years after its date, was modified by permitting the plaintiff to lease the play to stock companies, and providing that the receipts received from such leasings should be at the rate of 50 per cent. to each of the parties to the contract. When the play was originally produced, it was only in first-class theaters, in which the price for orchestra seats was $2 in large cities and $1.50 in other cities, the price for other parts of the theaters being relatively smaller; but when the play was performed in so-called stock theaters-that is, theaters run by stock companies-the prices varied from $1 to 15 cents, according to the city, theater, and location of seats. Clyde Fitch died on September 4, 1909, and all his property, including his rights under the contract referred to, passed to his father, the defendant William G. Fitch. In March, 1914, William G. Fitch entered into a contract with the defendant American Play Company by which he assumed to grant to it the right to produce the play throughout the United States and Canada by means of moving pictures, and the Play Company has publicly announced that it intends to produce the play in that way. According to the agreed statement of facts, the Play Company knew of the original and subsequent contracts between Clyde Fitch and the plaintiff when it entered into the contract with William G. Fitch. The defendant's counsel conceded, upon the argument of the question presented, that a moving picture presentation of the play in the manner contemplated by the Play Company would constitute the production of a play, but contends that the right to such a production was reserved to Clyde Fitch, and upon his death passed to William G. Fitch. This contention is based upon the argument that, at the time the contract was entered into, neither of the parties contemplated production of the play by means of moving pictures. Even though it be conceded that neither of the parties had in mind the production of the play in that manner, nevertheless I think it is a clear violation of the contract to permit the play to be so produced. The contract, as we have seen, gave to the plaintiff the "exclusive right to produce or to have produced the said play in the United States of America and in Canada." This exclusive right was to protect the plaintiff in the property which he had purchased. That the plaintiff's rights under the contract constituted property cannot be questioned. That by the aid of science it has, since the contract was executed, been made possible to produce the play in some manner not then contemplated, does not give William G. Fitch, nor the American Play Company, the right to destroy plaintiff's property or diminish the value of what he purchased. The fact that the plaintiff agreed to produce the play only in firstclass theaters and in a first-class manner does not contemplate that the author of the play reserved to himself the right to produce it in a second-class theater in a second-class manner. On the contrary, provision was inserted in the contract to protect the author of the play, by insuring to him that his production should only be produced in a credible place and in such a way as would add to his reputation. this If the foregoing view be correct, then the plaintiff is entitled to a judgment enjoining and restraining the defendants from producing the play in the manner contemplated, with costs. All concur. GUTTING et al. v. EIERMANN. (Supreme Court, Appellate Division, Second Department. November 6, 1914.) Where, upon the sale of lots in a residential subdivision, restrictive covenants which were stated to be for the benefit of all purchasers were imposed, the grantor, having sold the whole tract, cannot release lots from the restrictions, for the covenants were not personal, or for the benefit of the grantor, but were for the benefit of the purchasers. [Ed. Note.-For other cases, see Covenants, Cent. Dig. § 74; Dec. Dig. § 73.*] Appeal from Special Term, Queens County. Action by Gustave A. Gutting and others against Othilda Eiermann. James A. Sheehan, of Brooklyn, for appellant. PER CURIAM. The terms of the restrictive covenants created in the laying out and sales of the building lots in Forest Park East were not for the personal benefit of Mr. Archer, the original grantor, but by their expressed terms were also "for the use of each and all the persons who may purchase or derive title through or from them to any part of the tracts of land laid down on the aforesaid map." Hence they were designed to secure a residential neighborhood for the common advantage of the several purchasers. Mr. Archer's sale of the entire tract which he had thus restricted ended his interest in these covenants. In re Birmingham & District Land Co. [1893] 1 Chan. 342; McDougall v. Schneider, 134 App. Div. 208, 118 N. Y. Supp. 861; White v. Moore, 161 App. Div. 400, 146 N. Y. Supp. 593; Thompson v. Diller, 161 App. Div. 98, 146 N. Y. Supp. 438. Therefore Mr. Archer's attempt to modify these covenants after he had disposed of the lots and become a stranger to the title was nugatory as to the other lot owners, who had purchased on the faith of these restrictions. Such a release would in effect destroy the value of the lots sold, by authorizing a use of a part of the estate for a purpose inconsistent with the restriction by which Mr. Archer had professed to bind the whole. The judgment is therefore affirmed, with costs. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes (164 App. Div. 180) PEOPLE ex rel. LENAHAN v. GRIFENHAGEN, Register of New York County. (No. 6103.) (Supreme Court, Appellate Division, First Department. November 6, 1914.) OFFICERS (§ 72*)-REMOVAL-MISCONDUCT EVIDENCE. On evidence in a proceeding to review the dismissal of a Spanish War veteran, held, that a finding that relator had been guilty of misconduct in willfully absenting himself without leave, and without notice of his sickness or inability to appear for work, was not against the weight of the evidence. [Ed. Note. For other cases, see Officers, Cent. Dig. §§ 101-103, 105-107; Dec. Dig. § 72.*] Certiorari by the People, on the relation of Eugene T. Lenahan, against Max F. Grifenhagen, as Register of the County of New York, to review proceedings of the respondent in removing relator from the position of clerk in the office of the Register of the County of New York. Writ dismissed, and proceedings affirmed. Argued before INGRAHAM, P. J., and MCLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ. Ernest W. Kelsey, of New York City, for relator. Terence Farley and Leon N. Futter, both of New York City, for respondent. INGRAHAM, P. J. The relator was a Spanish War veteran. He was appointed in May, 1901, as recording clerk in the office of the register of the county of New York and held that position until July, 1904, when he was promoted to the position of clerk in the office of the register, and held that position until May 18, 1912, when he was dismissed from his position. His dismissal was the result of a hearing before the register, based upon certain charges presented. Those charges were that the relator had willfully and without leave absented himself from the register's office on February 5 and 6, 1912, and that he had failed to