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ing thereto: "The appellant argued in this court 21, 1915, affirming a judgment in favor of plainthat the action should have been dismissed for tiffs entered upon a decision of the court on want of jurisdiction as brought in derogation of trial at Special Term, which granted a permathe exclusive jurisdiction of the federal court nent injunction to the plaintiffs restraining the in the receivership action of Morehead y. defendants from refusing, during the continuStrycker to liquidate the syndicate affairs." ance of a certain contract, to deliver to the See 218 N. Y. - 112 N. E. 1075.

plaintiffs in their sea dumpers ashes and street

sweepings. Lamar Hardy, Corp. Counsel, of CRASS et al., Appellants, v. RYAN et al., New York City (E. Crosby Kindleberger, TerRespondents. (Court of Appeals of New York. ence Farley, and John F. Collins, all of New May 23, 1916.). Appeal from a judgment of the York City, of counsel), for appellants. Nathan Appellate Division of the Supreme Court in the L. Miller, of Syracuse, and Mark Ash, of New First Judicial Department (159 App. Div. 900, York City, for respondents. 143 N. Y. Supp. 1145), entered November 13,

PER CURIAM. Judgment affirmed, with 1913, affirming a judgment in favor of defend

costs. ants entered upon a decision of the court on trial at Special Term in an action of ejectment. COLLIN, CUDDEBACK, CARDOZO, SEA

WILLARD BARTLETT, C. J., and CHASE, Auguste Sommerkorn died on June 24, 1907, in BURY, and POUND, JJ., concur. the county of New York. Upon 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 DEICHES, Respondent, v. WESTERN DEbeen made by the decedent, Auguste Sommer-VELOPMENT CO., Appellant. (Court of Apkorn, to Perrin H. Sumner's son, A. Ewing peals of New York. July 11, 1916.) Appeal from Sumner, two months prior to the death of Au- a judgment of the Appellate Division of the Suguste Sommerkorn. Upon discovering this fact, preme Court in the First Judicial Department an action, prior to this action, was begun by (164 App. Div. 948, 149 N. Y. Supp. 1078), enthe heirs. The prayer for relief in the com- tered January 19, 1915, affirming a judgment plaint in the former action asked the court to in favor of plaintiff entered upon a verdict diset aside the deeds under which the plaintiffs' rected by the court in an action to recover upon testator in this action, at that time, claimed certain promissory notes. The answer of the title and to bar him from all right and title to defendant admits the making of the notes, dethe property. The result of the former action nies that the plaintiff was duly appointed rewas that three deeds to the property were can- ceiver of the Ætna Indemnity Company or has celed on the ground of fraud, and the plaintiffs' any right, power or authority to bring the actestator was barred from all right or title to the tion, denies that the notes form part of the property. After a lapse of about two years, property and assets of the Ætna Indemnity following the trial and entry of judgment and Company, and pleads four separate and distinct appeal, the plaintiffs' testator, Sumner, came defenses. Upon the trial the only defense urged forward with another deed and claimed title to by the defendant was that set up in the first the same property from which he was barred by separate defense, the allegations of which are the former judgment. This second alleged deed that the notes were executed and delivered by is the basis of the present action. Joseph M. the defendant to the Ætna Indemnity Company Williams, of New York City, for appellants. pursuant to a written agreement between the Patrick L. Ryan and William Brunner, both of defendant, the Ætna Indemnity Company and New York City, for respondents.

Otto Heinze & Co.; that the agreement recites PER CURIAM. Judgment affirmed, with that the Ætna Indemnity Company owned or costs.

controlled certain judgments against Otto

Heinze & Co.; but that the Ætna Indemnity WILLARD BARTLETT, C. J., and CHASE, Company did not own or control any judgments COLLIN, CUDDEBACK, CARDOZO, SEA- against Otto Heinze & Co., and that there was BURY, and POUND, JJ., concur.

a total failure of consideration for the notes.

