should find courage in judicial action, that one provision of law may be ignored while another and different provision shall be enforced. It must be assumed that the board of police commissioners discharged its duty as it saw it, and the Appellate Division is the proper tribunal to review its acts. I am in accord with the reasoning as laid down in People ex rel. Croker v. Sturgis, 39 Misc. Rep. 448, also reported in 80 N. Y. Supp. 194. The writ may issue. The stay is denied, except, if necessary, further action by the board of police commissioners may be stayed until the final determination of the Appellate Division, and in no event shall such stay be construed to effect the restoration of petitioner. to duty or salary. MARGIES v. CLYDE S. S. CO. (No. 6415.) (Supreme Court, Appellate Division, First Department. November 20, 1914.) 1. COURTS (§ 169*)-CITY COURT-TRANSFER TO SUPREME COURT. Plaintiff brought action in the City Court to recover $5,000 before Laws 1911, c. 569, purporting to increase the jurisdiction of that court from $2,000 to $5,000, had been declared unconstitutional, and had a trial after that decision, in which his recovery was limited to $2,000, for which amount he recovered judgment at a time when there was no authority for transferring the action from the City Court to the Supreme Court. Thereafter Laws 1913, c. 210, adding section 319a to the Code of Civil Procedure, was enacted, authorizing the transfer of causes from the City Court to the Supreme Court where the complaint demands judgment for money in excess of $2,000, but in the meantime defendant had appealed to the Appellate Division, where he secured a reversal and a new trial. Held, that the case was transferable to the Supreme Court as an action involving $5,000. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.*] 2. COURTS (§ 486*)-CITY COURT-TRANSFER TO SUPREME COURT-CONSTITUTIONALITY OF STATUTE. Laws 1913, c. 210, adding section 319a to the Code of Civil Procedure, authorizing the Supreme Court on motion of any party to remove to itself an action brought in the City Court of the City of New York wherein the complaint demanded judgment for money exceeding $2,000, and after removal to proceed as though the action had been begun in that court, was valid, in so far as it authorized the transfer of an action to recover $5,000, commenced in the City Court, in which the recovery had been limited to $2.000, but in which the judgment had been reversed on the appeal of the defendant. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1299-1305; Dec. Dig. § 486.*] Appeal from Special Term, New York County. Action by John Margies against the Clyde Steamship Company. From an order transferring the action from the City Court of New York to the Supreme Court, defendant appeals. Affirmed. See, also, 162 App. Div. 140, 147 N. Y. Supp. 262. Argued before INGRAHAM, P. J., and MCLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes Wharton Poor, of North Flushing, for appellant. LAUGHLIN, J. This is an action to recover $5,000 for personal injuries alleged to have been caused by the negligence of the defendant. It was commenced in the City Court before chapter 569 of the Laws of 1911, which purported to increase the jurisdiction of that court to $5,000, had been declared unconstitutional and void. See Lewkowicz v. Queen Aeroplane Co., 154 App. Div. 142, 138 N. Y. Supp. 983. But the action was tried in the City Court on February. 21, 1913, which was after the decision. The trial court confined the recovery to $2,000, and plaintiff recovered a verdict for that amount, upon which judgment was entered on the 3d day of March, 1913. [1] At that time there was no authority for transferring the action from the City Court to the Supreme Court, and the plaintiff's only course was to proceed in the court of limited jurisdiction or subject himself to costs, and possibly to the defense of the statute of limitations, if he applied for a discontinuance or submitted to a nonsuit. Shortly after the entry of the judgment, and on the 14th of April, 1913, the Legislature enacted chapter 210 of the Laws of that year, which added section 319a to the Code of Civil Procedure, authorizing the transfer of causes from the City Court to the Supreme Court. In the meantime the defendant had appealed to the Appellate Term, and on affirmance there an appeal was taken to this court, and on the 14th day of May, 1914, we reversed the judgment and granted a new trial. 