8 F.(2d) 315

trict, road district, port, or other municipal taxing agency or district, shall be levied on the property therein respectively assessable upon the valuation of such property as shown by the assessment roll last compiled by the assessor, corrected and equalized by the county board of equalization, and including entries therein of assessments as certified by the state board of tax commissioners and apportioned to such municipalities by the county clerk."

At Law. Action by the United States against the Columbus Marine Corporation. Judgment for plaintiff.

Emory R. Buckner, U. S. Atty., of New York City (William B. Gray, Jr., Sp. Asst. U. S. Atty., of New Rochelle, N. Y., of counsel), for the United States.

Loomis & Ruebush, of New York City (Homer L. Loomis, of New York City, of counsel), for defendant.

GARVIN, District Judge. This is an action to recover the sum of $1,708.74, with interest thereon from October 20, 1921, alleged to be due the plaintiff from defendant because of a breach of contract by the latter. A jury has been waived. It appears that the parties agreed in writing, the plaintiff to let to defendant, and defendant to take from plaintiff, freight room for 8,500 bales of high-density compressed cotton on board the steamship Schoon, which was due at Galveston, Tex., about October 19, 1921, to go

Taxes thus levied are the character of taxes to which section 66 of the act alludes, and none other. The section cannot, by the utmost stretch of the rules of statutory interpretation, cover assessments for local improvements in cities and towns. They are not taxes levied upon the properties designated by the act, nor within the sense and purpose thereof. They are special assessments authorized by the municipality, and not in pursuance of the general system provided for the levy and collection of taxes. Section 4373, Oregon Laws, is therefore without ap- from there to the port of Genoa, Italy. The plication in the present controversy. Motion to dismiss sustained.

UNITED STATES v. COLUMBUS MARINE
CORPORATION.

(District Court, S. D. New York. August 13,
1925.)

1. Courts 99(1)-District Judge's denial of motion to stay proceedings in action for breach of contract law of case, followed by District Judge before whom action is pending.

District Judge's decision, denying motion to stay proceedings in action for shipper's breach of affreightment contract until plaintiff complies with arbitration clause therein, is law of case and will be followed by District Judge before whom action is pending.

2. Shipping 52-Railroad strike no excuse for nonperformance of shipper's obligation to supply cargo, in absence of such provision in contract.

That railroad strike prevented shipper from supplying cargo is no excuse for nonperform

ance of contract, in absence of such provision

therein.

3. Shipping 58(2)—Testimony of shipper's 'agent as to refusal of cargo at higher rate than that of cargo subsequently accepted held not credible.

In action for shipper's breach of contract by failure to furnish cotton cargo, testimony of defendant's agent that plaintiff refused grain cargo at 22 cents per 100 pounds before accepting cargo of like grain at only 20 cents per 100 pounds held not credible, as against denial of such offer by plaintiff's witness.

defendant was to pay therefor 50 cents per 100 pounds.

The issues to be determined by the court are three in number:

[1] First. The defendant urges that the proceedings should be stayed until plaintiff has complied with an arbitration clause in the contract of affreightment. It appears, however, that on February 17, 1925, District Judge Augustus N. Hand heard and denied a motion for a stay upon the ground stated. His decision is the law of the case and will be followed.

[2] Second. It is contended that a railroad strike prevented the defendant from supplying the cargo in question. It does not appear that the contract contains any provision which excuses the defendant from performing because of any strike, and inasmuch as the defendant has undertaken to

discharge an obligation without qualification, the fact that a strike occurred presents no excuse for nonperformance.

[3] Third. It is finally insisted that the defendant, being unable to perform, offered plaintiff a cargo of grain at 22 cents per 100 pounds, to take the place of the cotton which it could not deliver, and that plaintiff refused to accept this grain cargo, but received in place thereof another cargo of grain at a rate of 20 cents per 100 pounds, which resulted in a claim for a set-off of $600.

This question must be determined upon the proof offered. Nicolini, who was the agent of defendant at Galveston, testified that he

8 F.(2d) 317

sustained. The exception did not go to the merits, but merely to the uncertainty and indefiniteness of the libel. An amended libel was filed, and an answer thereto, taking issue upon the allegations therein, and after the case was assigned for trial a voluntary dismissal was taken without prejudice before the day of trial. It is manifest that the ruling of the court upon the exceptions did not result in a final disposition; it was an order upon a preliminary question during the progress of the case, and was interlocutory, as distinguished from a final hearing. The hearing on the issue raised by the pleadings was not final. This case is clearly distinguished from Albion Lumber Co. v. Inter-Ocean Trans. Co. et al. (D. C.) 240 F. 1019.

