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Anson Burlingame Cole and George R. Holahan, Jr., both of Brooklyn, for appellant.

Siegfried F. Hartman, of New York City, for respondents.

by the court, and directing a dismissal of the complaint. The action was to recover for an alleged forcible entry and detainer. The evidence showed that during all of the period defendant was in possession he paid the rent,

PER CURIAM. Judgment affirmed, with and there was no evidence to show that the costs.

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Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (210 App. Div. 323, 206 N. Y. S. 87), entered October 1, 1924, sustaining defendant's exceptions, ordered to be heard in the first instance by the Appellate Division, and granting a motion for a new trial in an action to recover from defendant a penalty under the provisions of section 182 of the Conservation Law (See McKinney's Consol. Laws and Supp.) for having fish nets in his possession within 300 feet of inland

waters.

use of the premises was worth more than the rent reserved.

James Farrell, of Troy, for appellant.

P. C. Dugan, of Albany, and Abbott H. Jones, of Troy, for respondent.

PER CURIAM. Judgment affirmed, with costs, on the ground that, independent of any other question, there was no proof of damages.

HISCOCK, C. J., and CARDOZO, Mc-
LAUGHLIN, CRANE, ANDREWS,
and
LEHMAN, JJ., concur.
POUND, J., absent.

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PEOPLE of the State of New York, Respond-
ent, v. Joseph HAGEN, Appellant.
(Court of Appeals of New York. June 2,
1925.) -

Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (— App. Div. -, 208 N. Y. S. 915), entered February 26, 1925, Albert Ottinger, Atty. Gen. (John O. Bates, which affirmed a judgment of the Kings Counof Albany, of counsel), for appellant. ty Court rendered upon a verdict convicting George D. Forsyth, of Rochester, for re- defendant of the crime of murder in the spondent.

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second degree.

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(148 N.E.)

and

of the Supreme Court in the First Judicial [ HISCOCK, C. J., and CARDOZO, McDepartment (210 App. Div. 41, 205 N. Y. S. LAUGHLIN, CRANE, ANDREWS, 170), reversing a judgment in favor of plain- LEHMAN, JJ., concur. tiff entered upon the report of a referee and POUND, J., absent. directing a dismissal of the complaint. The action was to compel specific performance by the defendant trustees of an alleged oral agreement to renew a lease of certain property occupied by the plaintiff as a factory at Nos. 433-437 East Twenty-Second street and Nos. 430-436 East Twenty-Third street, in the city of New York, for a term of five years commencing May 1, 1921.

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Arthur L. WASHBURNE et al., Copartners under the Firm Name of Washburne Engineering Company, Respondents, v. PROPERTY OWNERS' CO-OPERATIVE ASSOCIATION OF MIDDLESEX COUNTY, Inc., Appellant.

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

Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (209 App. Div. 365, 205 N. Y. S. 36), entered October 16, 1924, modify

ing, and affirming as modified, a judgment in favor of plaintiffs entered upon the report of a referee. The action was to recover damages for alleged breach of a written contract under which plaintiffs agreed with defend ant corporation to lay out and grade certain streets and parts of streets on a tract of land owned by defendant. The complaint alleged that defendant had prevented performance of the contract by plaintiffs. The answer set up as a defense and counterclaim that the plaintiffs had failed to do the work in accordance with the contract and that they at no time intended to complete the contract. Maurice Rose, of New York City, for appellant.

Frank R. Greene, of New York City, for respondents.

PER CURIAM. Judgment affirmed, with costs.

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

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (212 App. Div. 822, 207 N. Y. S. 810), entered January 16, 1925, unanimously 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 defendants. Plaintiff was injured by an explosion which occurred when he lowered a lighted lantern into a well, and sought to recover damages from defendants on the ground that the explosion was caused by gasoline which had percolated Bartholomew J. HOPKINS et al., Appellants, through the ground from a leaky gasoline pump owned by defendant Standard Oil Company of New York and installed by defendant Oram.

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v. Hattie M. HAWKINS et al.,
Respondents.

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

John C. R. Taylor, of Middletown, for appellant Standard Oil Company of New York. Appeal, by permission, from a judgment of Percy V. D. Gott, of Goshen, for appellant the Appellate Division of the Supreme Court Oram. in the Fourth Judicial Department (211 App. Elbert N. Oakes, of Middletown, for re- Div. 833, 206 N. Y. S. 917), entered December spondent.