In that defense is also set up a counterclaim for CURTISS, Respondent, v. CURTISS, Appel- $5,000 paid to the Ætna Indemnity Company. lant. (Court of Appeals of New York. May 23, Franklin Bien, of New York City, for appel1916.) Appeal from a judgment of the Appel- lant. T. Tileston Wells, George M. Mackellar, late Division of the Supreme Court in the and Robert Gerbracht, Jr., all of New York Fourth Judicial Department (160 App. Div. 914, City, for respondent. 145 N. Y. Supp. 1119), entered January 15,

PER CURIAM. Judgment affirmed, with 1914, affirming a judgment in favor of plaintiff

costs. entered upon the report of a referee in an action to recover on a promissory note reading as COCK, COLLIN, CUDDEBACK, HOGAN

WILLARD BARTLETT, C. J., and HIS follows:_"$5,000.00. Oswego, N. Y., June 27, 1901. For value received and other considera' SEABURY, and POUND, JJ., concur. tions, 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, DE MEYER, Respondent, v. BREITUNG et Five Thousand Dollars ($5,000.00), with use. al., Appellants.' (Court of Appeals of New York Interest due and payable when the note is paid. May 30, 1916.) Motion to dismiss an. appea, [Signed] J. Curtiss." The defense was lack from a judgment of the Appellate Division o: of consideration. John L. Mournighan, Merrick the Supreme Court in the First Judicial DeStowell, and Ezra A. Barnes, all of Oswego, partment (156 N. Y. Supp. 1120), entered Feb for appellant. Leroy B. Williams, of Syracuse, ruary 3, 1916, affirming a judgment in favor of for respondent.

plaintiff entered upon a verdict directed by the PER CURIAM. Judgment affirmed, with court in an action to recover a balance alleged costs.

to be due as the purchase price of certain share WILLARD BARTLETT, C. J., and HIS- of stock. The motion was made upon the COCK, COLLIN. CUDDEBACK, HOGAN, ground that the appeal was taken solely fo: SEABURY, and POUND, JJ., concur.

delay, that it was without merit and that by th..

time the appeal could be heard in regular order DAILEY et al., Respondents, v. CITY OF the question involved would be academic NEW YORK et al., Appellants. (Court of Ap- George Boochever, of New York City, for thpeals of New York. May 23, 1916.) Appeal motion. Otto C. Sommerich, of New York City. from a judgment of the Appellate Division of opposed. the Supreme Court in the First Judicial Depart PER CURIAM. Motion denied, with $1.) ment (157 N. Y. Supp. 1121), entered December' costs.

the same mail. The appellant refused to reinDEMPSEY, Appellant, v. CITY OF NEW state said insured, and after proofs of death YORK, Respondent. (Court of Appeals of New were submitted refused to pay the benefits under York. May 12, 1916.) Appeal, by permission, said policy. Herbert N. Babcock, of Elmira, from a judgment of the Appellate Division of for appellant. John F. Murtaugh, of Elmira, the Supreme Court in the Second Judicial De- for respondent. partment (169 App. Div. 956, 153 N. Y. Supp. PER CURIAM. Judgment affirmed, with 1112), entered June 9, 1915, affirming a judg-costs. ment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial COLLIN, CUDDEBACK, CARDOZO, SEA

WILLARD BARTLETT, C. J., and CHASE, Term in an action to recover for personal in- BURY, and POUND, JJ., concur. juries alleged to have been sustained by plaintiff through the negligence of the defendant. Plaintiff was injured by an automobile owned & IRON WORKS, Appellant.

DOOLEY, Respondent, v. HAY FOUNDRY and operated by defendant. The sole point in peals of New York.

(Court of Ap

June 6, 1916.) Appeal the case is whether, under the pleadings, the from a judgment of the Appellate Division of plaintiff was compelled to prove the service of the Supreme Court in the Second Judicial Delegally sufficient notices. Ralph G. Barclay partment (166 App. Div. 896, 150 N. Y. Supp. and Robert Stewart, both of Brooklyn, for ap-1083), entered December 23, 1914, affirming a pellant. Lamar Hardy, Corp: Counsel, of New judgment in favor of plaintiff entered upon a York City (Edward A. Freshman, Thomas F. verdict in an action to recover for the death of Magner, and George A. Green, all of Brooklyn, plaintiff's intestate alleged to have been occaof counsel), for respondent.

