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(161 N.E.)

PENNRICH & COMPANY, Incorporated, Appellant, v. JUNIATA HOSIERY MILLS, Incorporated, Respondent.

Court of Appeals of New York. March 27, 1928.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (220 App. Div. 763, 222 N. Y. S. 869), entered May 27, 1927, which reversed an order of Special Term denying a motion to vacate service of the summons in the above-entitled action upon the grounds that defendant was not doing business within this state nor was the person served its managing agent. Defendant is a foreign corporation having its office and mill in Pennsylvania. Prior to August 16, 1926, Richard J. Nestler was its secretary. On that day he resigned and his successor was elected. Thereafter he came to New York city as sales representative of defendant. His duties were to solicit and receive orders for mer

chandise subject to acceptance or refusal by defendant at its office in Pennsylvania. He maintained an office on the door of which was the name of defendant. Its name was also listed in the telephone directory and in the directory of tenants of the building. As late as November, 1926, the defendant's letter

heads carried the notation "New York Office, 366 Broadway." The summons herein was served upon Nestler at this address in December, 1926. The following questions were certified:

"1. Were the duties of and the authority conferred upon Richard J. Nestler such as to constitute him a managing agent of the defendant corporation within the meaning of subdivision 3 of section 229 of the Civil Practice Act?

"2. Did the Supreme Court of the state of New York obtain jurisdiction of Juniata Hosiery Mills, Incorporated, by service of the summons herein upon said Richard J. Nestler within the state of New York?"

Maurice M. Cohn, of New York City, for appellant.

Emerson F. Davis and Daniel S. Murphy, both of New York City, for respondent.

PER CURIAM. Order affirmed, with costs; second question certified answered in the negative; first question nót answered.

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

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PEOPLE of the State of New York, Respondent, v. David GORDON, Appellant. PEOPLE of the State of New York, Respondent, v. DAILY WORKER PUBLISHING CO., Inc., Appellant.

Court of Appeals of New York. March 27, 1928.

Appeal in the first above-entitled action, by permission, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (222 App. Div. 726, 225 N. Y. S. 879), entered December 2, 1927, which affirmed a judgment of the Court of Special Sessions of the City of New York convicting the defendant of the crime of possessing indecent printed matter in violation of section 1141 of the Penal Law (Consol Laws, c. 40). Appeal in the second aboveentitled action, by permission, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Depart

ment (222 App. Div. 726, 225 N. Y. S. 879), entered December 8, 1927, which affirmed a

judgment of the Court of Special Sessions of the City of New York convicting the defendant of the crime of possessing indecent printed matter in violation of section 1141, of the Penal Law.

Charles Dickerman Williams and Joseph R. Brodsky, both of New York City, for appellants.

Joab H. Banton, Dist. Atty., of New York City (Edwin B. McGuire, of New York City, of counsel), for the People.

PER CURIAM. Judgment in each case affirmed.

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

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Nora HEIMAN, Respondent, v. NEW YORK
LIFE INSURANCE COMPANY,
Appellant.

Court of Appeals of New York. March 27, 1928.

Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (222 App. Div. 654, 224 N. Y. S. 817), entered November 9, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was to recover upon a policy of life insurance. The insured was found dead upon the sidewalk in front of the apartment house where he resided. The question was whether death resulted from suicide or from accident.

Ferdinand H. Pease and Louis H. Cooke,
both of New York City, for appellant.
Mark E. Cymrot and T. J. Gillen, both of
Brooklyn, and Harry Fieldsteel, 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

Walter VOGEL, Respondent, v. UNION DIME
SAVINGS BANK, Appellant.

Court of Appeals of New York. March 27, 1928.

Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (221 App. Div. 881, 224 N. Y. S. 933), entered October 28, 1927, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term, and granting a new trial in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff, entering defendant's building pushed against the casing of a revolving door. The door turned, but suddenly stopped, and the glass in front of plaintiff fell out causing him injury.

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

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DOWD & CLEMENS, Inc., Respondent, v.
Emily K. GOODWIN et al., Appellants.
Court of Appeals of New York. March 27, 1928.

Appeal from a judgment of the Appellate
Division of the Supreme Court in the First
Judicial Department (222 App. Div. 737, 226
N. Y. S. 801), entered December 27, 1927, af-
firming a judgment in favor of plaintiff enter-

ed upon a verdict. The action was to recover real estate broker's commissions on the making of a lease. The question was whether the lease referred to was the result of plaintiff's efforts or whether another broker was the procuring cause.

