App. Div.]

Second Department, May, 1921.

with fifty dollars costs and disbursements. No opinion. Blackmar, P. J., Mills, Rich, Putnam and Jaycox, JJ., concur.

JACOB ROSENBERG, Respondent, v. MORTON ROSENBERG and Others, as Executors and Trustees, etc., Doing Business under the Firm Name and Style of MODEL KNIT WEAR MANUFACTURING COMPANY, Appellants.— Order affirmed, with ten dollars costs and disbursements. No opinion. Blackmar, P. J., Mills, Rich, Putnam and Jaycox, JJ., concur.

JAMES WALSH, Respondent, v. THE CITY OF NEW YORK, Appellant.Order affirmed, with ten dollars costs and disbursements. No opinion. Blackmar, P. J., Mills, Rich, Putnam and Jaycox, JJ., concur.

JOSEPH WAZNIS, Respondent, v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.- Judgment and order reversed and new trial granted, costs to abide the event, upon the ground that the verdict is contrary to the evidence. Blackmar, P. J., Rich, Putnam, Kelly and Jaycox, JJ., concur.

JUDGMENTS AND ORDERS APPEALABLE.

1. Court of Appeals - judgment of Appellate Division on order affirming judgment of Special Term is final determination and appeal to Court of Appeals lies therefrom as of right where decision not unanimous appeal is not taken from order of affirmance but from judgment entered thereon. Kaston v. Zimmerman, 260.

2. Appellate Division - judgment of City Court appeal may not be taken as matter of right to Appellate Division from judgment entered by City Court of New York on determination of Appellate Term Appellate Division has discretion to entertain such appeal to end litigation. Cuyler Realty Co. v. Teneo Co., Inc., 440.

3. City Court of Mount Vernon appeal from City Court of Mt. Vernon from judgments where amount recovered is less than $200, must be to County Court under city charter (Laws of 1892, ch. 182, § 114). Stiller v. Lucas, 954.

RAISING QUESTION BELOW.

4. Complaint-where remarks of trial court, shown by record, indicate defendants moved for dismissal of complaint and plaintiff for dismissal of counterclaim, it will be deemed, on appeal, that motions were made though record does not so state. Ide v. Finn, 304.

5. Question whether plaintiff suing as pledgee of marine insurance certificate, had insurable interest in property insured, not having been raised at trial, will not be considered. Guinness v. Phoenix Assurance Co., Ltd., 495.

6. Motion in County Court to dismiss complaint on ground that Justice's Court had no jurisdiction did not specifically raise objection that service of summons had not been made by person not specially deputized and point was not available, after adjournment and trial on merits, in which both parties gave testimony. Sherwood v. Coffey, 908.

APPEAL- Continued.

TAKING APPEAL.

7. Death of party after judgment - administrator under Code of
Civil Procedure must procure order for leave to appeal, enter same and
serve notice thereof within four months after death of party
is without power to extend time to appeal beyond four months.
Warner v. Dunlap, 41.

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court

8. Appeal from judgment by default- omission to strike out request
for new trial in notice of appeal from justice's judgment is not ground
for dismissal amendment of notice of appeal under Code of Civil
Procedure is within discretion of court. Rutherford v. Kastner, 246.

9. Notice of appeal upon appeal as of right to the Court of Appeals
from judgment of affirmance entered on order by Appellate Division,
if appellant intends to review intermediate order notice of appeal must
distinctly specify order to be reviewed. Kaston v. Zimmerman, 260.
PAPERS ON APPEAL.

10. Method of preparing papers on appeal is pointed out in Code
of Civil Procedure, § 1353, and, still more definitely, by rule 41 of the
General Rules of Practice. O'Brien v. Weisbecker, 971.

DISMISSAL.

11. Appeal unnecessary judgment in favor of plaintiff on three
causes of action and against him on one cause for same amount on
account stated, an exception to ruling of court would save plaintiff's
rights and appeal by him should be dismissed. Wilton Mfg. Co., Inc., v.
Berger, 121.

HEARING AND DETERMINATION.

12. Appellate Division cannot dispose of case on review of decree
of Surrogate's Court where verdict is against weight of evidence, but
must direct resubmission Appellate Division's power to review decree
of Surrogate's Court based on findings of jury. Matter of Eno, 131.
13. Properly rejected evidence Appellate Division will not receive
evidence properly rejected below under section 2763 of Code of Civil
Procedure. Matter of Eno, 131.