notify the register's office during the forenoon of February 5th that he was sick or unable to appear for work on that day; that he neglected to obey an order of the chief clerk of the register's office over the telephone on February 5, 1912, to appear at the register's office immediately. Subsequently other charges were presented against the relator, that he willfully and without leave absented himself from the register's office on February 15, 16, 17, 19, 20, 21, 23, 1912, and that he willfully neglected and failed to notify any of his superior officers at the register's office during the forenoon of February 15, 1912, that he was sick or unable to appear for work on that day, and of the cause of his absence, and where he could be found. On the hearing before the register, he introduced testimony tending to show that he was sick on those days. The register, by his return to the writ, says that after duly and carefully considering the charges and specifications against the relator and the testimony of the witnesses in support of both sets of charges, and also the testimony and exhibits offered and received in For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes behalf of the relator in support of his defense to said charges, and after the exercise of his best judgment and discretion, he determined that the relator was guilty of both of said charges of misconduct, and he dismissed the relator from his position in the office of the register. By section 22, c. 15, Laws of 1909, the Civil Service Law, as amended by chapter 264, Laws of 1910, the relator, having served in the army or navy during the war with Spain, could not be removed "from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such employé or appointee to a review by a writ of certiorari." The relator does not deny that he was absent from the register's office on the days specified, nor does he deny that he did not report, either in writing or by telegram, or in any other way, to the register's office in the forenoon. that he was sick and unable to be present; but he offered testimony which tended to prove that on these days he was sick and unable to attend to his work. The examination of the testimony shows that the relator was suffering from some impairment of health in consequence of a previous attack of pneumonia, from which he had not thoroughly recovered. There was also testimony from which the register could find that the relator was not sufficiently unwell to prevent his performing the duties of his office. It seems that the relator had been before the register on two prior occasions for failure to report or to perform his duties, and on both occasions, in dismissing the charges, the register had notified the relator, in case he was sick, to notify the register's office by telephone or in writing on the forenoon of the day, and also to notify the register where he could be found. These warnings were given on December 12, 1911, and January 30, 1912. The evidence of the relator as to his conduct on February 5th, when he left his house. and says he stayed at his physician's house all day, substantially from 12:40 to 6 o'clock at night, and the testimony as to his physical condition subsequently on the days in February when he was absent, is quite unsatisfactory. He seems to have been able to walk about and go out of doors, and his condition was not such as required a physician. All he did was to call his doctor up on the telephone and have a conversation with him. It is clear that this relator was not a competent clerk, and that he was continually absent from the register's office, and failed to perform his duties, and failed to comply with the orders of his superior officers that he should notify the office of his absence and of his whereabouts. There was competent evidence to sustain the charges, and we cannot, therefore, say that the finding of the register was against the weight of the evidence. The writ should therefore be dismissed, and the proceedings affirmed, with $50 costs and disbursements. All concur. (164 App. Div. 177) EPSTEIN v. ROCKVILLE CENTRE IMPROVEMENT CO. (No. 6212.) (Supreme Court, Appellate Division, First Department. November 6, 1914.) 1. TRIAL (§ 3*)-SEPARATE TRIALS OF DIFFERENT ISSUES. Under Code Civ. Proc. § 974, providing that, where defendant interposes a counterclaim and demands an affirmative judgment, the mode of trial of an issue of fact arising thereupon is the same as if it arose in an action brought by defendant against plaintiff for the cause of action stated in the counterclaim, where, in an action to recover money paid under a contract for the purchase of land on the ground that the execution of the contract was induced by fraud, defendant counterclaimed for specific performance of the contract, it was entitled to a separate trial of the issues arising on the counterclaim at Special Term, since, though plaintiff failed to prove fraud, a decree for specific performance could not be entered at the Trial Term, as the question as to the terms upon which the contract should be enforced would depend upon equitable considerations. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 6, 7; Dec. Dig. § 3.*] 2. TRIAL (§ 4*)-Order OF TRIAL OF SEPARATE ISSUES. In an action to recover money paid under a contract to purchase land, on the ground that the execution of the contract was induced by fraud,. in which defendant counterclaimed for specific performance, though defendant was entitled to a separate trial at Special Term of the issue arising on the counterclaim, such trial should not be had until after the trial of the issues arising on the complaint and answer, since the question of fraud was peculiarly one for a jury, and, if plaintiff should succeed in establishing fraud, the counterclaim would necessarily fail. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 8-10; Dec. Dig. § 4.*] Appeal from Special Term, New York County. Action by Joseph Epstein against the Rockville Centre Improvement Company. From an order denying a motion to direct a separate trial of the issues on the counterclaim and reply thereto at Special Term, and in the meantime to stay the trial of the action upon the complaint and answer, defendant appeals. Reversed, and order entered as directed in the opinion. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. Max Leff, of New York City, for appellant. David L. Podell, of New York City, for respondent. INGRAHAM, P. J. [1, 2] The complaint alleges two causes of action to recover back the money paid by plaintiff on account of two contracts for the purchase of real property, based upon an allegation that he was induced to execute the contracts and pay the amounts paid on their execution by false and fraudulent representations made by the defendant, and the damages demanded in each case are the amount paid by the plaintiff on the execution of the contracts. The making of the contract is admitted, and there is no allegation that the defendant could not convey good title to the property, except that it is alleged that there was a mortgage upon the property. There is no allegation, however, that the defendant could not secure a release from this mortFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes |