(147 N.E.)

reason of which plaintiff, while in the course | the reasonable cost of conducting the deof his employment, fell down a stairway and received the injuries complained of.

Walter L. Glenney and Bertrand L. Pettigrew, both of New York City, for appellant. Arthur T. O'Leary, of New York City, for respondent.

fense.

Laurence C. Stryker, for appellant.

New York City,

Copal Mintz and Louis S. Posner, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

PER CURIAM. Judgment affirmed, with costs. costs.

HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur.

HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur.

EMPLOYERS' LIABILITY ASSURANCE
CORPORATION, LIMITED, OF LONDON,
ENGLAND, Appellant, v. NEW YORK LIN-
EN SUPPLY & LAUNDRY COMPANY, Inc.,
Respondent.

(Court of Appeals of New York. Nov. 25,
1924.)

2

Catherine A. EGER, Appellant, v. CITY OF
NEW YORK, Respondent.

(Court of Appeals of New York. Nov. 25,
1924.)

in the city of Brooklyn in proper repair. Plaintiff, while walking along said street about 10:30 at night, stepped into a hole in the sidewalk and falling received the injuries complained of. The Appellate Division held that it was error for the trial court to charge that if the hole was less than four inches deep, but was obscured by shadows, a question of fact as to the liability of the city was presented, and to refuse to charge that if the jury find the depression to have been less than four inches then the city was not liable.

Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (206 App. Div. 718, 200 N. Y. S. 921), entered May 24, 1923, reversAppeal from a judgment, entered June 10, ing a judgment in favor of plaintiff entered 1924, upon an order of the Appellate Divi- upon a verdict and granting a new trial in sion of the Supreme Court in the First Ju- an action to recover for personal injuries aldicial Department (209 App. Div. 803, 204 N. leged to have been sustained by plaintiff Y. S. 906), which affirmed an order of Special through the negligence of defendant in failTerm granting defendant's motion for judging to keep the sidewalk on Bedford avenue ment on the pleadings. The action was brought by the plaintiff, an insurance corporation, under subrogation to the rights of its policy holder, Otis Elevator Company, to recover upon an indemnity agreement made between Otis Elevator Company and the defendant New York Linen Supply & Laundry Company, Inc. The Otis Elevator Company, under a contract with the defendant, constructed and installed an elevator in premises owned by the defendant, and the indemnity agreement in question was entered into at a time when the elevator was handed over to the possession and control of the defendant, at the defendant's request, prior to the completion of the work under the contract. An accident having occurred to one Harry Smith while the elevator was being operated by the defendant, and the Otis Elevator Company have been sued by said Harry Smith for damage for personal injuries, and the plaintiff, under its policy of insurance with the Otis Elevator Company, having defended the action and having paid a judgment recovered by Smith against the Otis Elevator ComHISCOCK, C. J., and CARDOZO, POUND, pany, brings this action to recover the MCLAUGHLIN, CRANE, ANDREWS, and amount of the judgment in that action, and LEHMAN, JJ., concur.

Ralph G. Barclay and Charles F. Hulseman, both of Brooklyn, for appellant.

George P. Nicholson, Corp. Counsel, of New York City (Charles J. Druhan, of New York City, and Joseph P. Reilly, of Brooklyn, of counsel), for respondent.

PER CURIAM. Order affirmed, and judgment absolute ordered against appellant on the stipulation, with costs in all courts.

די

Oscar H. WILLSON, Appellant, v. AMERI-
CAN RAILWAY EXPRESS COM-
PANY, Respondent.

(Court of Appeals of New York. Nov. 25,

1924.)

HISCOCK, C. J., and CARDOZO, Mc-
LAUGHLIN, CRANE, ANDREWS, and
LEHMAN, JJ., concur.
POUND, J., not voting.

2

August LOHMAN, Respondent, v. Max M.
HART et al., Appellants.

(Court of Appeals of New York. Nov. 25, 1924.)

Appeal, by permission, from a judgment, entered January 19, 1923, upon an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (204 App. Div. 59, 197 N. Y. S. 600), reversing a judg ment of the Niagara County Court, which modified and affirmed as modified a judgment of the City Court of Lockport in favor of plaintiff, and directing a dismissal of the Appeal from a judgment of the Appellate complaint and judgment in favor of defend- Division of the Supreme Court in the Second ant upon its counterclaim. The action was Judicial Department (209 App. Div. 836, 204 brought to recover damages in conversion for N. Y. S. 924), entered June 2, 1924, modifyfailure of the defendant to deliver at Lexing- ing, and affirming, as modified, a judgment in ton, Ky., a shipment of cantaloupes from Ho- favor of plaintiff entered upon a verdict. ratio, Ark., to Terre Haute, Ind., and from The action was brought to recover $1,600 alTerre Haute, Ind., to Lexington, Ky. The leged to have been obtained by the defendants defendant, in its defense, denied liability for from the plaintiff on or about the 1st day of this amount and interposed a counterclaim June, 1922, through alleged false representafor an amount representing the difference be- tions by the defendants. The complaint in tween the freight rates from Horatio, Ark., to substance alleged that while the plaintiff was Terre Haute, Ind., and from Terre Haute to under arrest and in custody charged with viLexington, Ky., and the amount realized by olation of the Volstead Act, these defendants the defendant from the sale of said shipment. falsely represented to the plaintiff that his It is undisputed that defendant's local agent bail had been fixed at $5,000, and that if he informed plaintiff that the car might be di- would secure the defendants to the extent of verted from Terre Haute to Lexington, and $2,000 they would furnish the additional $3,that plaintiff so directed, and that, never-000 as the indemnity for such bail, that the theless, the car was reconsigned, adding ma- plaintiff, relying upon such misrepresentaterially to the express charges, by reason of which the consignee refused to accept the shipment. The defense was that the car could not be diverted under the tariff rates and rules approved by the Interstate Commerce Commission and in force at that time, and that any agreement to divert the car in violation of the rates and rules on file with said Commission was void and not binding upon the defendant.

Montford C. Holley, of Lockport, for appellant.

Percy R. Smith, of Buffalo, for respondent.

tions, gave to the defendants $1,600, that
the plaintiff's bail was actually fixed at $1,-
000, and that the defendants refused to re-
turn the said $1,600.

Henry Epstein and Maurice Smith, both of
New York City, for appellants.
William L. Wemple, of New York City, for
respondent.

PER CURIAM. Judgment affirmed with costs.

HISCOCK, C. J., and CARDOZO, POUND,

PER CURIAM. Judgment affirmed, with MCLAUGHLIN, CRANE, ANDREWS, and

costs.

LEHMAN, JJ., concur.

John H. Clogston and John L. George, both William LEYKAUF, Respondent, v. NEW of Buffalo, for appellant.

(147 N.E.)

Hobart S. Bird and Frank H. Richmond, PER CURIAM. Order affirmed, and judgboth of New York City, for appellant. ment absolute ordered against appellant on the stipulation, with costs in all courts.

Guernsey Price and John Edmond Hewitt, both of New York City, for respondent.

PER CURIAM. Judgment affirmed with

costs.

HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur.

Dayton M. ROUNDS et al., Respondents, v.
Herbert W. FITZGERALD, Appellant.
(Court of Appeals of New York. Nov. 25,
1924.)

Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (207 App. Div. 534, 202 N. Y. S. 595), entered January 16, 1924, reversing a judgment in favor of defendant entered upon a verdict and granting a new trial. The action was to recover for damage to plaintiff's van arising from a collision with one of defendant's trucks at the corner of State and Eldredge streets in the city of Binghamton. The two vehicles were approaching each other on opposite sides of State street-the van going south; the motor truck going north. As they approached, they were substantially the same distance from the intersection of the two streets and going at substantially the same rate of speed, about 15 miles per hour. As defendant's truck approached the intersection the driver made a signal by extending his hand. As he reached the intersection he turned abruptly to his left to enter Eldredge street. He proceeded and the collision occurred on the westerly side of State street. The Appellate Division held that it was error for the trial court, in response to a request to charge "that if the jury find that both the plaintiffs and defendant were an equal distance from the center of Eldredge and State streets, both approaching at the same rate of speed, the plaintiffs would be entitled to proceed across that intersection first," to charge that "the same rule applies to both parties that under the circumstances they were both bound to use the same degree of care and caution that a reasonably prudent man would have used under such circumstances."

Arthur J. Ruland and Charles H. Burnett, both of Binghamton, for appellant. Clarence L. Chamberlain, of Binghamton, for respondents.

HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur.

2

Frieda DAVIDSON, Respondent, v. Moses
SHINDLER, Appellant. Solly DAVIDSON,
Respondent, v. Moses SHINDLER, Appel-
lant.

(Court of Appeals of New York. Nov. 25, 1924.)

Appeal, in the first above-entitled action, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (208 App. Div. 801, 203 N. Y. S. 926), entered April 14, 1924, modifying and affirming as modified 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. Appeal, in the second above-entitled action, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department, entered April 14, 1924, 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 defendant was the proprietor of a summer boarding house known as the Wayside Inn, located between Hurleyville and Loch Sheldrake, in the county of Sullivan. Plaintiffs selected a room in this hotel and the proprietor of the hotel or his servants or agents engaged to take plaintiffs to get their baggage. The hotel was situated on a hill. The automobile which was to take the plaintiffs stopped at the side of the hotel facing downhill. The driver of the car was the defendant's bookkeeper. Plaintiffs got into the car, which was a Ford runabout, and the driver drove a few feet when he was called to the office by a departing guest. He stopped the car and directed plaintiffs to remain while he went into the office, and while plaintiffs were sitting in the car it started down the incline and hit a telephone pole, and plaintiffs sustained the injuries complained of.

Ellsworth Baker, of New York City, for appellant.

Gilbert D. Steiner, of New York City, for respondents.