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PER CURIAM. Motion to dismiss ap-, William T. Plumb, of Rochester, for the peal denied, and motion for leave to perfect motion. appeal by filing undertaking nunc pro tunc William L. Clay, of Rochester, opposed. granted, on condition that appellant within 10 days files bond and pays respondent $10 PER CURIAM. Motion granted, and apcoşts of motions; otherwise, motion to dis- peal dismissed, with costs and $10 costs of miss appeal granted, and appeal dismissed, motion. with costs and $10 costs of motion,

3

Charles H. SCHUM et al., Appellants, v. Flor. 1

ence L. BURCHARD, Respondent. In the Matter of the Application of Margaret (Court of Appeals of New York. May 12, V. CONNERS, Respondent, for an Order

1925.) Canceling and Discharging of Record an Alleged Attorney's Lien. William L. Clay, Appellant.

PER CURIAM. Motion for reargument

denied, with $10 costs and necessary print(Court of Appeals of New York. May 12,

ing disbursements. See 240 N. Y. 577, 148 N. 1925.)

E. 712, Motion to dismiss an appeal from an order of the Appellate Division of the Supreme

4 Court in the First Judicial Department (210 App. Div. 849, 206 N. Y. S. 894), entered No

Frederick W. HANSON, Respondent, v. Mc. vember 4, 1924, which unanimously affirmed

GRAW-HILL CO., Inc., Appellant. an order of Special Term canceling and dis

(Court of Appeals of New York. May 12, charging an attorney's lien. The motion

1925.) was made upon the ground that the Court of

Motion to dismiss an Appeals had no jurisdiction to entertain the

ppeal from a judgappeal and that appellant had failed to per- ment entered April 9, 1925, upon an order of fect his appeal.

the Appellate Division of the Supreme Court

in the Second Judicial Department (App. Murray L. Gilman, of New York City, for

Div. - 209 N. Y. S. 844), which unanimous. the motion.

ly reversed an order of the court at a Trial William L. Clay, of Rochester, opposed.

Term setting aside a verdict in favor of

plaintiff entered upon a verdict and directPER CURIAM. Motion granted, and ap- ing a dismissal of the complaint and reinpeal dismissed, with costs and $10 costs of stating said verdict. The motion was made motion

upon the grounds that no question was involved which was reviewable by the Court

of Appeals and that the appeal was frivo2

lous. in the Matter of Proving the WILL of Love F. Frederic A. Behrens, of New York City, SEYMOUR, Deceased. Lizzie Dale, Appel- for the motion. lant; Erwin S. Plumb, as Executor, Respond Robert H. Charlton, of New York City, op ent.

posed. (Court of Appeals of New York. May 12, 1925.)

PER CURIAM. Motion denied, with $10

costs. Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department

5 (App. Div. - 207 N. Y. S. 919), entered

FIRST RUSSIAN INSURANCE COMPANY January 14, 1925, which dismissed an appeal

et al., Respondents, V. James A. BEHA, as from a decree of the Monroe County Surro

Superintendent of Insurance of the State of gate's Court admitting to probate the will of New York, Appellant. Love F. Seymour, deceased. The motion was made upon the ground that the Court of Ap (Court of Appeals of New York. May 12,

1925.) peals had no jurisdiction to entertain the appeal and that appellant had failed to file the PER CURIAM. Motion for reargument required undertaking.

denied, with $10 costs and necessary printSee, also, App. Div. 209 N. Y. S. ing disbursements. See 240 N. Y. 601, 148 N. 919.

E. 722.

(148 N.E.)

HISCOCK, C. J., and CARDOZO, Mc

LAUGHLIN, CRANE, ANDREWS, and CLASSIC THEATRE CORPORATION, Ap. LEHMAN, JJ., concur. pellant, v. Nathan. L. AMSTER, Respond POUND, J., absent,

ent, impleaded with Another,

(Court of Appeals of New York. May 12,

1925.)

.

Motion to dismiss an appeal, by permis

3 sion, from a judgment of the Appellate Di- in the Matter of the Application of Henrietta vision of the Supreme Court in the First Ju VOGEL, Respondent, for an Order Canceling dicial Department (App. Div. 207 N.

and Discharging of Record a Mortgage upon Y. S. 821), entered February 2, 1925, unani

Real Property. Scuderi & Taibbi, Appellants. mously affirming a judgment in favor of de

(Court of Appeals of New York. May 15, fendant entered upon a dismissal of the com

1925.) plaint by the court at a Trial Term. The motion was made upon the ground that ap

Appeal from an order of the Appellate Diplication for leave to appeal was made in vision of the Supreme Court in the Second the Appellate Division after the time to Judicial Department (App. Div. 207 make such application had expired.

