App. Div.]

Second Department, February, 1922.

LAVINIA LALLY, Respondent, v. EDWARD ADELMAN, Appellant.- Order affirmed, with ten dollars costs and disbursements. The affidavits presented a question of fact whether defendant had violated the preliminary injunction. The affidavit of defendant's father, who had general charge of the premises, concedes that“ since the granting of the order the defendant has taken no affirmative action regarding the plaintiff's premises." Defendant did not appeal from the order granting the injunction or obtain any stay on appeal, but applied for a stay of his punishment for contempt of court and in the meantime continued his violation by permitting his sewage to flow on plaintiff's land. In the meantime, as conceded upon the argument, the action has been tried on the merits and judgment for a permanent injunction decreed in plaintiff's favor. It was defendant's duty to promptly and in good faith comply with the preliminary injunction, and we see no reason for interfering with the order appealed from. Blackmar, P. J., Kelly, Jaycox, Manning and Kelby JJ., concur.

WYNN MERSEREAU, a Foreign Corporation, Respondent, v. EDWIN E. MERSEREAU, Appellant.- Judgment unanimously affirmed, with costs. No opinion. This court makes the additional finding of fact: That the acts of the defendant above found damaged the plaintiff. Present Blackmar, P. J., Kelly, Jaycox, Manning and Kelby, JJ.

SAL RAMAGLI, Respondent, v. ADOLPH FLESCH and GUSSIE FLESCH, Appellants. - Judgment and order reversed and new trial granted, costs to abide the event, upon the ground that the verdict was contrary to the evidence. Blackmar, P. J., Kelly. Jaycox, Manning and Kelby, JJ., 'concur.

NATHAN SHOSTACK, Respondent, v. SAMUEL HASKELL and Others, Defendants, Impleaded with ROSE END, Appellant.- Order affirmed, with ten dollars costs and disbursements. (See Shostack v. Haskell, 116 Misc. Rep. 475.) Blackmar, P J.. Kelly, Jaycox, Manning and Kelby, JJ., concur.

Decision by the Presiding Justice on Application to Appeal from the Appellate

Term.

YETTA GOTTERER, Appellant, v. JACOB COHEN, Respondent.-Application granted.

INDEX

ABATEMENT AND REVIVAL.

PRIOR ACTION PENDING.

Pendency of suit in Federal courts no defense to an action between the same parties in the State courts. General Investment Co. v. Interborough R. T. Co.,

794.

ABUTTING OWNERS.

See NEGLIGENCE, 2.

ACCORD AND SATISFACTION.

See PRINCIPAL AND AGENT, 1.

ACCOUNTING.

See EXECUTORS AND ADMINISTRATORS, 2, 4; PARTNERSHIP, 3, 4, 6, 7. ADMIRALTY.

See WORKMEN'S COMPENSATION LAW, 1, 2.

ADVERSE POSSESSION.

See REAL PROPERTY, 1.

See, also, ATTORNEY AND CLIENT, 3; CRIMES, 1; NEW TRIAL, 1. JUDGMENTS AND ORDERS REVIEWABLE.

1. Order overruling demurrer not mentioned in notice of appeal - denial of motion at trial to dismiss complaint on same grounds as raised by demurrer cannot indirectly allow such review order overruling demurrer not reviewed stands as law of case-order not reviewed conclusive as if reviewed and affirmed. Barber v. Rowe, 290.

2. Contempt -- review of contempt proceedings in civil action is by appeal only. Eastern C. S. Co. v. B. & M. P. I. U. Local No. 45, 714. TAKING APPEAL.

3. Defects in papers - notice of appeal by plaintiff erroneous statement therein that defendant appeals disregarded under Civil Practice Act, § 105. Wolff v. Hubert, 124.

RECORD.

4. Case on appeal

amendment of case to include exhibits and also judge's certificate that case contains all evidence. Leeds v. Joyce, 126.

HEARING AND DETERMINATION.

5. Demurrer deemed abandoned if no argument presented in support on appeal. Kent v. Universal Film Mfg. Co., 539.

APPEARANCES.

EFFECT.

General appearance does not waive objection to jurisdiction where juris-
diction could not be obtained by serving summons in this State. De Simone
v. Transportes Maritimos Do Estado, 82.

APPLES.

See CRIMES, 3, 4.

ARBITRATION.

AGREEMENT TO ARBITRATE.

1. Proceedings to compel arbitration under agreement therefor agree-
ment not to prosecute for encroachment of building unless encroaching party
built higher and then to arbitrate damages agreement not revoked by
death of party- agreement constituted covenant running with land
arbitration may be compelled under agreement. Matter of Scott, 599.

2. Contract for sale of raw silk drawn on blank containing printed clause
"Sales are governed by Raw Silk Rules adopted by the Silk Association of
America" raw silk division rules required compulsory arbitration, associa-
tion rules did not both parties members of association but neither party
member of raw silk division, a subordinate body - arbitration of differences
arising from contract not compelled — rules of interpretation of alleged con-
tracts to arbitrate not abrogated by Arbitration Law - arbitration contracts
strictly construed. Matter of General Silk Importing Co., Inc., 786.

1. City cannot arbitrarily withdraw from stipulations made by its corpora-
tion counsel. Rockaway Pacific Corporation v. State of New York, 172.
2. Plaintiff's attorneys had no implied authority to waive her rights by
stipulating reduction of alimony. Hallow v. Hallow, 642.