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14. Power to reverse findings of trial court Appellate Division has
power for purpose of supporting judgment to reverse finding of trial
court that certain judgment in suit was not res judicata · duty of
counsel to point out wherein court erred and designate in record place
where facts in support of counsel's contention may be found. Reich v.
Cochran, 248.

15. Decision of Special Term overruling demurrer to complaint not
law of case where defendant answers. Campbell v. Poland Spring Co.,
331.

16. Reargument - motion for reargument-motion papers stricken
from files as impertinent and disrespectful to court-attorney censured
and reprimanded. Klein v. Smith, 955.

CERTIFIED QUESTIONS.

17. Court of Appeals

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where judgment is final it is improper to
certify questions to Court of Appeals when appeal is allowed from
judgment finally determining action the Appellate Division merely
certifies that in its opinion question of law is involved which ought to
be reviewed by Court of Appeals. Kaston v. Zimmerman, 260.

APPELLATE DIVISION.

See APPEAL, 2.

ARBITRATION.

COMPULSORY ARBITRATION.

Labor dispute action to compel arbitration under contract between
street railway and labor union pursuant to chapter 275 of Laws of 1920 —
contract made part of pleading prevails over allegations agreement

of employer to treat with officers of union on grievances not agreement
to arbitrate agreement to increase wages for part of year and continue
same on condition that employer is allowed to increase fares - increased
fares not allowed payment of increased wages after refusal of increase
in fares did not continue agreement as to wages - protest by union

ARBITRATION - Continued.

against reduction in wages strike by employees constitutes antici-
patory breach of contract agreement providing for arbitration during
last month of contract as to future wages arbitration law not appli-
cable to such case. Matter of Amalgamated Assn. of Street & Electric
Railway Employees of America, 206.

ARSON.

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See CRIMES, 9.

ASSAULT.

See CRIMES, 4.

ASSIGNMENTS.

See FRAUD.

ATTACHMENT.

WHEN WARRANT GRANTED.

1. Attachment proceedings against foreign corporation - requirement
that affidavit shall show facts establishing contract, breach and basis
for computation of damages not jurisdictional jurisdictional defect
may not be cured by affidavits filed nunc pro tunc - affidavits filed
sufficient to confer jurisdiction supplemental affidavits supplying
evidentiary facts should have been considered by court. Dexter &
Carpenter, Inc., v. Lake & Export Coal Corporation, 766.
VACATING AND SETTING ASIDE.

2. Verification in attachment before one of attorneys for plaintiff
of affidavits upon which warrant of attachment is granted is mere
irregularity warrant should not be vacated on ground defendant had
no property at time of issue where defendant fraudulently transferred
interest in mother's estate to brother. Heidelberger v. Heidelberger, 626.
ATTORNEY AND CLIENT.

See, also, APPEAL, 16; EXECUTORS AND ADMINISTRATORS, 2.
DISBARMENT.

1. Attorney disbarred for converting proceeds in mortgage foreclosure
proceedings while acting as referee. Matter of Fridiger, 413.

DISCIPLINARY Proceedings.

2. Attorney censured for threatening criminal prosecution. Matter
of Penn, 764.

3. Attorney censured for writing letter threatening criminal prosecu-
tion unless debt to client was paid. Matter of Bookman, 765.

4. Attorney reprimanded on charge of unprofessional practice, but
offense, which was admitted, was not deemed of such gravity as to
warrant suspension or disbarment. Matter of Becker, 914.
RETAINER AND AUTHORITY.

5. Scope of contract whether original written agreement of retainer
between attorney and client for rendition of advice was changed subse-
quently by parol agreement by which attorney assumed control and
settled certain matters for client is question for jury impracticable
to separate services under original and parol contract. Blackwell v.
Finlay, 436.

DUTIES AND LIABILITIES OF ATTORNEY TO CLIENT.

6. Summary proceedings-attorney should not be subjected to
process to compel payment of money to client, except in plain case of
violation of professional duty if matter is one of doubtful right, client
should be left to assertion in ordinary action-proceedings not main-
tainable where attorney acting as business agent of parties in sale of
corporation, in good faith paid moneys received to petitioner's associate-
application to compel attorney to pay over money to client is addressed
to the discretion of the court. Matter of Gross v. Vogel, 358.
COMPENSATION.

7. Amendment fact that complaint for services by attorney
originally demanded $10,000, and amendment subsequently demanded
$17,000, does not render amendment prejudicial where verdict was for