ing thereto: "The appellant argued in this court that the action should have been dismissed for want of jurisdiction as brought in derogation of the exclusive jurisdiction of the federal court the receivership action of Morehead v. Strycker to liquidate the syndicate affairs." See 218 N. Y., 112 N. E. 1075.

CRASS et al., Appellants, v. RYAN et al., Respondents. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (159 App. Div. 900, 143 N. Y. Supp. 1145), entered November 13, 1913, affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term in an action of ejectment. Auguste Sommerkorn died on June 24, 1907, in the county of New York. Upon her death her death_her heirs discovered that the plaintiffs' testator, Perrin H. Sumner, claimed the title to certain property under an alleged deed purporting to have been made by the decedent, Auguste Sommerkorn, to Perrin H. Sumner's son, A. Ewing Sumner, two months prior to the death of Auguste Sommerkorn. Upon discovering this fact, an action, prior to this action, was begun by the heirs. The prayer for relief in the complaint in the former action asked the court to set aside the deeds under which the plaintiffs' testator in this action, at that time, claimed title and to bar him from all right and title to the property. The result of the former action was that three deeds to the property were canceled on the ground of fraud, and the plaintiffs' testator was barred from all right or title to the property. After a lapse of about two years, following the trial and entry of judgment and appeal, the plaintiffs' testator, Sumner, came forward with another deed and claimed title to the same property from which he was barred by the former judgment. This second alleged deed is the basis of the present action. Joseph M. Williams, of New York City, for appellants. Patrick L. Ryan and William Brunner, both of New York City, for respondents.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, SEABURY, and POUND, JJ., concur.

CURTISS, Respondent, v. CURTISS, Appellant. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (160 App. Div. 914, 145 N. Y. Supp. 1119), entered January 15, 1914, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action to recover on a promissory note reading as follows: "$5,000.00. Oswego, N. Y., June 27,

1901. For value received and other considerations, I promise to pay my nephew, Milton A. Curtiss, or his heirs, eight years after date or at the death of my wife Marjorie A. Curtiss, Five Thousand Dollars ($5,000.00), with use. Interest due and payable when the note is paid. [Signed] J. Curtiss." The defense was lack of consideration. John L. Mournighan, Merrick Stowell, and Ezra A. Barnes, all of Oswego, for appellant. Leroy B. Williams, of Syracuse, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

21, 1915, affirming a judgment in favor of plaintiffs entered upon a decision of the court on trial at Special Term, which granted a permanent injunction to the plaintiffs restraining the defendants from refusing, during the continuance of a certain contract, to deliver to the plaintiffs in their sea dumpers ashes and street sweepings. Lamar Hardy, Corp. Counsel, of New York City (E. Crosby Kindleberger, Terence Farley, and John F. Collins, all of New York City, of counsel), for appellants. Nathan L. Miller, of Syracuse, and Mark Ash, of New York City, for respondents.

PER CURIAM. Judgment affirmed, with

costs.

COLLIN, CUDDEBACK, CARDOZO, SEAWILLARD BARTLETT, C. J., and CHASE, BURY, and POUND, JJ., 'concur.

DEICHES, Respondent, v. WESTERN DEVELOPMENT CO., Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (164 App. Div. 948, 149 N. Y. Supp. 1078), entered January 19, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover upon certain promissory notes. The answer of the defendant admits the making of the notes, denies that the plaintiff was duly appointed receiver of the Etna Indemnity Company or has any right, power or authority to bring the action, denies that the notes form part of the property and assets of the Etna Indemnity Company, and pleads four separate and distinct defenses. Upon the trial the only defense urged by the defendant was that set up in the first separate defense, the allegations of which are that the notes were executed and delivered by the defendant to the Etna Indemnity Company pursuant to a written agreement between the defendant, the Etna Indemnity Company and Otto Heinze & Co.; that the agreement recites that the Etna Indemnity Company owned or controlled

certain judgments against Otto Heinze & Co.; but that the Etna Indemnity Company did not own or control any judgments against Otto Heinze & Co., and that there was

a total failure of consideration for the notes. In that defense is also set up a counterclaim for $5,000 paid to the Etna Indemnity Company. Franklin Bien, of New York City, for appellant. T. Tileston Wells, George M. Mackellar, and Robert Gerbracht, Jr., all of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

COCK, COLLIN, CUDDEBACK, HOGAN, WILLARD BARTLETT, C. J., and HISSEABURY, and POUND, JJ., concur.

DE MEYER, Respondent, v. BREITUNG et al., Appellants. (Court of Appeals of New York. May 30, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (156 N. Y. Supp. 1120), entered February 3, 1916, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover a balance alleged to be due as the purchase price of certain shares of stock. The motion was made upon the ground that the appeal was taken solely for delay, that it was without merit and that by the time the appeal could be heard in regular order the question involved would be academic. George Boochever, of New York City, for the motion. Otto C. Sommerich, of New York City, opposed.

