William MacFarlane, of Rochester, for respondent.

PER CURIAM. Judgment affirmed with costs. and CRANE, JJ., concur. CHASE, COLLIN, HOGAN, MCLAUGHLIN, sents. HISCOCK, C. J., not sitting. POUND, J., dis

(169 App. Div. 934, 153 N. Y. Supp. 1105), | appellant.
entered June 30, 1915, affirming a judgment
in favor of plaintiff entered upon a verdict in
an action to recover for an alleged breach of
contract of employment. The answer denied
the alleged discharge, affirmatively plead that
plaintiff abandoned his employment prior to his
alleged discharge, and, as a further defense,
set up that from the time of the alleged dis-
charge until the close of the contract period
plaintiff devoted his entire time and attention
to a business of his own and that the profits
derived therefrom during such period exceed-
ed the amount of the salary stipulated. Wil-
liam M. Bennett and Dudley F. Sicher, both of
New York City, for appellant. Daniel P.
Hays, of New York City, for respondent.
PER CURIAM. Judgment affirmed, with

costs.

CHASE, COLLIN, CUDDEBACK, CARDOZO, POUND, and ANDREWS, JJ., concur. CRANE, J., dissents.

V.

ARMSTRONG, Appellant, MINETTO MERIDEN CO., Respondent. (Court of Appeals of New York. Dec. 11, 1917.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (166 App. Div. 970, 151 N. Y. Supp. 1102), entered February 4, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant, his employer. The plaintiff, who was employed to run an elevator, complained that the defendant negligently permitted the doors protecting the elevator shaft to become out of repair and defective so that they failed to operate automatically and remained open and left the elevator shaft unguarded. He alleged that he left the elevator at the middle floor and went away for a short time and when he returned "believing said elevator was still there and in working order and said doors, casings or inclosures not inclosing said space, the plaintiff herein stepped into, as he supposed, said elevator, but in fact into the space left by said elevator, and falling down the shaft received the injuries complained of. The defendant denied any negligence upon its part and alleged that the injuries sustained by the plaintiff were caused by the plaintiff's own negligence in walking into the empty elevator shaft without looking or exercising proper care and also that plaintiff assumed the risk of said injuries. Wordsworth B. Matterson, of Syracuse, for appellant. Charles E. Spencer, of Syracuse, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

HISCOCK, C. J., and CHASE, CUDDEBACK, HOGAN, POUND, and McLAUGHLIN, JJ., concur. ANDREWS, J., not sitting.

BARROW, Appellant, spondent. (Court of Appeals of New York. v. BARROW, ReDec. 21, 1917.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (168 App. Div. 924, 152 N. Y. Supp. 1098), entered April 7, 1915, affirming a judgment in favor of defendant entered upon a dismissal of_the_complaint by the court on trial at Special Term. The plaintiff sued for the cancellation of a deed to his property executed by him on or about January 21, 1911, to his wife, and recorded in the register's office in Kings county at or about that time. The complaint alleged that at the time of the execution of the deed the plaintiff and the defendant, his wife, were living happily together, and that the plaintiff reposed great confidence in her. Shortly before the execution of the deed the defendant called the plaintiff's attention to certain unjust claims and illegal demands upon which suit was being threatened, and that she persuaded and induced him to transfer the property to her until the danger of the threatened lawsuits was passed. At the time the transfer was made defendant assured the plaintiff that she would reconvey the title to him upon demand when the bringing of the threatened lawsuits was no longer probable. The complaint then alleged that these lawsuits were never brought. Plaintiff never received any money or other consideration for the deed. Plaintiff requested a retransfer of the property to him, and defendant refused it. Whereupon this action was brought for the cancellation of the record purporting to show a transfer to the defendant, and for judgment declaring the original transfer to defendant void. Clayton J. Heermance, of New York City, for appellant. Charles J. McCafferty and John S. Bennett, both of Brooklyn, for respondent.

PER CURIAM. Judgment affirmed with costs.

HISCOCK, C. J., and CHASE, COLLIN, HOGAN, POUND, MCLAUGHLIN, and CRANE, JJ., concur.

BATTLE ISLAND PAPER CO., Respondent, v. PACIFIC COAST CASUALTY CO., Appellant. (Court of Appeals of New York. Jan. 8, 1918.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (166 App. Div. 968, 151 N. Y. Supp. 1103), entered January 22, 1915, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action upon a policy of liability insurance to recover the sum of $1,797.40 and ARROLL, Respondent, v. BUFFALO, L. & interest on account of moneys paid by the R. RY. CO., Appellant. (Court of Appeals of plaintiff in satisfaction of a judgment obtainNew York. Dec. 21, 1917.) Appeal from a ed by one Angelo Mazzei in an action brought judgment of the Appellate Division of the by him against the plaintiff to recover damSupreme Court in the Fourth Judicial De-ages on account of its negligence; to recover partment (164 App. Div. 970, 149 N. Y. Supp. moneys paid in satisfaction of other judgments 1069), entered October 23, 1914, affirming a obtained by other parties in actions brought judgment in favor of plaintiff entered upon a against the plaintiff to recover damages on verdict. This action was brought to recov- account of plaintiff's negligence and to recover er damages for injuries sustained by the plain- moneys paid out by said plaintiff in satisfaction tiff through the running away of a team which of claims brought by sundry persons against he was driving, occasioned, as he claims, by said plaintiff on account of its acts of neglione of the defendant's cars going west on gence, said plaintiff alleging that said defendant Lyell avenue, in the city of Rochester on Sep- company had agreed to indemnify and save tember 3, 1912, running into and striking the harmless the plaintiff on account of said judg

tie, of New York City, for the motion.
J. Talley, of New York City, opposed,
PER CURIAM. Motion granted, and appeal
dismissed, without costs, on authority of Mat-
ter of Mathot, 222 N. Y. 8, 117 N. E. 948.

Alfred, 7th day of November, 1908, to Nicholas Evento, and it was undisputed that the purchase price of said premises was the sum of $10,000. There was no dispute that the sum of $5,000 was paid; but the plaintiff contended that the sum of $5,000, which, by the agreement of the parties, was to be due in three years from the date of purchase, had not been paid by Nicholas Evento. The defendants, however, contended that said amount had been paid. The plaintiff brought an action against Nicholas Evento in the Supreme Court of New York county to recover upon a promissory note for the sum of $5,000 on or about the 10th day of April, 1913. On the 7th day of November, 1913, the defendant Nicholas Evento, for the sum of $8,000, conveyed to the defendant Susan Evento the premises in question. On the 10th day of November, 1914, after a trial in the Supreme Court in New York county, upon the verdict of a jury, the plaintiff recovered a judgment against Nicholas Evento in the sum of $6,920.27, which judgment was offered in evidence upon the trial of this action. Sometime in the month of March, 1914, the plaintiff brought the suit in question. It was therefore contended that this action was commenced some three or more months after the deed from Nicholas Evento to Susan Evento, and that the deed to Susan Evento was given one year before the judgment mentioned. Dix W. Noel and William L. Wemple, both of New York City, for appellant. Harry H. Reeve, of New York City, and John R. Vunk, of Patchogue, for respondents.

BRINLEY, Respondent, v. NEVINS, Appellant. (Court of Appeals of New York. Jan. 8, 1918.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (168 App. Div. 948, 153 N. Y. Supp. 1107), entered May 28, 1915, affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover damages for an alleged breach of an alleged agreement for the sale by the defendant to the plaintiff, at the latter's option, at any time within 30 days after September 17, 1908, of 50,000 shares of the capital stock of the Cobalt Central Mines Company, at 38 cents per share. The answer was a general denial. The plaintiff's theory was that the offer was sufficiently accepted by words, and that tender of the purchase price was waived. The defendant's theory was that the offer could be accepted only by tender of the purchase price, and that what the plaintiff relies upon as waiver of tender amounted to a revocation by the defendant of the offer. Louis Marshall, of New York City, for appellant. Herbert C. Smyth and Charles F. Goddard, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

HISCOCK, C. J., and CHASE, COLLIN, HOGAN, CARDOZO, CRANE, and ANDREWS, JJ., concur.