The motion is granted as to the proctor's fees, and in other respects denied.

nied.

Thereafter the defendant requested that the court take the matter under advisement further, in order that the testimony might be written out and a brief submitted in behalf of the defendant, with an opportunity to plaintiff to submit a brief, if she so desired. The testimony has been transcribed and a copy furnished to the court with defendant's brief. No brief has been received from plaintiff. After careful con sideration, I have reached the conclusion that the motion to set aside the verdict and dismiss the complaint should have been granted, or certainly a verdict directed for the defendant upon the whole case.

If plaintiff's intestate was not engaged in work connected with interstate commerce at the time of his death (assuming he was killed), plaintiff cannot recover. It appears from the testimony that plaintiff's intestate was clearing up débris prior to the completion of a stairway which was being built

revd 1TJ(3d) 2/3 through a tube for use in permitting pas

CLEMENCE v. HUDSON & M. R. Co. (District Court, S. D. New York. August 13, 1925.)

Commerce 27 (8)-Workman clearing débris prior to completion of stairway to be used in interstate commerce held not engaged in "interstate commerce."

Plaintiff's intestate, engaged in clearing up débris prior to completion of stairway to be built through a tube for use in permitting passengers or employees of railroad to reach street, held not engaged in "interstate commerce"; stairway before completion and employment for purpose intended being not connected with interstate commerce.

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]

At Law. Action by Juliana Clemence, as administratrix, against the Hudson & Manhattan Railroad Company. On motion to set aside verdict for plaintiff. Motion granted, and verdict directed for defendant.

sengers or employees to reach the street in case of necessity. The tube had never been used for such a purpose, and therefore until the stairway was completed and employed for the purpose for which it was intended it could not be said to be connected with interstate commerce, under the authorities. There was some testimony from which it might be found that plaintiff was cleaning up a room just off the shaft; but it is clear. I think, from the entire record, that this clean-up work was necessary only because of the fact that the stairway was being constructed. Therefore, as the work upon which plaintiff's intestate was engaged was not interstate commerce, there can be no recov

ery.

In addition, it is exceedingly doubtful whether plaintiff has proved that the deceased came to his end as a result of a shock tion of interstate commerce), I cannot esof electricity. Indeed (aside from the quescape the conclusion that plaintiff did not John C. Robinson, of New York City, for meet the burden of proof which she was replaintiff.

R. C. Goodale, of New York City (Walter G. Evans, of New York City, of counsel), for defendant.

GARVIN, District Judge. At the close of the trial a motion was made by defendant to set aside a verdict, which had been rendered by a jury in favor of plaintiff, for the sum of $21,000. The motion was de

quired to assume by showing that her husband came to his death as a result of an electric shock. The decision, therefore, denying this motion, is recalled, and a verdict is directed for the defendant upon the whole

case.

Plaintiff may have a stay of execution of 90 days, and 90 days to make a case on appeal, both running from the date of the filing of this opinion.

be inferred that the building was a residence occupied by one family, it was in fact a two or three family house. I have no doubt that it may be shown that a warrant, valid on its face, is in fact invalid because of a defective description of the property to be searched.

[2] There is no such difficulty here with respect to the building involved, for there is no suggestion that there is another in Yonkers known as No. 17 Seymour street. It is defendants' contention that, by reason of the fact that the building is of a type corresponding to a small apartment house, the search warrant is invalid, because that fact does not appear therein. It has been held that a warrant is not to be vacated on the bare ground that the premises described and to be searched were an apartment house. U. S. v. Wihinier (D. C.) 284 F. 528. The search was limited to that part of the premises in which there was proof that illegal transactions in intoxicating liquors had been

had before the warrant was issued. This was within the authority of Steele v. U. S., 267 U. S. 498, 45 S. Ct. 414, 69 L. E. 757.

The motion to vacate the warrant is denied.

It seems to be the law of this district to deny applications for the return of liquor. seized as in the case at bar. The application for an order directing the return of the property seized is therefore denied.

UNITED STATES v. LIEBERMAN et al.

Criminal law

1925.)

274-That prosecuting attorney moved to nolle prosequi indictment of two defendants held not to entitle defendant jointly indicted, who had pleaded guilty, to leave to withdraw plea.