5, 1924, unanimously affirming a judgment in favor of defendants, entered upon an order PER CURIAM. Judgment affirmed, with of Special Term granting a motion to discosts. miss the complaint on the ground that it

failed to state a cause of action. The complaint demanded specific performance of the following provision in a deed theretofore executed by defendants Hawkins to the plaintiff:

recover upon a quantum meruit for the claimed breach of a construction contract. About a year later the receiver brought a counter action against the contractor and the sureties on its performance bond, claiming dam

tractor and against the sureties. These two actions were consolidated by an order entered on the eve of a trial of the contractor's suit.

"Said second parties are to have the first priv-ages for breach of contract against the conilege and option of purchasing said 5-foot strip of land from said first parties, their heirs and assigns for the sum of five hundred ($500.00) dollars and such sale of said 5-foot strip shall extinguish said easement on the part of said first parties, their heirs, executors and assigns."

The strip therein referred to in connection with an adjoining strip of the land conveyed to plaintiffs was used as a common driveway by the parties and as a way to property in the rear owned by the said Hawkins. Subsequently they conveyed said rear property to defendant Seeley together with the said right of way thereto and plaintiffs by this action seek to exercise their option and terminate said right of way.

See also 239 N. Y. 508, 147 N. E. 173.
John W. Hogan, of Syracuse, Paul Bon-
ynge, of New York City, and William H.
Harding, of Syracuse, for appellants.

D. A. Marsh, George D. Yeomans, and Trabue Carswell, all of Brooklyn, for respondents.

PER CURIAM. Judgment affirmed, with costs.

HISCOCK, C. J., and CARDOZO, POUND, MCLAUGHLIN, CRANE, ANDREWS, and

Frank Hopkins, of Syracuse, for appel- LEHMAN, JJ., concur. lants.

Joseph M. Meatyard, of Syracuse, for respondents Hawkins and others.

B. B. Aylesworth, of Syracuse, for respondent Seeley.

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CRENSHAW ENGINEERING & CON-
STRUCTION CO., Inc., Appellant, v. NEW
YORK MUNICIPAL RAILWAY CORPO-

RATION, Respondent. Lindley M. Garrison,
as Receiver of New York Municipal Railway
Corporation, Respondent; Ætna Casualty &
Surety Company et al., Appellants, Impleaded
with Another.

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

Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (209 App. Div. 893, 205 N. Y. S. 919), entered June 27, 1924, which affirmed a judgment in favor of defendant receiver against the plaintiff entered upon a verdict directed by the court, and reversed a judgment in favor of defendants, appellants, dismissing said receiver's counterclaim against them, and directed judgment against them on said counterclaims. Initially the plaintiff, a contractor, sued the railway corporation and the receiver thereof to

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Julian P. FAIRCHILD et al., as Receivers of
Atlantic Dock Company, Appellants, v. UN-
ION FERRY COMPANY OF NEW YORK
& BROOKLYN, Respondent.

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

Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (212 App. Div. 823, 207 N. Y. S. 835), entered January 14, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury. The action was brought to enjoin the defendant from maintaining a ferry rack, ferry bridges, and other ferry structures alongside and in front of a bulkhead and pier owned by the plaintiffs at and near the foot of Hamilton avenue in the borough of Brooklyn and for the recovery of damages for maintenance of the structures complained of from 1916 to commencement of the action. Plaintiffs' claim was based upon the contention that the defendant had no right to maintain its rack in such close proximity to the side of the dock company's pier as to prevent the latter from using that side of the pier for the mooring of vessels or for any commercial purpose. Francis L. Durk, of Brooklyn, for appellants.

George P. Hotaling, of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

(148 N.E.)

HISCOCK, C. J., and CARDOZO, POUND,, through the negligence of defendants. The MCLAUGHLIN, CRANE, ANDREWS, and question was whether the driver of a truck LEHMAN, JJ., concur.

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

Appeal from a judgment, entered February 26, 1925, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (211 App. Div. 550, 207 N. Y. S. 109), reversing an order of Special Term denying a motion to strike out plaintiffs' reply and for judgment in favor of defendants and granting said motion. The ac tion was for alleged fraud by which plaintiffs were induced to execute a release of the obligation of certain promissory notes. The answer set up as a defense that simultaneously with the commencement of this action plaintiffs had commenced another action to recover on the notes. The question was whether this action was barred under the doctrine of election of remedies.

Jay Leo Rothschild and Louis Rivkin, both of New York City, for appellants.