DAILEY et al., Respondents, v. CITY OF NEW YORK et al., Appellants. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Depart

PER CURIAM. Motion denied, with $10

DEMPSEY, Appellant, v. CITY OF NEW YORK, Respondent. (Court of Appeals of New York. May 12, 1916.) Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (169 App. Div. 956, 153 N. Y. Supp. 1112), entered June 9, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant. Plaintiff was injured by an automobile owned and operated by defendant. The sole point in the case is whether, under the pleadings, the plaintiff was compelled to prove the service of legally sufficient notices. Ralph G. Barclay and Robert Stewart, both of Brooklyn, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Edward A. Freshman, Thomas F. Magner, and George A. Green, all of Brooklyn, of counsel), for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur.

DICK et al., Respondents, v. BUSCH, Appellant. (Court of Appeals of New York. May 30, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (157 N. Y. Supp. 1123), entered February 14, 1916, affirming a judgment in favor of plaintiffs entered upon the report of a referee in an action by plaintiffs, stockbrokers, to recover a balance alleged to be due from defendant, a customer, arising from such defendant's trading in stocks. The motion was made upon the ground that no questions of law were involved. Harry Baer, of New York City, for the motion. W. Russell Osborn, of New York City, opposed.

PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion.

DONOVAN, Respondent, v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (167 App. Div. 944, 151 N. Y. Supp. 1120), entered March 8, 1915, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action on a policy of life insurance. One William Hartnett, son of plaintiff's testatrix, became a member of defendant brotherhood in July, 1908. He remained a member in good standing until the 30th of July, 1910. The constitution of said appellant provided that assessments of members were due and payable on or before the 1st day of each month. The assessments due on the 1st of August were not paid until the 29th of August, 1910, when said Hartnett caused them to be paid to the local financial secretary of said appellant, who received them, made out and delivered a receipt for the same, and signed a certificate to the effect that said William Hartnett was in good health. On the 1st of September, 1910, Hartnett became ill, went to a hospital, and died on the 5th of September, 1910. The local financial secretary of said defendant failed to forward the delinquent assessments and the certificate of health and the request for reinstatement to the grand secretary of said defendant until the 3d day of September, 1910. The 4th and 5th days of September, 1910, Sunday and Labor Day, were legal holidays. Said assessments, certificate, and request did not reach the grand secretary until the 6th day of September, when the notice of death sent on the 5th reached the grand secretary in

the same mail. The appellant refused to reinstate said insured, and after proofs of death were submitted refused to pay the benefits under said policy. Herbert N. Babcock, of Elmira, for appellant. John F. Murtaugh, of Elmira, for respondent.

PER CURIAM. Judgment affirmed, with costs.

COLLIN, CUDDEBACK, CARDOZO, SEAWILLARD BARTLETT, C. J., and CHASE, BURY, and POUND, JJ., concur.

& IRON WORKS, Appellant. DOOLEY, Respondent, v. HAY FOUNDRY (Court of Appeals of New York. June 6, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (166 App. Div. 896, 150 N. Y. Supp. 1083), entered December 23, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant, his employer. The deceased was standing on an engine which was being lifted from the subbasement of a building to the street, when the engine fell, and he sustained injuries which resulted in his death. The engine had been used by the defendant for the purpose of furnishing power during the construction of the building. As the work for which it was required was finished, it was being taken out of the building for the purpose of removing it to the defendant's yard. The deceased was the engineer who had run this engine for the defendant on the job. It was being hoisted out of the subbasement by means of its own power, and the deceased, therefore, remained on the engine for the purpose of operating it. The engine was almost up to the street floor when it fell. The case was submitted to the jury, solely for them to determine whether the defendant had adopted an improper method in raising the engine. Theodore H. Lord and Lyman A. Spalding, both of Meyer and Eugene Lamb Richards, both of New New York City, for appellant. Rutherford B. York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

COCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

WILLARD BARTLETT, C. J., and HIS

DOSZTAL, Respondent, v. H. G. KOTTEN CO., Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (165 Court in the First Judicial Department (165 App. Div. 986. 150 N. Y. Supp. 1083), entered January 7, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant, his employer. The intestate while at work in defendant's tool-making shop was caught by unguarded belting and received injuries causing his death. The defense was contributory negligence. Ira Jay Dutton and George P. Fall, both of New York City, for appellant. Henry Leon Slobodin, of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

DUDDY v. STANDARD OIL CO. OF NEW YORK et al. (Court of Appeals of New York. May 30, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (164 App. Div. 953, 149 N. Y. Supp. 1078), entered October 8, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover

Supreme Court in the Second Judicial Department (156 N. Y. Supp. 877), entered December 30, 1915, which affirmed an order of Special Term granting a motion to set aside a judgment. The motion was made upon the ground of failure to file the required undertaking. Thomas C. McDonald, of New York City, for the motion. Samuel J. Siegel and Louis H. Solomon, both of New York City, opposed.