sioned through the negligence of defendant, his PER CURIAM. Judgment affirmed, with employer. The deceased was standing on an costs.

engine which was being lifted from the subbaseWILLARD BARTLETT, C. J., and HIS- ment of a building to the street, when the enCOCK, CHASE, COLLIN, 'HOGAN, CARDO- gine fell, and he sustained injuries which resultZO, and SEABURY, JJ., concur.

ed in his death. The engine had been used by

the defendant for the purpose of furnishing powDICK et al., Respondents, v. BUSCH, Ap- er during the construction of the building. As pellant. (Court of Appeals of New York. May the work for which it was required was finished, 30, 1916.) Motion to dismiss an appeal from a it was being taken out of the building for the judgment of the Appellate Division of the Su- purpose of removing it to the defendant's yard. preme Court in the First Judicial Department The deceased was the engineer who had run (157 N. Y. Supp. 1123), entered February 14, this engine for the defendant on the job. It 1916, affirming a judgment in favor of plaintiffs was being hoisted out of the subbasement by entered upon the report of a referee in an action means of its own power, and the deceased, by plaintiffs, stockbrokers, to recover a balance therefore, remained on the engine for the puralleged to be due from defendant, a customer, pose of operating it. The engine was almost up arising from such defendant's trading in stocks to the street floor when it fell. The case was The motion was made upon the ground that no submitted to the jury, solely for them to dequestions of law were involved. Harry Baer, of termine whether the defendant had adopted an New York City, for the motion. W. Russell improper_method in raising the engine. TheoOsborn, of New York City, opposed.

dore H. Lord and Lyman A. Spalding, both of PER CURIAM. Motion granted, and appeal Meyer and Eugene Lamb Richards, both of New

New York City, for appellant. Rutherford B. dismissed, with costs and $10 costs of motion.

York City, for respondent.

PER CURIAM. DONOVAN, Respondent, v. BROTHER

Judgment affirmed, with

costs. HOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN, Appellant. (Court of Appeals

WILLARD BARTLETT, C. J., and HISof New York. 'May 23, 1916.) Appeal from a COCK, COLLIN, CUDDEBACK, HOGAN, judgment of the Appellate Division of the Su-SEABURY, and POUND, JJ., concur. preme Court in the Third Judicial Department (167 App. Div. 914, 151 N. Y. Supp. 1120),

DOSZTAL, Respondent, v. H. G. KOTTEN entered March 8, 1915, affirming a judgment in co., Appellant. (Court of Appeals of New favor of plaintif entered upon a decision of the York. July 11, 1916.) Appeal from a judgcourt on trial at Special Term in an action on ment of the Appellate Division of the Supreme a policy of life insurance. One William Hart- Court

in the First Judicial Department (165 nett, son of plaintiff's testatrix, became a mem- App. Div. 986, 150 N. Y. Supp. 1083), entered ber of defendant brotherhood in July, 1908. He January 7, 1915, affirming a judgment'in favor remained a member in good standing until the of plaintiff entered upon à verdict in an action 30th of July, 1910. The constitution of said to recover for the death of plaintiff's intestate appellant provided that assessments of members alleged to have been occasioned through the negwere due and payable on or before the 1st day ligence of defendant, his employer. The intesof each month. The assessments due on the 1st tate while at work in defendant's tool-making of August were not paid until the 29th of Au- shop was caught by unguarded belting and regust, 1910, when said Hartnett caused them to ceived injuries causing his death. The defense be paid to the local financial secretary of said was contributory negligence. Ira Jay Dutton appellant, who received them, made out and and George P. Fall, both of New York City, delivered a receipt for the same, and signed a

for appellant. Henry Leon Slobodin, of New certificate to the effect that said 'William Hart York City, for respondent. nett was in good health. On the 1st of Sep