Leopold Blumberg, of New York City, for respondents.

which struck plaintiff and caused the injuries complained of was in the employ at the time of the accident of the defendant village for which the owner of the truck and employer of the driver was doing construction work pursuant to a contract.

John Bright and Abram F. Servin, both of Middletown, for appellant.

Leslie E. Hicks, of Port Jervis, and Arthur C. Kyle, of Monticello, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

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Simon DONIGER, Appellant, v. ST. MARK'S HOLDING CORPORATION et al., Respondents.

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

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (211 App. Div. 808, 206 N. Y. S. 900), entered November 28, 1924, unanimously affirming a judgment in favor of defendants entered upon a dis

PER CURIAM. Judgment affirmed, with missal of the complaint by the court on trial costs.

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

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Herbert ROBINSON, an Infant, by Winfield Robinson, His Guardian ad Litem, Respondent, v. PRESIDENT AND TRUSTEES OF THE VILLAGE OF MONTICELLO, Appellant, Impleaded with Another.

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

at Special Term. The action was for an injunction to restrain the respondents from leasing or subletting the whole or any part of the block front from Union street to Eastern parkway on the easterly side of Franklin avenue, in the borough of Brooklyn, for the use and occupancy as a drug store and for the purchase, sale and distribution of drugs in any form whatsoever and for the purchase, sale or distribution of ice cream in connection with the said drug store, until February 15, 1932, in violation of an alleged

covenant contained in a lease.

Theodore B. Chancellor and A. Loeb Salkin, both of New York City, for appellant. Arthur Hutter, of New York City, for respondents.

PER CURIAM. Judgment affirmed, with costs.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (209 App. Div. 841, 204 N. Y. S. 943), entered May 20, 1924, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in HISCOCK, C. J., and CARDOZO, POUND, an action to recover for personal injuries al- MCLAUGHLIN, CRANE, ANDREWS, and leged to have been sustained by plaintiff LEHMAN, JJ., concur.

John PALMIERI, Appellant, v. Clara KATZ

ENBERG, Respondent.

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

Appeal from a judgment, entered December 6, 1924, upon an order of the Appellate Division of the Supreme Court in the Second Judicial Department (209 App. Div. 889, 205 N. Y. S. 942) reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing judgment in favor of defendant. The action was to recover moneys paid on account of the purchase price of real property. The defendant counterclaimed for specific performance of the contract to purchase. Plaintiff contended that a certain judgment recovered against defendant's predecessor in title a year after it conveyed its title to the premises was nevertheless a lien upon the property rendering the title unmarketable.

John Palmieri, Abraham Wilkes, and Charles F. Paterno, all of New York City, for appellant.

Louis Kunen and Oscar Englander, both of New York City, for respondent.

James A. Gray and William S. Butler, both of Brooklyn, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

3

SHIPLEY-HOLLINS CO., Inc., Respondent, v. Philip MILLER et al., Doing Business under the Firm Name of Gold Brand Waist Company, Appellants.

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

Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (211 App. Div. 846, 207 N. Y. S. 919), entered December 18, 1924, modifying, and affirming as modified, a judgment in favor of plaintiff entered upon a verdict. The action was to recover for refusal to accept goods alleged to have been pur

chased by defendants from the plaintiff. It

was alleged that on January 29, 1920, the de

PER CURIAM. Judgment affirmed, with fendants gave plaintiff a written order for 220 costs.

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

2

Michael KILGALLON, Respondent, v. CUNARD STEAMSHIP COMPANY, Limited,

Appellant.

(Court of Appeals of New York. June 2,

1925.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (212 App. Div. 825, 207 N. Y. S. 860), entered January 13, 1925, unanimously 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, his employer. Plaintiff, a longshoreman, while employed in the hold of one of defendant's steamers was struck by a falling skid or fender which had been hung to protect the woodwork around the hatch about twenty-three feet above the

hold.

pieces of cotton goods at a minimum price of 75 cents a yard, delivery to be made about the following November or December. During the spring and summer of 1920 the cotton market collapsed, so that in November and December these goods had fallen to 18 cents per yard, and the defendants refused to accept delivery.

Eugene L. Bondy and F. Sidney Williams, both of New York City, for appellants. Alfred L. Marilley, 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.

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PEOPLE of the State of New York, Respondent, v. John RUSSO, Appellant. (Court of Appeals of New York. June 2, 1925.) PER CURIAM. Motion for reargument de

Thaddeus G. Cowell, of New York City, for nied. See 239 N. Y. 548, 147 N. E. 190; 239. appellant. N. Y. 604, 147 N. E. 214.

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