Misc.] Supreme Court, December, 1917. examined some of the authorities but will mention only two, namely, the Geismer Case, 102 N. Y. 563, and the Blackstock Case, 20 id. 48. As distinguished from both these typical cases, the failure to deliver in the usual time in the case now before me is claimed in the answer to be due neither to mob violence, or the like, on the one hand, nor to mere failure of employees of the carrier corporation to do their duty; but the claim is in the main that "at all times mentioned in the complaint the volume of freight traffic over the defendant's lines (and over many other railroad lines) was extraordinarily large and that although this defendant had all necessary facilities on hand for ordinary traffic it was physically impossible to care for the enormous and unusual volume of freight tendered to it at all the times mentioned in the complaint." The further allegation is made that any delay was not due to negligence in the carrier, but solely to the aforesaid congestion of freight and traffic. So, the question arises whether under this answer a condition is made to appear whereunder a railroad was entitled to take freight for carriage knowing that business conditions were such that delivery could not be made within the usual time and this without notifying the shipper of such situation. It may be that had the carrier accepted these goods for transportation under normal conditions, and that thereafter and prior to the commencement of the carrying abnormal conditions such as are pleaded arose, delay in delivery might have been excusable. But in the case at bar, under the conditions made manifest by the portion of the answer in question, the defendant, when it accepted the goods, knew of such conditions reasonably likely to delay delivery and knowing such conditions accepted the goods for transportation without comment. I believe that under such circumstances a shipper is Supreme Court, December, 1917. [Vol. 102. not bound to be apprised of unusual conditions affecting railroad traffic; and that such conditions being peculiarly and here admittedly - within the knowledge of the carrier the latter was bound to at least notify the shipper of possible delay before accepting the goods for carriage. Hence, there being no allegation in the answer that any such notice was given to plaintiff the demurrer is sustained, with costs to plaintiff. Demurrer sustained, with costs. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Plaintiff, v. EDMUND P. COTTLE and Others, Defendants. (Supreme Court, Erie Special Term, December, 1917.) Condemnation Law — an award is "personal property" not "land when state may not claim award on ground of escheat. An award made to the owner of property condemned is in effect a judgment for money which is personalty, and he has an equitable lien on the land condemned as security for the payment of the award. In an action brought by such an owner against the railroad company which instituted the condemnation proceedings, and its receivers, the judgment therein entered declared such equitable lien and directed the same to be enforced by a sale of the property to satisfy it. Held, that assuming that the plaintiff in said action died intestate as to the real property condemned there was no escheat to the state, as the award made was to be deemed personal property and not land. That a motion to confirm the report of a referee appointed, in a condemnation proceeding instituted against the executors of the former owner of the property who had purchased it for themselves and not for the estate, to take the proof in regard to the right, title and claim of various defendants to the award, in favor of the state, upon the theory that the former owner of Misc.] Supreme Court, December, 1917. the property condemned, from which the fund arose, died intestate as to the property, without heirs capable of taking by descent, and for that reason the property escheated to the state and that the award should go to it, will be denied. MOTION for the confirmation of the report of referee. Egburt E. Woodbury, attorney-general, Wilber W. Chambers, deputy attorney-general, and Clarence R. Cummings, for people. Edmund P. Cottle in person and attorney and counsel for Elizabeth E. Cottle, Bessie McK. Cottle and Marion W. Cottle. Adelbert Moot, for Josiah G. Munro. Persons & Blair, for Florence R. Hill, Robert C. Hill and Evelyn C. Hill. Sydney W. Petrie, guardian ad litem, for infant defendants Marion C. Sheldon, Carew Sheldon and Octavia Sheldon, WHEELER, J. This is a motion to confirm the report of a referee appointed by this court to hear the proofs and report in regard to the right, title and claims of various defendants to the award or fund now deposit with the Marine National Bank of Buffalo, made in this proceeding, in and by which report the referee finds that such fund, together with the interest accruing thereon, should be paid to the people of the state of New York. The confirmation of this report is opposed by the other defendants to this proceeding. The report in favor of the state of New York is predicated upon the theory that John J. P. Read, a former owner of the property condemned, from which the fund. arose, died intestate as to the property in question, Supreme Court, December, 1917. [Vol. 102. without heirs legally capable of taking the property by descent, and that therefore the property escheated to the state, and the fund in question should go to it. In order to understand the questions involved it becomes necessary to here state the history of the title to the property condemned. John J. P. Read acquired title in 1876 by purchase. In May, 1883, the New York, West Shore and Buffalo Railway commenced proceedings in this court to condemn the lands in question for railway purposes. The proceeding was continued, and in December, 1883, the commissioners named to determine the damages filed their report awarding $14,500 as the value of the lands taken, and directing in this report the deposit in the bank of certain sums to pay accumulated taxes, and the balance, to wit, the sum of $12,556.98, to be paid to the owner, John J. P. Read. This report was confirmed by order of the court. In June, 1884, the receivers of said railway company were thereafter duly appointed. In September, 1884, the receivers complied with the order so far as the deposit of money for the payment of taxes is concerned, but they did not pay to Read the balance of said award, and he never received it. On July 25, 1885, the said John J. P. Read began an action in this court against the West Shore Railway Company and its receivers, setting up the proceedings of condemnation above recited, and praying said railroad and its receivers be barred and foreclosed of and from all right, title and interest in and to the land condemned. The defendants answered, setting up certain counterclaims and offsets. The issues were tried, and a judgment entered establishing the amount due the plaintiff (after the allowances of certain claims of the defendants, which sum was declared a lien on the land in question), and directing the defendants have leave to redeem said land by the payment of the amount due Misc.] Supreme Court, December, 1917. the plaintiff within a given time, and if the property was not so redeemed directing the premises to be sold by referee (as in cases provided for sale of mortgaged premises), for the purpose of satisfying the demand of the plaintiff as thus established, and, if the property did not bring sufficient to satisfy said claim with costs. and expenses of the sale, that Read, the plaintiff, have a deficiency judgment therefor against said railway company. The judgment further provided the plaintiff or other parties might become a purchaser at said sale. Read, feeling dissatisfied with the allowances made the defendants by way of counterclaim and offset, appealed to the General Term of this court from certain portions of said judgment. Before said appeal was argued, and on the 1st day of February, 1896, the said John J. P. Read died, and on the 14th day of December, 1896, the said appeal in said action was continued by the executors of his will, who were substituted as parties appellant. The appeal was argued and the judgment affirmed by the Appellate Division, and the premises were thereafter and on the 16th day of November, 1898, sold by referee pursuant to said judgment, and on said sale were purchased by Octavius 0. Cottle and Clayton M. Hill individually for the sum of $1,000 and a deed of conveyance to them was made and delivered by the referee appointed to make the sale. The amount of the bid when compared with the award made is small, but it is fair to say that from 1883 to the time of the sale city and county taxes had remained unpaid and tax sales and certificates of sales were outstanding, and the foreclosure sale was made subject to such taxes. The said John J. P. Read left a last will and testament, and at the time the foreclosure sale was had the said Octavius O. Cottle and Clayton M. Hill were acting as the executors thereof, although the purchase was made by them as individual |