PER CURIAM. Judgment affirmed, with tember, 1910, Hartnett became ill, went to a costs. hospital, and died on the 5th of September, 1910. WILLARD BARTLETT, C. J., and HISThe local financial secretary of said defendant COCK, COLLIN, CUDDEBACK, HOGAN, failed to forward the delinquent assessments SEABURY, and POUND, JJ., concur, and the certificate of health and the request for reinstatement to the grand secretary of DUDDY v. STANDARD OIL CO. OF NEW said defendant until the 3d day of September, YORK et al. (Court of Appeals of New York. 1910. The 4th and 5th days of September, May 30, 1916.) Appeal from a judgment of 1910, Sunday and Labor Day, were legal holi- the Appellate Division of the Supreme Court in days. Said assessments, certificate, and request the Second Judicial Department (164 App. Div. did not reach the grand secretary until the 6th 953, 149 N. Y. Supp. 1078), entered October 8, day of September, when the notice of death 1914, affirming a judgment in favor of plaintiff sent on the 5th reached the grand secretary in ' 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. The deceased was an employé of the Standard Oil Company, which had contracted with the defendant Petroleum Iron Works Company for the construction and painting of certain tanks. Deceased was killed by a ladder, used in the painting, being blown over and falling on him while he was engaged in work near the foot of one of the tanks. Lyman A. Spalding and Theodore H. Lord, both of New York City, for appellant. Martin T. Manton and William H. Griffin, both of New York City, for respondent. PER CURIAM. COStS. WILLARD BARTLETT, C. J., and HISCóCK. "CóLLIN, CUISDEBACK, HOGAN, SEABURY, and POUND, J.J., concur.

Judgment affirmed, with

DZUBAK, Respondent, v. WEST SIDE FOUNDRY CO., Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment, entered July 3, 1914, upon an order of the Appellate Division of the Supreme Court in the Third Judicial Department (163 App. Div. 121, 148 N. Y. Supp. 403), which reversed an order of the court at a Trial Term, setting aside a verdict in favor of plaintiff and granting a new trial and directed reinstatement of said verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant, his employer. Plaintiff, a molder, fell while carrying molten metal and was burned. The question at issue was whether or not the master failed to furnish a reasonably safe place to work. Charles Irving Oliver, of Albany, for appellant. William H. Murray, of Troy, and Andrew J. Nellis, of Albany, for respondent.

PER CURLAM. Judgment affirmed, with COStS.

WILLARD BATTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY, JJ., concur.

EMMET, State Superintendent of Insurance, Appellant, v. CITY OF NEW YORK 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 (163 App. Div. 603,

148 N. Y. Supp. 640), entered July 23, 1914, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term. The plaintiff, as liquidator of the business of the Title & Guarantee Company of Rochester, N. Y., brought suit to recover for a conversion by the defendants of certain registered corporate stock of the city of New York, of the conceded value of $41,830, owned by the Title & Guarantee Company. Officers of the Title & Guarantee Company, whose authority was, by writing, limited to a sale, delivered the certificate of stock to defendants in pledge for the obligations of the South Shore Traction Company to the city and as a substitute for a cash pledge previously made by said South Shore Traction Company. An officer of the South Shore Traction Company was present at the time and urged the transaction. The defendants delivered the cash pledge to the South Shore Traction Company, whereupon it was misappropriated from said South Shore Traction Company. That the Title Company was deprived of its property was conceded. The trial justice, however, dismissed the complaint on the theory that a check of the South Shore Traction Company to the order of the Title Company, although in reality no navment, but merely a fraudulent device, gave the transaction, in the eyes of the defendants, an appearance of a sale to the South Shore Traction Company. The trial justice accordingly concluded that, inaslnuch as the stock was ne

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ETTLINGER et al. V. KRAMER et al. (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 (168 App. Div. 949, 153 N. Y. Supp. 1113), entered May 28, 1915, affirming a judgment in favor of the defendants, entered upon a dismissal of the complaint by the court on trial at Special Term in an action in equity to require executors to sell real estate under the terms of a will, and to turn the proceeds over to a trustee to be named by the court, or to remove the executors on account of their neglect for 13 (now 15) years to carry out the terms of the will. Plaintiffs are minors, residuary legatees or remaindermen under the will, which “orders” the executors to divide the estate into six equal parts (and they are granted power of sale for that purpose), to turn the same over to the executors as trustees, and to pay the income from four of these parts to the life tenants, remainder over to their heirs. Alexander S. Bacon, of New York City, for appellants. Henry W. Unger, Newman Levy, and Abraham Levy, all of New York City, for respondents.