N. Y. S. 933), entered February 3, 1925, which

reversed an order of Special Term denying Walter S. Hilborn, of New York City, for a motion for an order canceling and disthe motion.

charging of record a mortgage upon real Abraham H. Sarasohn, of New York City, property and dispensing with the production opposed.

of the original mortgage and granted said

motion. PER CURIAM. Motion denied, with $10 costs.

Abraham Feinstein and Louis J. M, Druss, both of Brooklyn, for appellants.

Jacob R. Schiff and Samuel W. Dorfman,

both of New York City, for respondent. 2 PEOPLE of the State of New York ex rel.

PER CURIAM. Order affirmed, with costs. JAMES BUTLER, Inc., Appellant, v. Walter W. LAW, Jr., et al., Constituting the State HISCOCK, C. J., and CARDOZO, Mc Tax Commission of the State of New York, LAUGHLIN, ANDREWS and LEHMAN, JJ., Respondents. (Court of Appeals of New York. May 15,

{ CRANE, J., dissents. 1925.)

POUND, J., absent. Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (210 App. Div. 804, 205 N. Y. S. 945), entered Septem

4 ber 2, 1924, which unanimously confirmed on certiorari a determination of the State Tax In the matter of the Accounting of William

CONLIN, as Committee of the Estate of Commission assessing a franchise tax against

James Conlin, Incompetent Person. the relator for the year beginning November

UNITED STATES FIDELITY & GUARAN1, 1919. The question was whether relator

TY COMPANY, Appellant; John F. Kavanbad the right to deduct from its net income agh, Special Guardian, Respondent. 95 per cent. thereof, because of an agreement on its part to pay such percentage to a for (Court of Appeals of New York. May 15, eign corporation owning 90 per cent. of its

1925.) capital stock.

Appeal, by permission, from an order of Herbert C. Smyth, William M. Butler, and the Appellate Division of the Supreme Court John H. Rogan, all of New York City, for in the Second Judicial Department (App. appellant.

Div. 207 N. Y. S. 823), entered January Albert Ottinger, Atty. Gen. (C. T. Dawes 26, 1925, which unanimously affirmed an orand Wendell P. Brown, Deputy Attys. Gen., der of Special Term surcharging the account of counsel), for respondents.

of the committee of tủe estate of James Con

lin, an incompetent person, and, said comPER CURIAM.

Order affirmed, with mittee having died, leaving no estate, direct. costs.

ing that the deficiency together with the ex

concur.

an

penses of the accounting be collected from HISCOCK, C. J., and CARDOZO, Mcthe surety on his bond.

LAUGHLIN, CRANE, ANDREWS, and LEH. William J. McArthur, Sunshine Ulman, and MAN, JJ., concur. Edmund J. Donegan, all of New York City,

POUND, J., absent. for appellant.

John F. Kavanagh, of New York City, for respondent.

2

In the Matter of the Application of the COUNPER CURIAM. Order affirmed, with costs.

TY OF ULSTER, Appellant, v. STATE DE.

PARTMENT OF PUBLIC WORKS et al., HISCOCK, C. J., and CARDOZO, Mc Respondents. LAUGHLIN, CRANE, ANDREWS, and

(Court of Appeals of New York. May 15, LEHMAN, JJ., concur.

1925.) POUND, J., absent.

Appeal from an order of the Appellate Di. vision of the Supreme Court in the Third Judicial Department (211 App. Div. 629, 207 N. Y. S. 520), entered January 17, 1925, which reversed an order of Special Term granting

a motion for a peremptory order of mandaIn the matter of Mabel L. BROWN, an Incom- mus to compel the department of public

petent Person. Richard L. Brown et al., Ap. works, the bureau of highways of the depellants; Mechanics & Metals National Bank partment of public works, Frederick Stuart of the City of New York, as Committee of Greene, the superintendent of the department the Person and Property of Mabel L. Brown, of public works, and Arthur W. Brandt, the an Incompetent Person, Respondent.

commissioner of highways, to approve of the

action taken by the board of supervisors of (Court of Appeals of New York. May 15, 1925.)