PER CURIAM. Motion granted, unless within 10 days the appellant files and serves the necessary undertaking and pays to the respondent $10 costs of this motion; if these conditions are complied with, the motion is denied.

In re HAMILTON PLACE IN CITY OF NEW YORK. (Court of Appeals of New York. June 13, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (155 N. Y. Supp. 1112), entered October 22, 1915, which affirmed an order of Special Term confirming the report of commissioners of estimate and appraisal in condemnation proceedings. The question on appeal was as to the sufficiency of the award and the propriety of the methods adopted by the commissioners in deciding the amount thereof. Thomas C. Blake and Maurice Deiches, both of New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Charles J. Nehrbas, Terence Farley, and Henry W. Mayo, all of New York City, of counsel), for respond

ent.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

HAMILTON TRUST CO. v. DICKERSON et al. (Court of Appeals of New York. May 30, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (157 N. Y. Supp. 1128), entered March 9, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to foreclose a mortgage. The motion was made upon the grounds that the Appellate Division unanimously decided that the findings of fact were supported by the evidence, and that the Court of Appeals had no jurisdiction to review the judgment appealed from. Edward J. Connolly, of Brooklyn, for the motion. Charles L. Craig, of New York City,

opposed.

PER CURIAM. Motion denied, with $10

costs.

HARLEY, Respondent, v. PLANT et al., Appellants. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (168 App. Div. 931, 152 N. Y. Supp. 1116), entered April 28, 1915, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action to recover up on a bond executed by the two defendants, to discharge a mechanic's lien_filed with the comp troller of the city of New York by the plaintiff against funds due one Peter Guthy on a municipal contract, the validity of the lien having been established in a previous action in which the sureties were not parties. James Troy, of Brooklyn, and Frank S. Angell, of New York City, for appellants. George W. Titcomb and Frank E. Johnson, Jr., both of Brooklyn, for

respondent.

PER CURIAM. costs.

Judgment affirmed, with

WILLARD BARTLETT, C. J., and CHASE, CUDDEBACK, CARDOZO, SEABURY, and POUND, JJ., concur. COLLIN, J., not voting.

HEITZ, Respondent, v. RUPPERT et al., Appellants. (Court of Appeals of New York. May 30, 1916.)

PER CURIAM. Motion for reargument denied, with $10 costs. See 218 N. Y. 148, 112 N. E. 750.

HEWLETT BAY CO., Appellant. (Court of HENRY STEERS, Inc., Respondent, V. Appeals of New York. May 30, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (155 N. Y. Supp. 1112), entered December 10, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover compensation for additional work and expense in the performance of a contract. The motion was made upon the ground that the action was for services, that permission to appeal had not been obtained, that the appeal was frivolous, taken solely for delay, and that no proper return had been filed. Charles Thaddeus Terry, of New York City, for the motion. Alfred T. Davison, of Brooklyn, opposed.

PER CURIAM. Motion denied, without costs.

HERRMANN et al., Appellants, v. CABINET LAND CO., Respondent, et al. (Court of Appeals of New York. May 30, 1916.) PER CURIAM. Motion for reargument denied with $10 costs. See 217 N. Y. 526, 112 N. E. 476.

In re HERRMANN'S WILL. (Court of Appeals of New York. May 30, 1916.) Motion to late Division of the Supreme Court in the First dismiss an appeal from an order of the Appel-Judicial Department (158 N. Y. Supp. 1118), entered April 14, 1916, which affirmed an order of the New York County Surrogate's Court denying a motion to vacate and set aside a prior order denying probate to a paper propounded as the last will of Magdalena Herrmann, deceased. The motion was made upon the ground that the order was not appealable as of right to the Court of Appeals and that permission to appeal had not been obtained. Gilbert D. Lamb, of New York City, for the motion. Gustav Goodmann, of New York City, opposed.

PER CURIAM. Motion granted and appeal dismissed, with costs, and $10 costs of motion.

HICKINBOTTOM, Respondent, V. CENTRAL PARK, N. & E. R. R. CO., Appellant. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Supp. 1120), entered June 23, 1914, affirming Department (163 App. Div. 948, 148 N. Y. a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant. Plaintiff's intestate was seated at the end of a to its car barns, when a car on the track inside bench maintained by defendant in front of gates leading to the gates was started by an employé of the defendant, and while under his management crashed into the gates with such force as to push them forward and outward against the bench and hurl the plaintiff's intestate to the ground, causing injuries from which he died. for the injuries for the reason that the employé's Defendant answered that it was not responsible act was beyond the scope of his employment, was unauthorized and unsanctioned by defendant, and was not in furtherance of the work he was employed to do. Furthermore, that plaintiff's intestate had no right to sit upon the bench, which was for the use of defendant's employés and not for the use of the public, and that the intestate had been warned against using the