PER CURIAM. COStS.

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Judgment affirmed, with

t

FARNUM, Respondent, v. HARRISON, Appellant, et al. (Court of Appeals of New York. May 23, 1916.) Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (167. App. Div. 704, 152 N. Y. Supp. 835), entered April 16, 1915, which affirmed a determination of the Appellate Term, affirming a judgment of the City Court of the City of New York in favor of plaintiff in an action under section 57 of the Stock Corporation Law (Consol. Laws, c. 59) to recover of the defendant, one of the stockholders of the Wishart Dayton Auto Truck Company, the amount of unpaid salary due plaintiff for services rendered to said company as a bookkeeper. The other defendant stockholders have defaulted, the defendant Harrison being the only one to interpose a defense. Hartwell Cabell, of New York City, for appellant. Louis Boehm, of New York City, for respondent.

PER CURLAM. Judgment affirmed, with COStS.

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

FRANKEL, Respondent, v. CITY OF NEW YORK, 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 App. Div. 911, 150 N. Y. Supp. 1086), entered December 3, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. The complaint alleged that said defendant and its agents and servants drove a horse to which was attached a vehicle belonging to and used by the defendant for the collection of dirt, ashes, and garbage so negligently and carelessly that one of the wheels of the vehicle got on the sidewalk whereon the plaintiff was then lawfully and rightfully standing and ran over his left foot, crushed the big toe thereof, and caused other injuries to his foot. Lamar Hardy, Corp. Counsel, of New York City (E. Crosby Kindleberger and Terence Farley, both of New York City, of counsel), for appellant. Samuel Leavitt, of New York City, for respondent. PER CURLAM. Judgment affirmed, with costS. WILLARD BARTIETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY. J.J., concur.

GALLINA, Respondent, v. McGOVERN et al., Appellants. (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. App. Div. 905, 149 N. Y. Supp. 1083), entered November 18, 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 defendants, his employers. The intestate was killed through the breaking of a plank of a scaffold on which he was working causing him to fall. The action was based upon sections 18 and 19 of the Labor Law (Consol. Laws, c. 31). Alfred E. Holmes and Clayton J. Heermance, both of New York City, for appellants. Ludwig L. Scaserra, Harold A. Callan, and Julius Riedler, all of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costS.

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

GARDNER, Respondent, v. CENTRAL PARK, N. & E. R. R. 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 (168 App. Div. 912, 152 N. Y. Supp. 1112), entered April 28, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant. It was alleged that while the plaintiff was standing on the platform of one of defendant's cars waiting for it to stop, the motorman put on power, the car suddenly shot forward with a violent jerk and the plaintiff was thrown from the car, receiving the injuries complained of; that the motorman knew at that time that the plaintiff had come upon the platform with the intention of getting off. Chase Mellen and Martin Taylor, both of New York City, for appellant. David J. Gallert and Walter S. Heilborn, both of New York City, for respondent.

PER CURIAM. COStS.

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

GAS ENGINE & POWER CO. et al., Respondents, v. CITY OF NEW YORK, Appel

Judgment affirmed, with

lant. (Court of Appeals of New York. May 12, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (166 App. Div. 297, 151 N. Y. Supp. 310), entered January 6, 1915, affirming a judgment in favor of plaintiffs entered upon the report of a referee. The action was commenced to recover the amount of a certificate made by the board of assessors of the city of New York purporting to award to the plaintiff, pursuant to chapter 423 of the Laws of 1903, the sum of $310,000, with interest, for damages occasioned to its property by reason of the improvement of 177th street, in the borough of the Bronx, city of New York. The improvement consisted of the construction of a bridge over certain railroad tracks, and the building of approaches to the bridge. The answer denies the material allegations of the complaint and sets up as affirmative defenses: (1) That the award was made before the damage accrued. (2) That the board of assessors was without jurisdiction to make any award to the plaintiff. (3) That the board of assessors was without jurisdiction to award interest. (4) That the award was grossly excessive in amount. Lamar Hardy, Corp. Counsel, of New York City (Charles J. Nehrbas and Terence Farley, both of New York City, of counsel), for appellant. John F. Brennan, of Yonkers, for respondents.