GARVIN, District Judge. This is a motion by the defendants to set aside a search warrant and to direct the return of intoxicating liquor and stills seized thereunder. The warrant was issued and directed against (District Court, E. D. New York. October 19, the premises described as a certain threestory brick and stucco building at No. 17 Seymour street, Yonkers, Westchester county, N. Y., upon an affidavit which described the premises with particularity and set forth the sale of intoxicating liquor in a kitchen on the second floor building. This affidavit further set forth clearly that not only the house, but a garage on the premises, was being used in connection with violations of the National Prohibition Law (Comp. St. Ann. Supp. 1923, § 101384 et seq.). The search warrant permitted a search of the building (which was described as a residence) and included the cellar, the subcellar, and the garage to which reference has been made. A large quantity of liquor and two copper stills were seized.

[1] This application to vacate is made on the ground that although, from a reading of the search warrant and affidavit, it would

Prosecuting attorney's motion to nolle prosequi indictment of two defendants charged with conspiracy held not to entitle a third defendant, who had been jointly indicted and who pleaded guilty, to leave to withdraw his plea of guilty, or to be heard on government's motion as to his codefendants.

Max Lieberman and two others were jointly indicted for conspiracy, and Max Lieberman pleaded guilty. On motion for leave to withdraw plea of guilty, after prosecuting attorney had moved to nolle prosequi indictment as to other defendants. tion denied.

Mo

Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y. (Joseph M. Crooks, Asst. U. S. Atty.,

8 F.(2d) 319

of Brooklyn, N. Y., of counsel), for the United States.

Bertha Rembaugh, of New York City, for defendants.

GARVIN, District Judge. Defendant Lieberman, with two other defendants, was indicted for conspiracy. He pleaded guilty. The other two defendants went to trial, and the jury disagreed. The United States attorney now moves to nolle prosequi the indictment as to the latter two defendants. Lieberman objects, claiming that the government cannot urge that these two defendants

first time registering a complaint. I cannot believe that he is not guilty; at most, he can be seeking to change his plea in order to escape the consequences of guilt, not because of his innocence, but because conditions have changed since his plea was entered, so that his conviction after trial might be difficult. His motion for leave to withdraw his plea of guilty is denied.

UNITED STATES v. DEBRUYN.

1925.)

are innocent of conspiracy and yet accept (District Court, E. D. New York. June 22, Lieberman's plea of guilty and move sentence on him.

1. Pardon

9-Pardon effects not only release from imprisonment but cancellation of fine.

Pardon and restoration of civil rights of one sentenced to term of imprisonment and to pay fine in addition effects, not only release from imprisonment, but cancellation of fine. 2. Prisons 15-Commutation of sentence before termination of term of imprisonment held to carry with it cancellation of unpaid fine.

It does not follow that the government contends that these two defendants are innocent. The motion to dismiss may be made upon the ground that the evidence against them is weak, that material witnesses left, died, disappeared, or recanted, or that various other considerations have arisen which make further prosecution contrary to the best interests of justice. This defendant urges that he cannot be guilty of conspiracy if his two codefendants are not found guilty also, citing United States v. Hamilton, Fed. Cas. No. 15,288; but that case is direct authority for the proposition that a defendant, A., who is indicted for conspiracy with B., C., and various other persons to the grand jury unknown (as in the case at bar), may be convicted, while B. and C. are acquitted. tion must be construed most favorably towards

The court holds in the Hamilton Case, supra:

"Under the counts which charge the defendants with conspiring together, if one be acquitted, the other also must be acquitted, though he be guilty of doing the act charged. But under those counts which charged them with conspiring with persons to the grand jurors unknown, if the evidence satisfies the jury, beyond a reasonable doubt, that, although the defendants may not have conspired together, yet if one of them did, in fact, with some third person, not named in the indictment, and unknown, to commit the offenses charged, and either one of such persons did any one of the overt acts charged, the defendant who so conspired may be found guilty."

The defendant Lieberman has pleaded guilty, and cannot be heard on the government's motion as to the other two defendants. That motion is granted.

An indictment duly charging a crime was filed against the defendant Lieberman. He duly pleaded guilty, and only now is for the

Commutation of sentence before termination of term of imprisonment held to effect not

only release from imprisonment, but also re-
lease from liability for payment of fine imposed
at time of imprisonment.
3. Pardon

9-Prisons

15-Document in

nature of pardon or commutation construed most favorably to prisoner.

Document in nature of pardon or commuta

prisoner when ambiguous.