162 App. Div. 140, 147 N. Y. Supp. 262. We are of opinion that the defendant, in appealing and seeking a reversal of the judgment, took the risk of having the case transferred to the Supreme Court, and having the limitation of the amount of the recovery eliminated in the event that it succeeded, as it did, in having the judgment vacated and a new trial granted. [2] We had occasion to consider the validity and effect of the statute authorizing the transfer of cases from the City Court to the Supreme Court in Siegel v. Corvan Co., 157 App. Div. 423, 142 N. Y. Supp. 267, and we construed and sustained it; but we did not then construe it with respect to the point now presented for decision. We have no doubt, however, that it was competent for the Legislature. to authorize the transfer of a cause in the circumstances presented by this appeal, and we think it has done so. It follows that the order should be affirmed, with $10 costs and disbursements. All concur. WILLIAMS PATENT CRUSHER & PULVERIZER CO. v. LYTH TILE CO. (Supreme Court, Special Term, Erie County. November, 1914.) FRAUD (§ 25*)—MISREPRESENTATION-RIGHT TO RELY UPON. While a party who makes an independent investigation cannot thereafter recover for misrepresentations made on the sale of an article, a person who through misrepresentation is induced to make an expensive and protracted investigation, but did not purchase, may recover for the injuries sustained by reason of such representations. [Ed. Note.-For other cases, see Fraud, Cent. Dig. § 24; Dec. Dig. § 25.*] Action by the Williams Patent Crusher & Pulverizer Company against the Lyth Tile Company. On demurrer to defendant's counterclaim. Demurrer overruled. See, also, 162 App. Div. 927, 147 N. Y. Supp. 1150. Bartlett & Chamberlain, of Buffalo, for defendant. BROWN, J. The counterclaim alleges the making of certain enumerated false representations by the plaintiff to the defendant concerning a pulverizing machine, at various times during the negotiations for the purchase thereof by the defendant from the plaintiff; that such representations were calculated to deceive the defendant, and were made by plaintiff with intent to deceive and defraud the defendant; that such representations were false, and known by the plaintiff to be false. when made; that defendant relied upon the same, and was thereby induced to do certain things to his detriment, and was induced to give said machine a trial, etc., at large expense, to his damage, etc. It appears from the complaint that no contract of purchase and sale was ever made by the parties. The plaintiff demurs to the counterclaim, asserting that it does not constitute a cause of action. The counterclaim does allege the representations, the falsity of the same, the reliance thereon, the inducement to act thereon, the deception thereby, and the injury. The allegation that defendant was induced to make this expensive investigation, and was thus deceived and injured by the false representation, is a far different allegation from that which furnishes the basis for the rule that, when a person to whom a false representation is made makes an independent examination, he will be presumed to have relied upon his own judgment, and not upon the representation. If defendant, after having made its examination and investigation, had made a contract to purchase, and had then sought to be relieved therefrom because of the false representations, it is very likely that it would have been confronted by the rule just referred to. But no such situation is here presented. The claim is that it was known to the plaintiff, when it made the false representations, that all of defendant's time and money in making the investigation would be wasted, that plaintiff made the representations for the purpose and with the intent of thus injuring defendant, and that defendant made its investigation, not a contract of purchase, relying *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes upon such representations. The counterclaim is not for damages for deceit in inducing defendant to buy a machine, but for damages for deceit in inducing it to spend time and money in a useless and frivolous examination during negotiations for a purchase that was not made. The demurrer is overruled, with costs. Leave given plaintiff to plead to counterclaim. (164 App. Div. 560) In re LICHTENBERG. (No. 1.) (Supreme Court, Appellate Division, First Department. November 20, 1914.) ATTORNEY AND CLIENT (§ 44*)-MISCONDUCT OF ATTORNEY-CONFLICTING EM PLOYMENT. Where respondent, an attorney, had offices with another, who was attorney for a bankrupt and had been consulted as to the bankruptcy proceedings before he was consulted by attorneys for the creditors, he was guilty of misconduct deserving severe censure in accepting a retainer to act for the creditors against the bankrupt without disclosing to such creditors that he had been previously consulted by the attorney for the bankrupt, and in concealing from the creditors his connection with the bankrupt's attorney. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 55, 56, 62; Dec. Dig. § 44.*] Proceeding to discipline Louis Lichtenberg, an attorney, for alleged professional misconduct. On a referee's report advising censure. Report confirmed. Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, DOWLING, and HOTCHKISS, JJ. Theodore B. Richter, of New York City, for petitioner. INGRAHAM, P. J. The respondent was charged with professional misconduct in certain proceedings in involuntary bankruptcy instituted by him on behalf of creditors against one Joseph Mayer, acting in conjunction with one Nathan Kopf, the attorney for the bankrupt. Kopf has been found guilty of professional misconduct in this proceeding and suspended from practice for one year. The respondent acted for certain creditors of the said bankrupt in procuring an adjudication of said Joseph Mayer as a bankrupt. Kopf and the respondent occupied offices together. Kopf consulted the respondent about this bankruptcy before the respondent was consulted by the attorneys for the creditors, and he undertook to act for the creditors against the bankrupt without disclosing to them that he had been consulted by the attorney representing the bankrupt, and concealing from the creditors his connection. with the said Kopf. Concerning the respondent's connection with this proceeding, the petitioner charged the respondent with having purposely delayed the completion and filing of the petition from Saturday, October 21, 1911, to Monday, October 23, 1911, during which interval the bankrupt disposed of a considerable part of his property to defraud his creditors. *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes The official referee, after a careful investigation, has concluded that this charge was not sustained. But, the official referee reports: "Of course, the respondent remains liable to severe censure for not having acted with the utmost good faith by failing to disclose to Strouse & Strauss (who were the attorneys for creditors) and to the receiver that the attorney for the bankrupt had an office with him. If the proper disclosure had been made, they probably would have acted differently. The further charge that the respondent did not sufficiently examine the bankrupt under section 21a of the Bankruptcy Act does not call for a different conclusion. Mayer was examined on November 11, 1911, and on November 22, 1911, and in the course of his examination he said that he had paid a grocery man $200, a butcher $200, and a man named Kadetski, whose business he did not know, $365. As the estate was small, the representatives of the creditors declined to incur the expense of a further examination and determined to proceed against Mayer for perjury, which they did. Upon the whole case, I am of the opinion that, while the respondent has not been shown to be guilty of the more serious accusations made against him, his failure to disclose that the attorney for the bankrupt had an office with him tended to deceive the creditors and the court and its officers, and constituted misconduct as an attorney and counselor at law." With this conclusion of the official referee we agree. While relieved of the serious charges made against the respondent, it is evident that, when the attorney for the creditors applied to him to undertake proceedings to have Joseph Mayer adjudicated a bankrupt he did not inform them that the attorney for the bankrupt had offices with him and that he had discussed the bankrupt's affairs with the attorney for the bankrupt. Mayer was able to dispose of a considerable portion of his property which belonged to his creditors. In approving of the recommendation of the official referee that the respondent should be censured for his lack of frankness to the attorneys for the creditors who employed him, and for undertaking a proceeding against a bankrupt, when he had advised with and had an office with the attorney for the bankrupt, without informing the creditors of his connection with the bankrupt's attorney, we wish again to emphasize that we shall hold attorneys to the strictest accountability for the utmost good faith in these bankruptcy proceedings, and any suppression of information which would influence the action of creditors, or any collusive action, which results in fraudulent misappropriation of the bankrupt's property, will be treated as serious professional misconduct, which will require discipline. The respondent is therefore censured for his conduct in relation to this bankruptcy proceeding. All concur. (164 App. Div. 472) ADAMI et al. v. GERCKEN. (No. 6139.) (Supreme Court, Appellate Division, First Department. November 20, 1914.) 1. WILLS (§ 634*)-CONSTRUCTION-INTEREST DEVISED. Testator devised land to his wife for life, or so long as she remained his widow; the will providing that in case of her marriage she should take a life estate in only one piece of the property. The testator also directed that, when his youngest child arrived at full age, the residue of his estate should be equally divided among his living children, issue of *For other cases see same topic & § NUMBER in Dec. & Am, Digs. 1907 to date, & Rep'r Indexes |