Ulster county on the 28th day of April, 1924,

designating for improvement and construcAppeal, by permission, from an order of tion certain highways within the county of the Appellate Division of the Supreme Court Ulster under the provisions of section 320-a in the Second Judicial Department (212 App. of the Highway Law (amended by Laws 1917, Div. 677, 209 N. Y. S. 288), entered April 9, c. 231, Laws 1920, c. 871, and Laws 1923, c. 1925, which unanimously affirmed an order 426, & 7), and to approve of the determinaof Special Terin electing on behalf of Ma- tion agreement executed by the chairman and bel L. Brown, an incompetent person, to take clerk of the board of supervisors of Ulster her interest under the provisions made for county, pursuant to the direction of the her in the last will and testament of her board of supervisors, by resolution adopted late husband, Herbert W. Brown, deceased, April 29, 1924, and to indicate the approvand to renounce her dower interest in any al of the commissioner of highways upon and all real property which was of the late such agreement. Herbert W. Brown, or in which he had an in John W. Eckert, of Kingston, for appel. terest, as of the date of his death.

lant. Raymond E. Aldrich, of Poughkeepsie, and

Albert Ottinger, Atty. Gen. (John H. Mach. George Wright Hinckley, of New York City, an, of Waverly, and Charles E. McManus, of for appellants.

Corning, of counsel), for respondents. Herbert Barry and Henry W. Proffitt, both of New York City, and John R. Schwartz, of

PER CURIAM. Order affirmed, with costs. Poughkeepsie, for respondent.

HISCOCK, A. J., and CARDOZO, Me

LAUGHLIN, CRANE, ANDREWS, and LEHPER CURIAM. Order affirmed, with costs, MAN, JJ., concur. on opinion of Young, J., below.

POUND, J., absent.

(148 N.E.)

warrant of attachment, and that in case of

her failure so to do plaintiff recover from WHITE, GRATWICK & MITCHELL, Inc., the defendants Genevieve M. Lewis and RoyRespondent, v. EMPIRE ENGINEERING

al Indemnity Company, jointly and severalCOMPANY, Inc., Appellant.

ly, the value of the aforesaid property so (Court of Appeals of New York. May 15,

claimed by the defendant Genevieve M. Lew1925.)

is, with interest from the date of the under

taking. The Appellate Division held that a Appeal by permission, from a judgment of defense that the sheriff without any authorthe Appellate Division of the Supreme Court ity required a bond, although he failed to in the Fourth Judicial Department (211 App. secure a bond from the attaching creditor as Div. 834, 206 N. Y. S. 973), entered Decem- required by the Civil Practice Act, and that ber 8, 1924, unanimously affirming a judg- the claimant was entitled to her property ment in favor of plaintiff entered upon the under the circumstances without filing a report of a referee. The judgment restrained bond, was good if sustained by proof. The and enjoined the defendant from obstructing, following question was certified: filling in and constructing piers upon lands under water between the shore and the "Was plaintiff's motion properly denied as United States harbor line in Niagara river matter of law?" in front of defendant's property. The ques Jonah J. Goldstein and Aiken A, Pope, tion was whether the defendant as the abut- both of New York City, for appellants. ting and adjacent owner of the property

Barnett Cohen and Frank J. O'Neill, both fronting on the Niagara river and of the of New York City, for respondent. lands under water in front of its premises may by the construction of piers over such

PER QURIAM. Order affirmed, with lands extending into the river, impair the costs; question certified answered in the afmeans of access to the plaintiff's property, firmative. abutting on said river, by impairing navigation to it, and destroy its value for dock

HISCOCK, O. J., and CARDOZO, Mcpurposes.

LAUGHLIN, CRANE, ANDREWS, and LEH. S. Pay Carr and Helen Z. M. Rodgers, / MAN, JJ., concur. both of Buffalo, for appellant.

POUND, J., absent. David S. Jackson and John B. Richards, both of Buffalo, for respondent.

PER CURIAM. Judgment affirmed, with costs.

3 in the matter of the Claim of Benjamin LORCHITSKY, Respondent, v. GOTHAM FOLD. ING BOX COMPANY et al., Appellants. State Industrial Commission, Respondent.

HISCOCK, O. J., and CARDOZO, MC-
LAUGHLIN, CRANE, ANDREWS, and LEH-
MAN, JJ., concur.
POUND, J., absent.

(Court of Appeals of New York. May 15,

1925.)

PER CURIAM. Motion to amend remit

titur denied, without costs. See 230 N. Y. 8, 2

128 N. E. 899. BLUE RIDGE COAL CORPORATION et al., Appellants, V. Genevieve M. LEWIS, Defendant, and Royal Indemnity Company, Re

4

(240 N. Y. 650) spondent.

NILES V, SEELER. (Court of Appeals of New York. May 15,

(Court of Appeals of New York. June 2, 1925.)