3. Unretained attorney upon whom the court directs service of order pro-
viding for examination of body of deceased person has sufficient interest in mat-
ter to warrant his prosecution of appeal relating thereto. Matter of Wnuk, 731.
4. Court may not require county treasurer to pay allowance for expenses
to counsel assigned for one held by magistrate on charge of murder in first
degree but who has not been indicted - all money received by counsel under
such order must be returned. People v. Foster, 710.

DISBARMENT.

5. Attorney who had been in active practice for upwards of fifteen years
disbarred for fraud against clients, attempted fraud against courts, mis-
appropriating clients' money, falsifying court records and altering affidavits.
Matter of Farrington, 735.

BANKS AND BANKING.

DEPOSITS.

Action to recover money deposited to credit of plaintiff's assignor in
defendant bank- deposit made in Paris branch for account of plaintiff in
London branch London branch had no right to detain money awaiting
instruction from Moscow branch legal status of plaintiff shown - act of
attorney in assigning claim to plaintiff ratified secondary evidence of power
of attorney proper where impossible to secure original power from Russia --
damages measure of damages is sum sufficient to purchase pounds sterling
at time of refusal plus interest from that date to entry of judgment, Hoppe v.
Russo-Asiatic Bank, 460.

BILL OF PARTICULARS.

See PLEADINGS, 13-15; SALES, 12.

BILLS AND NOTES.

LIABILITIES OF PARTIES.

---

1. Action to recover on part of series of corporate notes payable to bearer
secured by collateral indenture application for summary judgment under

BILLS AND NOTES Continued.

Rules of Civil Practice, rule 113 rule 113 applicable to action begun before
October 1, 1921 - denial of knowledge or information sufficient to form belief
treated as sham and raised no issue — provision in collateral indenture that
holder of notes could not enforce collateral except on certain conditions,
not defense to action on primary indebtedness represented by notes-pro-
vision in notes referring to collateral did not affect primary liability of maker
plaintiff corporation is real party in interest although owned by individual
pendency of suit in Federal courts no defense depositions notice for
examination of plaintiff's officers properly set aside where no issue raised by
answer. General Investment Co. v. Interborough Rapid Transit Co., 794.
RIGHTS AND LIABILITIES ON INDORSEMENT OR TRANSFER.

--

-

2. Action by transferee of notes given for purchase price of furniture which
were negotiated to plaintiff in violation of agreement not to negotiate before
shipping furniture plaintiff has burden of showing that he acquired title as
holder in due course, in good faith and for value, and without knowledge of
agreement and violation thereof. mere proof of paying value not sufficient
to sustain burden - Negotiable Instruments Law, § 98, applied. Walkof v.
Strober, 104.

-

-

3. Trade acceptance - action by transferee claim by acceptor against
payee cannot be set up as counterclaim reiteration in counterclaim of
denials in defense may be disregarded. Levine v. Hogan-Levine Co., 487.
ACTIONS.

4. Action by transferee to recover on trade acceptance trial failure
of plaintiffs to object to incompetent testimony and acquiescence in court's
refusal to strike out concedes existence of question of fact for jury court
cannot set aside general verdict for defendants and direct verdict for plaintiffs.
Klein v. Katz, 473.

5. Foreign bills of exchange action, as claimed by plaintiffs, was for money
loaned defendant, drafts being taken as security evidence supported claim
of defendant that plaintiffs had bought drafts from defendant and that action
was by payees of drafts against drawer drafts were foreign bills of exchange
no evidence of presentment of drafts to drawee for acceptance or of protest
thereof drawer not liable. Richard v. Connecticut Electric Manufacturing

-

Co., 681.

6. Action on promissory note defense of no consideration pleadings
counterclaim for services predicated on contract for sale of manufactured
products by defendant to plaintiff, plaintiff to furnish capital for operating
defendant's factory and allow defendant percentage on cost of products
sold, properly dismissed-counterclaim predicated on same contract alleging
breach by plaintiff and damage to defendant improperly dismissed. Kaempfer
v. Eisenberg, 691.

BILLS OF LADING.

CONSTRUCT ON.

1. Error to exclude certain evidence tending to show recently established
custom to treat delivery to transportation company as actual shipment -
custom matter of fact. Vietor v. National City Bank, 557.

ESTOPPEL OF CARRIER TO DENY RECITALS.

2. Action against carrier on straight bill of lading delivered to plaintiffs,
named as consignees, on payment of draft carrier liable where it struck out
name of consignees in way bills and substituted name of shipper without
return of original bill of lading-carrier estopped from denying representa-
tions in bill of lading. Fleck & Hillman v. Wabash Railway Co., 482.
BONDS.

FIDELITY BOND.

Action on fidelity bond against larceny and embezzlement by employee-
employee acted as selling agent for plaintiff — plaintiff warranted employee
would make weekly and monthly statements and remittances, and that books
would be examined by public accountant - compliance with warranties
condition precedent to recovery on bond - plaintiff required to notify defend-
ant of failure of employee to make statements and remit. Phillips-Jones
Co., Inc., v. Fidelity & Deposit Co., 629.

BREACH OF PROMISE TO MARRY.
See HUSBAND AND WIFE, 1.