time $10 costs, in which event motion will be denied. 3 In the Matter of the Application of Horace W. DRESSER, Appellant. Donner Steel Company, Inc., Respondent. Court of Appeals of New York. Feb. 14, 1928. Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (221 App. Div. 786, 223 N. Y. S. 864), entered July 5, 1927, which affirmed an order of Special Term denying a motion for the appointment of appraisers to appraise the value of petitioner's stock in the Donner Steel Company, Inc., pursuant to subdivision 12 of section 38 of the Stock Corporation Law (Consol. Laws, c. 59). |