PER CURIAM. Judgment affirmed, with costs, on opinion below.

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

GOLDSTEIN, Respondent, v. NEW YORK STATE RYS., Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department. (164 App. Div. 910, 148 N. Y. Supp. 1117), entered August 5, 1914, affirming a judgment in favor of plaintiff in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant. The complaint alleged that the defendant maintained a double street railway car track on Central and Joseph avenues in the city of Rochester; that at the curve where the cars turn at right angles, at the corner of Joseph and Central avenues, the tracks are so constructed that cars in passing each other at the north end of the curb would strike, but that they could pass safely in the center of the curve; that certain unusually long cars could not be operated on the curve; that the sharpness of the curve and the operation of the long cars created a dangerous situation, and required very careful operation of the cars; that the plaintiff's intestate was riding on the left-hand side step of the car entering the city down Joseph avenue, which was crowded inside and outside, with no room for the plaintiff's intestate to ride, except where he was riding, and that passengers were riding on the outside of the car and were accepted as passengers in that position; that a car bound outward entered the curve at this particular corner and passed to the north end of the curve, when the car inward bound was negligently operated and entered the curve when it should not have done so, and as a result the cars collided and the plaintiff's intestate was killed. Paul Folger, of Rochester, for appellant. Percival De Oviatt, of Rochester, for respondent.

PER CURIAM. . Judgment affirmed, with costS.

WIILARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY, JJ., concur.

In re GRAY. (Court of Appeals of New York. May 12, 1916.) . Motion to dismiss an appeal from an order of the Appellate Division of the

Supreme Court in the Second Judicial Department (156 N. Y. Supp. 877), entered December HEITZ, Respondent, v. RUPPERT et al., Ap30, 1915, which affirmed an order of Special pellants. (Court of Appeals of New York. May Term granting a motion to set aside a judgment. 30, 1916.) The motion was made upon the ground of fail- PER CURIAM. Motion for reargument deure to file the required undertaking. Thomas nied, with $10 costs. See 218 N. Y. 148, 112 C. McDonald, of New York City, for the mo- N. E. 750. tion. Samuel J. Siegel and Louis H. Solomon, both of New York City, opposed. PER CURIAM. Motion granted, unless with HEWLETT BAY CÒ., Appellant. (Court of

HENRY STEERS, Inc., Respondent, v. in 10 days the appellant files and serves the Appeals

of New York. May 30, 1916.) Motion necessary undertaking and pays to the respond to dismiss

an appeal from a judgment of the ent $10 costs of this motion; if these conditions Appellate Division of the Supreme Court in the are complied with, the motion is denied.

First Judicial Department (155 N. Y. Supp.

1112), entered December 10, 1915, affirming a In re HAMILTON PLACE IN CITY OF judgment in favor of plaintiff entered upon a NEW YORK. (Court of Appeals of New York. verdict in an action to recover compensation for June 13, 1916.) Appeal from an order of the additional work and expense in the performance Appellate Division of the Supreme Court in of a contract. The motion was made upon the the First Judicial Department (155 N. Y. Supp. ground that the action was for services, that per1112), entered October 22, 1915, which affirmed mission to appeal had not been obtained, that an order of Special Term confirming the report the appeal was frivolous, taken solely for delay, of commissioners of estimate and appraisal in and that no proper return had been filed. condemnation proceedings. The question on Charles Thaddeus Terry, of New York City, for appeal was as to the sufficiency of the award and the motion. Alfred T. Davison, of Brooklyn, opthe propriety of the methods adopted by the posed. commissioners in deciding the amount thereof. PER CURIAM. Motion denied, without Thomas C. Blake and Maurice Deiches, both of costs. New York City, for appellant Lamar Hardy, Corp. Counsel, of New York City (Charles J. HERRMANN et al., Appellants, v. CABINehrbas, Terence Farley, and Henry W. Mayo, NET LAND CO., Respondent, et al. (Court of all of New York City, of counsel), for respond: Appeals of New York. May 30, 1916.) ent.