James E. Duross, of New York City, for appellants.

Louis L. Archer and Joseph V. Mitchell, 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.

Augusta RUKEYSER, Respondent, v. ALA-
BAMA HOLDING CORPORATION,

Appellant.

Court of Appeals of New York. March 27, 1928.

Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (221 App. Div. 858, 224 N. Y. S. 902), entered November 3, 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 defendant. Plaintiff, a tenant in defendant's building, was about to enter one of its elevators when a child standing near the operator pulled the lever which controlled the movement of the car. It dropped about 18 inches causing plaintiff to fall, from which

Alfred W. Andrews and Irving H. Schafer, both of New York City, for appellant. Almet R. Latson, Jr., of New York City, for she received the injuries complained of. respondent.

PER CURIAM. Order affirmed, and judgment absolute ordered against appellant on the stipulation, with costs in all courts.

Walter G. Evans, William G. Walsh, and Grattan B. Shults, all of New York City, for appellant.

Manton Marks, of New York City, for respondent.

(161 N.E.)

PER CURIAM. Judgment affirmed, with defendant was guilty of contributory negligence as matter of law.

costs.

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Margaret KEANE, as Administratrix of the Estate of John Keane, Deceased, Respondent, v. NINTH AVENUE RAILROAD COMPANY, Appellant, Impleaded with Another.

Court of Appeals of New York. March 27, 1928.

Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (222 App. Div. 663, 225 N. Y. S. 845), entered November 25, 1927, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been caused through the negligence of defendant. Intestate while crossing Amsterdam avenue at Ninety-Sixth street in the city of New York was struck by one of defendant appellant's south-bound cars and received injuries from which he died.

William J. Curtin and Michel Kirtland, both of New York City, for appellant. Milton Speiser and Joseph Speiser, both of New York City, for respondent.

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Frank T. WOOD, Appellant, v. WOODLAWN IMPROVEMENT ASSOCIATION TRANSPORTATION CORPORATION, Respondent. Court of Appeals of New York. March 27, 1928. Appeal from a judgment, entered June 2, 1926, upon an order of the Appellate Division of the Supreme Court in the Third Judicial Department (215 App. Div. 628, 214 N. Y. S. 398), reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while crossing Broadway at its intersection with State street in the city of Albany was struck by one of defendant's automobile buses and received the injuries complained of. The Appellate Division held that on the evidence

Charles E. Brennan, of Albany, for appellant.

Neile F. Towner, of Albany, and Robert H. Woody, of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

concur.

KELLOGG, J., not sitting.

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George S. ABELL, Respondent, v. CORNWALL INDUSTRIAL CORPORATION, Appellant. Court of Appeals of New York. March 27, 1928.

Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (222 App. Div. 689, 224 N. Y. S. 741), entered December 12, 1927, affirming a judgment in favor of plaintiff entered upon a verdict. The action was for libel. The defenses were justification, privilege and mitigation. See 241 N. Y. 327, 150 N. E. 132, 43 A. L. R. 880.

A. W. Bennet and Graham Witschief, both of Newburgh, for appellant.

Henry Hirschberg, of Newburgh, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

In the Matter of Joseph F. STILLMAN et al., Respondents, against the BOARD OF STANDARDS AND APPEALS OF THE CITY OF NEW YORK et al., Appellants. Court of Appeals of New York. March 27, 1928.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (222 App. Div. 19, 225 N. Y. S. 402), entered December 2, 1927, which reversed, on certiorari, a determination of the Board of Standards and Appeals of the city of New York granting the application of appellant Fortieth Street & Park Avenue, Inc., for a variance of the building zone resolution in force in the city of New York, so as to permit it to erect and

maintain a business building in a residence bags containing merchandise in a taxicab in district. The Appellate Division held that the Board of Standards and Appeals was without power to vary a zoning requirement because it would benefit a single owner to remove a restriction.

George P. Nicholson, Corp. Counsel, of New York City (Elliot S. Benedict, J. Joseph Lilly, and William T. Kennedy, all of New York City, of counsel), for appellant Board of Standards and Appeals.

Charles L. Craig, of New York City, for appellant Fortieth Street & Park Avenue, Inc.

E. De T. Bechtel, of New York City, for respondents Joseph F. Stillman and others. Kenneth M. Spence, of New York City, for respondent Fox.

M. G. Holstein, of New York City, for respondent 104 East Fortieth Corporation.

PER CURIAM. Order affirmed, with costs.