BROWN, Appellant, v. ASSOCIATED OPERATING CO., Respondent. (Court of Appeals of New York. Dec. 11, 1917.) Appeal from a judgment, entered January 27, 1915, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Depart ment (165 App. Div. 702, 151 N. Y. Supp. 531), 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 the defendant, his employer. Plaintiff, a longshoreman, while assisting in loading a ship fell through an open hatchway and received the injuries complained of. The Appellate Division held that without necessity, unconstrained by circumstances, he walked without hesitation or any pretense of care directly into a dangerous place that he knew existed and was therefore guilty of contributory negligence. Bertrand L. Pettigrew, of New York City for appellant. Frank Verner Johnson and Amos H. Stephens, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

HISCOCK, C. J., and CHASE, CUDDEBACK, HOGAN, POUND, MCLAUGHLIN, and ANDREWS, JJ., concur.

BUCHANAN, Appellant, v. EVENTO et al., Respondents. (Court of Appeals of New York. Jan. 8, 1918.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (170 App. Div. 908, 154 N. Y. Supp. 1113), entered August 12, 1915, unanimously affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term. This action was brought to establish an equitable lien upon certain real property in the county of Suffolk for an alleged balance due plaintiff upon the purchase price thereof. The

PER CURIAM. Judgment affirmed, with costs.

CHASE, COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE, and ANDREWS, JJ.,

concur.

BURRELL, Appellant, v. CITY OF NEW YORK et al., Respondents. (Court of Appeals of New York. Nov. 20, 1917.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (164 App. Div. 245, 149 N. Y. Supp. 812), entered November 23, 1914, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term, based upon conclusions of law that the award made herein by the defendant board of assessors was the result of a judicial proceeding; that said board had full jurisdiction to make the award; that the award was not procured through fraud, and therefore constituted a binding adjudication of the rights of the plaintiff and the defendants herein; that the court was without power to review the award except by writ of certiorari (against which the statute of limitations had run through lack of any notice to appellant of hearing or decision), and particularly was without power to set aside the award in an action in equity. The action was brought to set aside an award made to plaintiff by the board of assessors of the city of New York for damage to certain real property arising from a change of grade. Truman H. Baldwin and George E. Baldwin, both of New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Charles J. Nehrbas and Terence Farley, both of New York City, of counsel), for respondents.

PER CURIAM. Judgment affirmed, with costs.

HISCOCK, C. J., and COLLIN, CUDDEBACK, and ANDREWS, JJ., concur. CARDOZO, POUND, and CRANE, JJ., dissent.

CAMPULLU, Respondent, V. BRADLEY CONTRACTING CO., Appellant. (Court of Appeals of New York. Jan. 8, 1918.) Appeal

the Supreme Court in the First Judicial De- |
partment (170 App. Div. 972, 155 N. Y. Supp.
1097), entered October 26, 1915, affirming a
judgment in favor of plaintiff entered upon a
verdict in an action to recover for personal in-
juries alleged to have been sustained by plain-
tiff through the negligence of the defendant, his
employer. The defendant, as contractor, was
engaged in excavating a portion of Lexington
avenue for subway purposes. The plaintiff en-
tered its employ in August preceding the acci-
dent, as a rockman, and was assigned to the
mucking gang. He was injured, within fifteen
minutes after the firing of a blast by the de-
fendant's blasting gang, by the fall of a rock
which came from the place where the blast was
set, estimated to be from 45 feet to 80 feet
above the place where the plaintiff worked.
No inspection as to the result of the blast was
made, the defendant maintaining in the courts
below that no duty to inspect rested on it.
Frederick L. C. Keating and Israel V. Werbin,
both of New York City, for appellant. Isidor
Wels, of New York City, for respondent.
PER CURIAM. Judgment affirmed,

costs.

with

CHASE, COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur.

In re CARPEL. (Court of Appeals of New York. Nov. 20, 1917.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (178 App. Div. 146, 165 N. Y. Supp. 102) entered June 14, 1917, disbarring the appellant herein from practice as an attorney and counselor at law in the state of New York. The motion was made upon the ground that the Court of Appeals was without jurisdiction to entertain the appeal, the decision of the Appellate Division sustaining the facts having been unanimous and permission to appeal not having been obtained. Einar Chrystie, of New York City, for motion. Edward Carpel, of New York City, opposed.

PER CURIAM. Motion granted, and appeal dismissed, without costs, on authority of Matter of Mathot, 222 N. Y. 8, 117 N. E. 948.

943, 152 N. Y. Supp. 1103), affirming a judg
ment for plaintiff, defendants appeal. Affirmed.
PER CURIAM. Judgment affirmed, with
costs.