PER CURIAM. Motion for reargument dePER CURIAM. Order affirmed, with costs. nied with $10 costs. See 217 N. Y. 526, 112

WILLARD BARTLETT, C. J., and HIS- N. E. 476.
COCK, CHASE, CUDDEBACK, HOGAN,
CARDOZO, and POUND, JJ., concur.

In re HERRMANN'S WILL. (Court of Ap

peals of New York. May 30, 1916.) Motion to HAMILTON TRUST CO. v. DICKERSON late Division of the Supreme Court in the First

dismiss an appeal from an order of the Appelet al. (Court of Appeals of New York. May 30, Judicial Department (158 N. Y. Supp. 1118). 1916.) Motion to dismiss an appeal from a entered April 14, 1916, which affirmed an order judgment of the Appellate Division of the Sus of the New York County Surrogate's

Court depreme Court in the Second Judicial Department nying a motion to vacate and set aside a prior (157 N. Y. Supp. 1128), entered March 9, 1916, order denying probate to a paper propounded as affirming a judgment in favor of plaintiff enter the last will of Magdalena Herrmann, deceased. ed upon a decision of the court on trial at Spe- The motion was made upon the ground that the cial Term in an action to foreclose a mortgage. order was not appealable as of right to the Court The motion was made upon the grounds that of Appeals and that permission to appeal had the Appellate Division unanimously decided that the findings of fact were supported by the York City, for the motion. Gustav Goodmann,

not been obtained. Gilbert D. Lamb, of New evidence, and that the Court of Appeals bad ng of New York City, opposed. jurisdiction to review the judgment appealed from. Edward J. Connolly, of Brooklyn, for the

PER CURIAM, Motion granted and appeal motion. Charles L. Craig, of New York City, dismissed, with costs, and $10 costs of motion. opposed.

HICKINBOTTOM, Respondent, v. CEN PER CURIAM. Motion denied, with $10 TRAL PARK, N. &'E. R. R. CO., Appellant. costs.

(Court of Appeals of New York. May 23, 1916.)

Appeal from a judgment of the Appellate DiviHARLEY, Respondent, v. PLANT et al., Ap-sion of the Supreme Court in the First Judicial pellants. (Court of Appeals of New York. "May Department (163 App: Div. 948, 148 N. Y. 23, 1916.). Appeal from a judgment of the Ap-Supp. 1120), entered June 23, 1914, affirming pellate Division of the Supreme Court in the a judgment in favor of plaintiff entered upon a Second Judicial Department (168 App. Div. verdict in an action to recover for the death of 931, 152 N. Y. Supp. 1116), entered April 28, plaintiff's intestate alleged to have been occa1915, affirming a judgment in favor of plaintifsioned through the negligence of defendant. entered upon a decision of the court at a Trial Plaintiff's intestate was seated at the end of a Term without a jury in an action to recover up to its car barns, when a car on the track insisie

bench maintained by defendant in front of gates on a bond executed by the two defendants,

to leading to the gates was started by an employé discharge a mechanic's lien filed with the comptroller of the city of New York by the plaintiff of the defendant, and while under his manageagainst funds due one Peter Guthy on a munici- ment crashed into the gates with such force as pal contract, the validity of the lien having

been to push them forward and outward against the established in a previous action in which the bench and hụrl the plaintiff's intestate to the sureties were not parties. James Troy, of ground, causing injuries from which he died. Brooklyn, and Frank s. Angell, of New York Defendant answered that it was not responsible City, for appellants. George W. Titcomb and for the injuries for the reason that the employé's Frank E. Johnson, Jr., both of Brooklyn, for act was beyond the scope of his employment, was

unauthorized and unsanctioned by defendant, respondent.

and was not in furtherance of the work he was PER CURIAM. Judgment affirmed, with employed to do. Furthermore, that plaintiff's costs.

intestate had no right to sit upon the bench, WILLARD BARTLETT, C. J., and CHASE, which was for the use of defendant's employés CUDDEBACK, CARDOZÓ, SEABURY, and and not for the use of the public, and that the POUND, JJ., concur. COLLIN, J., not voting.'intestate had been warned against using the

113 N.E.-67

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