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

which she was a passenger and on arrival at her destination alighted leaving the bags therein. On her return after five minutes she found the bags had been stolen.

Wilbert J. Ryder, of New York City, for appellant.

Louis Cohn, of New York City, for respondent.

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PEOPLE of the State of New York ex rel. Edward HAASE et al., Respondents, v. Henry M. GOLDFOGLE et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.

Court of Appeals of New York. March 27, 1928.

Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (222 App. Div. 834, 226 N. Y. S. 883), entered January 19, 1928, which affirmed, on certiorari, an order of Special Term reducing an assessment on real property of the relator for purpose of taxation for the year 1926, on the ground that the improvement, comprising a one-family dwelling, was partially exempt from local taxation under section 4-b of the Tax Law (Consol. Laws, c. 60) and an ordinance of the city of New York relating to exemption from local taxation of new buildings for dwelling purposes.

Myrtle B. LYNCH, Doing Business under the Firm Name of Myrtiles, Appellant, v. AMERICAN EAGLE FIRE INSURANCE COMPANY OF NEW YORK, Respondent. Court of Appeals of New York. March 27, 1928. Appeal from a judgment, entered April 15, 1927, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (220 App. Div. 196, 221 N. Y. S. 4), reversing a judgment in favor of plaintiff, entered upon a verdict and directing a dismissal of the complaint. The action was to recover upon a policy of insurance "on trunks and samples of merchandise" in the charge or control of the assured or their traveling representatives "while in the custody of any transportation company, or while in automobiles, or while in the custody of any win, both of Brooklyn, for respondents. common carrier in transit," subject to the exception that it did not insure against loss by theft "of property in the custody of the assured or their traveling representatives and/or on railroad cars, steamship, or other carriers or conveyances." Plaintiff placed

George P. Nicholson, Corp. Counsel, of New York City (William H. King and Harry S. Lucia, both of New York City, of counsel), for appellants.

Jackson A. Dykman and Walter C. Good

PER CURIAM. Order affirmed, with costs.

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

1

(161 N.E.)

In the Matter of the Claim of Jeannette AIERLO against Isidore HAFT et al., Respondents. State Industrial Board, Appellant. Court of Appeals of New York. March 27, 1928. Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (222 App. Div. 708, 224 N. Y. S. 742), entered January 4, 1928, reversing an award of the State Industrial Board made under the Workmen's Compensation Law and dismissing the claim. The employer was a dress manufacturer, occupying part of the third floor of the premises at 106 West Thirty-Second street, New York City. The claimant was employed as a sample maker. On the day in question she left her work to go to the ladies' room, which necessitated her going outside of the employer's premises and into a public hall. While in the hall she was assaulted by a strange man. For the injury received she was awarded compensation by the State Industrial Board. The Appellate

Division dismissed the claim, on the ground that the accident did not arise out of the employment.

Albert Ottinger, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for appellant. John S. Breckinridge, of New Rochelle, and William H. Hotchkiss, of New York City, for respondents.

Board made under the Workmen's Compensation Law (Consol. Laws, c. 67). Claimant and two others organized a corporation to engage in the business of painting and decorating. He was elected vice president and treasurer. He was also employed by the corporation as "inside man" or "supervisor" at a stated salary. While engaged in loading a motor truck with painting supplies he received injuries for which the State Industrial Board awarded compensation. The insurance carrier contended that claimant was not an employee within the meaning of the Workmen's Compensation Law.

Barnett Cohen, William E. Lyons, and Frank J. O'Neill, all of New York City, for appellant.

Albert Ottinger, Atty. Gen. (E. C. Aiken,

Deputy Atty. Gen., of counsel), for respond

ents.

PER CURIAM. Order affirmed, 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. Thomas HYLAND, Appellant.

PER CURIAM. Order affirmed, with costs Court of Appeals of New York. March 27, 1928. against State Industrial Board.

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

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In the Matter of the Claim of Jack GOLDIN, Respondent, V. GOLDIN DECORATING COMPANY, Respondent, and Royal Indemnity Company, Appellant. State Industrial Board, Respondent.

Court of Appeals of New York. March 27, 1928.

Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (222 App. Div. 780, 225 N. Y. S. 827), entered December 15, 1927, affirming an award of the State Industrial

Appeal from a judgment of the Court of General Sessions of the County of New York, rendered November 28, 1927, upon a verdict convicting the defendant of the crime of murder in the first degree.

Henry A. Lowenberg, Edwin M. Stanton, and Abraham Eisenstat, all of New York City, for appellant.

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

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