BACK, HOGAN, POUND, and ANDREWS,
HISCOCK, C. J., and COLLIN, CUDDE-
JJ., concur.

tiff, an employé of the defendant, was injured
MCLAUGHLIN, J. (dissenting). The plain-
while handling and testing a blasting cap. He
has recovered a judgment against defendants
on the ground that his injuries were due to
their negligence in that they did not instruct
him as to the manner or method of doing his
work or warn him of the dangers connected
with it. When he first applied to defendants
for a position he was told by them that the
only position open was that of a "magazine
keeper" and before he could have that he would
have to produce a certificate of fitness from
the municipal explosives commission of the city
of New York. A magazine keeper is one who
has the care and custody of a magazine in which
is stored a large quantity of electric fuses and
blasting caps which he delivers to the proper
person calling for them. Before one can get a
certificate as magazine keeper under the rules
and regulations of the municipal explosives com-
mission, he has to pass an examination upon
the regulations governing the transportation.
storage and use of the substance, compound or
article relating to or connected with the service
to be performed by him, and upon the risks
incident to his employment, and upon his knowl-
edge of the precautions necessary to be taken in
connection therewith. He produced the certifi-
cate required, was employed by defendants and
some time thereafter the accident occurred.
When he produced the certificate he held himself
out as an expert in the use and handling of
blasting caps and in effect said to the defend-
ants that he was qualified to perform the work
which he would have to do (Hammond v. Union
Bag & Paper Co., 136 App. Div. 100, 120 N.
Y. Supp. 652), and was not thereafter in a posi-
tion to assert that he ought to have been in-
structed before being assigned to that work.
Fioranza v. Rinehart & Dennis Co., 164 App.
Div. 462, 150 N. Y. Supp. 210; Lofrano v. New
York & Mt. Vernon Water Co., 55 Hun, 452, 8
N. Y. Supp. 717, affirmed 130 N. Y. 658, 29
N. E. 1033; Stanley v. C. & W. M. Ry. Co.,
101 Mich. 202, 59 N. W. 393; Saucier v. Spin-
ning Mills, 72 N. H. 292, 56 Atl. 545. I am
unable to subscribe to the doctrine that an em-
ployer can be made liable because he has not
instructed one who holds himself out as an ex-
ployed. The question of a safe place to work
was not presented by the pleadings. Plaintiff
made no claim to recover on that ground and
such question was not submitted to the jury
for its consideration. I, therefore, dissent from
the affirmance of the judgment, and vote to re-
verse it and for a new trial.

In re CARTER. (Court of Appeals of New York. Nov. 20, 1917.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judicial De-pert in the work for which he has been empartment (177 App. Div. 677, 164 N. Y. Supp. 862), entered May 28, 1917, disbarring the appellant herein from practice as an attorney and counselor at law of the state of New York. The motion was made upon the ground that the Court of Appeals was without jurisdiction to entertain the appeal, the decision of the Appellate Division sustaining the facts having been unanimous and permission to appeal not having been obtained. Einar Chrystie, of New York City, for motion. Asa L. Carter, of New York City, opposed.

PER CURIAM. Motion granted, and appeal dismissed, without costs, on authority of Matter of Mathot, 222 N. Y. 8, 117 N. E. 948.

CAVANAGH, Respondent, v. MCGOVERN et al., Appellants. (Court of Appeals of New York. Dec. 4, 1917.) Appeal from Supreme Court, Appellate Division, First Department. Action by Bartholomew A. Cavanagh against Patrick McGovern and another. From a judgment of the First Department of the Appellate Division of the Supreme Court (167 App. Div.

CHASEN, Appellant, v. ASTORIA LIGHT, HEAT & POWER CO., Respondent. (Court of from a judgment of the Appellate Division of Appeals of New York. Dec. 18, 1917.) Appeal the Supreme Court in the Second Judicial Department (168 App. Div. 929, 152 N. Y. Supp. 1103), entered April 26, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term. The action was brought to recover damages for personal injuries, consisting in the loss of the plaintiff's right arm, caused by its being caught between a revolving pulley and a moving belt on a coke barge belonging to the defendant, while the plaintiff was in its employment. After both parties had introduced their evidence and rested, defendant's counse