1925.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court Judgment em 181-Disposing of issue of con.

sideration for note by summary judgment in the First Judicial Department (210 App. held erroneous. Div. 275, 205 N. Y. S. 452), entered July 2, Where defendant's answer and affidavits on 1924, which reversed an order of Special motion for summary judgment presented issue Term granting a motion for summary judg- whether there was consideration for note inment and denied said motion. The complaint volved, there was substantial issue, which dedemanded that the defendant Genevieve M. fendant was entitled to have tried in ordinary Lewis establish that she was the owner of manner, and which should not have been disproperty at the time of its seizure under a / posed of by summary judgment.

Appeal from Supreme Court, Appellate Di-, petitioner an award made in street opening vision, First Department.

proceedings. The question was whether unAction by Isabelle M. Niles against Fred-paid taxes for the years 1891 to 1897, both erick Seeler. From a judgment of the Ap inclusive, were' valid and enforceable liens on pellate Division (209 App. Div. 867, 205 N. Y. the property in question, notwithstanding the S. 940), affirming a judgment of the Special transfer and the foreclosure of a tax lien Term, striking defendant's answer and grant- for unpaid taxes on the same property for the ing plaintiff's motion for summary judgment, years 1899 to 1910, both inclusive, through defendant appeals. Judgments reversed.

which claimant derived her title. See, also, 181 N. Y. S. 20.

George P. Nicholson, Corp. Counsel, of New Milton R. Weinberger and William Klein, York City (Joel J. Squier, of New York City, both of New York City, for appellant.

Joseph G. Mathews, of Long Island City, and Joseph Walker Magrauth, and Arthur F. Charles E. Clarke, of New York City, of Driscoll, both of New York City, for respond-counsel), for appellants. ent.

Hyman Rubin, of Brooklyn, Arthur P. Hil.

ton, of Jamaica, and Clarence C. Ferris, of PER CURIAM. The defendants answer New York City, for respondent. and his affidavits produced upon the motion for summary judgment clearly present the

PER CURIAM. Order affirmed, with costs, issue whether there was any consideration on opinion of Young, J., below. for the note involved in this action.

Of course, this was a substantial issue, which HISCOCK, C. J., and CARDOZO, Medefendant was entitled to have tried in the LAUGHLIN, CRANE, ANDREWS, and LEH. ordinary manner, and which should not have MAN, JJ., concur. been disposed of by a summary judgment.

POUND, J., absent. Gravenhorst v. Zimmerman, 236 N. Y. 22, 38, 39, 139 N. E. 766, 27 A. L. R. 1465; General Investment Co. v. Interborough Rapid Transit Co., 235 N. Y. 133, 139 N. E. 216.

2 The judgments should be reversed, with Anthony NIESEN, Appellant, v. Charles GAcosts in all courts, and the motion for sum

LEWSKI, Respondent. mary judgment denied, with costs.

(Court of Appeals of New York. June 2, HISCOCK, C. J., and CARDOZO, Mc.

1925.) LAUGHLIN, CRANE, ANDREWS, and

Appeal from a judgment, entered DecemLEHMAN, JJ., concur.

ber 19, 1924, upon an order of the Appellate POUND, J., absent.

Division of the Supreme Court in the Second

Judicial Department (211 App. Div. 858, 207 Judgments reversed, etc.

N. Y. S. 885), reversing a judgment in favor of plaintiff entered upon a verdict and direct. ing a dismissal of the complaint. The action was brought by a broker against a prospec

tive purchaser of real estate to recover comI

missions which the broker would have reIn the matter of the Application of Esther H. ceived from the owner had the customer pur

SALZBERG, Respondent, for Payment of an chased the premises and executed a formal Award Made in the matter of Acquiring Title contract of purchase and acquired title in acto COOPER AVENUE AND CENTRAL

cordance therewith. AVENUE IN the BOROUGH OF QUEENS, CITY OF NEW YORK, Comptroller of the Francis X. Carmody, Joseph H. Kutner, City of New York et al., Appellants; Title and Kenneth C. Newman, all of New York Guarantee & Trust Company, Respondent, City, for appellant. (Court of Appeals of New York. June 2,

Jacob Landy and Joseph E. Greenberg, 1925.)

both of New York City, for respondent. Appeal, by permission, from an order of PER CURIAM. Judgment affirmed, with the Appellate Division of the Supreme Court costs. in the Second Judicial Department (212 App. Div. 44, 206 N. Y. S. 837), entered Decem HISCOCK, C. J., and CARDOZO, Mc. ber 5, 1924, which unanimously affirmed an LAUGHLIN, CRANE, ANDREWS, and LEH. order of Special Term directing the comptrol- | MAN, JJ., concur. ler of the city of New York to pay to the POUND, J., absent.

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