action demanded judgment for the amount of his deposit together with expenses of search. The question at issue was the construction to be placed upon the words "violations and complaints," contained in the contract of sale and furnishing the ground for the refusal of the plaintiff to accept the title tendered by the defendant. Arthur Butler Graham, Victor F. Nekarda and Howard J. MacLachlan for appellant.

Reuben Stone for respondent.

Judgment affirmed, with costs; no opinion.

Concur: HIS COCK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN and CRANE, JJ.

THE FIRST NATIONAL BANK OF SEATTLE, Respondent, v. HERMAN M. GIDDEN, Appellant.

First Nat. Bank of Seattle v. Gidden, 175 App. Div. 563, affirmed. (Argued January 21, 1919; decided February 4, 1919.)

APPEAL from a judgment entered January 12, 1917, upon an order of the Appellate Division of the Supreme Court in the first judicial department, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and directing judgment in favor of plaintiff. A corporation in Seattle sold and shipped to defendant 4,000 cases of salmon, at the same time drawing a draft for the amount of the purchase price, which it sold to plaintiff with the bill of lading attached. The draft with the attached bill of lading was sent to the Irving National Bank for collection and after some negotiations, resulting in an extension of time for payment, was accepted by defendant. On the day of maturity defendant sent to the Irving National Bank a certified check for the amount of the draft but neither it nor the warehouse receipt could be found and the check was brought back, the draft remaining unpaid. The next day the draft was found but defendant refused to pay. This action was brought to recover the difference between the amount thereof and the price for which the

salmon was subsequently sold. The trial court dismissed the complaint on the ground that the defendant, under his contract for the purchase of the salmon and the terms of his acceptance of the draft, was entitled to the delivery of the salmon on the day of maturity of his acceptance, and the goods, or the documents representing them, not having been delivered to him on that day he was discharged from his liability on the draft. The Appellate Division reversed on the ground that the bill of lading and warehouse receipt for the salmon were held by the plaintiff as collateral security only; that when the defendant accepted the draft he became obligated to pay it, irrespective of the collateral; and that the failure to surrender the collateral was not a defense to an action on the acceptance. Frank Wasserman for appellant.

Louis F. Doyle for respondent.

Judgment affirmed, with costs, on opinion of MCLAUGHLIN, J., below.

Concur: HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN and CRANE, JJ. Not sitting: MCLAUGHLIN, J.

ARTHUR T. GOODENOUGH, Respondent, v. NEW YORK, WESTCHESTER AND BOSTON RAILWAY COMPANY et al., Appellants.

HENRY A. SIEBRECHT, Respondent, v. NEW YORK, WESTCHESTER AND BOSTON RAILWAY COMPANY et al., Appellants.

ALBERT WADLEY, Respondent, v. NEW YORK, WESTCHESTER AND BOSTON RAILWAY COMPANY et al., Appellants.

Goodenough v. N. Y., Westchester & Boston Ry. Co., 173 App. Div. 948, affirmed.

Siebrecht v. N. Y., Westchester & Boston Ry. Co., 173 App. Div. 950, affirmed.

Wadley v. N. Y., Westchester & Boston Ry. Co,, 173 App. Div. 950, affirmed.

(Argued January 21, 1919; decided February 4, 1919.)

APPEAL, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court

in the second judicial department, entered July 12, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The actions were to restrain the defendant from operating its railroad through certain lands in the city of New Rochelle in violation of restrictive covenants of record. The judgment in each case provided that the railway company should be enjoined and restrained from maintaining the embankment on certain lots in the Sickels tract owned by it, and from operating trains over the same, with a proviso that upon paying the plaintiff damages, with interest, it should be relieved from the said injunction and entitled to a release from the plaintiff, his heirs and assigns, from any claim which had arisen or might arise by reason of the maintenance of the said embankment, station and other structures, or by reason of operating trains over the same.

John B. Knox and George S. Graham for appellants. Richmond J. Reese for respondents.

Judgment, in each case, affirmed, with costs; no opinion.

Concur: HISCOCK, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN, MCLAUGHLIN and CRANE, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PAUL CHAPMAN, Appellant.

Attorneys

death.

compensation on appeal from judgment of

The prohibition against granting compensation to counsel for services on an appeal from a judgment of death, unless said appeal is brought on for argument within six months or the time for bringing on said argument has been enlarged by the Court of Appeals, is statutory and absolute. (People v. Campanelli, 214 N. Y. 37, followed.)

(Submitted January 27, 1919; decided February 4, 1919.)

APPLICATION for compensation of counsel (See 224 N. Y. 463.)

Matthew W. Wood and William R. Murphy for motion. No one opposed.

COLLIN, J. The counsel assigned by the court for the appellant, Paul Chapman, upon his appeal to this court from a judgment convicting him of murder in the first degree, have applied for the allowance of compensation for their services and of their disbursements in prosecuting the appeal. The appeal was not brought on for argument within six months from the taking of the appeal, nor was the time for bringing on the argument enlarged by the court. Section 536 of the Code of Criminal Procedure is: "An appeal to the court of appeals may, in the same manner, be brought to argument by either party, on any day in term, and where the judgment appealed from is of death the appeal must be brought on for argument within six months from the taking of such appeal, unless the court, for good cause shown, shall enlarge the time for that purpose." Section 308-a of such Code is: "No compensation shall be allowed to counsel on an appeal from a judgment of death for services in prosecuting the appeal unless the appeal shall have been brought on for argument within the time prescribed by section five hundred and thirty-six of this code."

The counsel seek to escape the constriction of our -power enacted by the section 308-a by averring that (a) the clerk of the court below did not cause the record in the case to be printed as and within the time prescribed by section 485 of the Code of Criminal Procedure; (b) the six months from the taking of the appeal expired in the month of August, one of the summer months during which this court is in recess, and (c) within the six months they and the district attorney filed with the clerk of this court a written stipulation that the argument of the appeal be adjourned to a day after the expiration of the six months. The reasons, jointly or severally considered, are not efficacious. In them is no

reason or cause why an application to this court for the order enlarging the time prescribed by section 536 could or should not have been made. The appeal was not brought to argument until nine days next following the expiration of the recess period had elapsed. The prohibition against granting the compensation is statutory and under the circumstances here is absolute. (People v. Campanelli, 214 N. Y. 37.) Section 308-a is, by its language, made applicable to the compensation allowable to the counsel. The compensation is distinct, however, from the personal and incidental expenses of the counsel in prosecuting the appeal. We can, therefore, and should allow those expenses.

HISCOCK, Ch. J., CUDDEBACK, CARDOZO, POUND, CRANE and ANDREWS, JJ., concur.

Application of counsel for compensation denied, and application for expenses allowed.

GENERAL FIREPROOFING COMPANY, Respondent, v. THE KEEPSDRY CONSTRUCTION COMPANY et al., Defendants, NEW YORK STATE NATIONAL BANK, Appellant, and THE PEOPLE OF THE STATE OF NEW YORK, Respondent. (Submitted January 27, 1919; decided February 4, 1919.)

Motion for re-argument denied, with ten dollars costs and necessary printing disbursements. (See 225 N. Y. 180.)

HOOKER, CORSER & MITCHELL COMPANY, Appellant, v. MAUDE E. HOOKER et al., Respondents.

Hooker, Corser & Mitchell Co. v. Hooker, 186 App. Div. 923, appeal dismissed.

(Submitted January 27, 1919; decided February 4, 1919.)

MOTION to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 15, 1918, unanimously affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term.