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failed to state a cause of action. The com recover upon a quantum meruit for the claimplaint demanded specific performance of the ed breach of a construction contract. About following provision in a deed theretofore ex a year later the receiver brought a counter ecuted by defendants Hawkins to the plain-action against the contractor and the sure tiff :

ties on its performance bond, claiming dam"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 tractor and against the sureties. These two of land from said first parties, their heirs and actions were consolidated by an order enterassigns for the sum of five hundred ($500.00) ed on the eve of a trial of the contractor's dollars and such sale of said 5-foot strip shall suit. extinguish said easement on the part said

See also 239 N. Y. 508, 147 N. E. 173. first parties, their heirs, executors and assigns.”

John W. Hogan, of Syracuse, Paul BonThe strip therein referred to in connection ynge, of New York City, and William H. with an adjoining strip of the land conveyed Harding, of Syracuse, for appellants. to plaintiffs was used as a common driveway D. A. Marsh, George D. Yeomans, and by the parties and as a way to property in Trabue Carswell, all of Brooklyn, for rethe rear owned by the said Hawkins. Sub- spondents. sequently they conveyed said rear property

PER QURIAM. to defendant Seeley together with the said

Judgment affirmed, with

costs. right of way thereto and plaintiffs by this action seek to exercise their option and termi HISCOCK, C. J., and CARDOZO, POUND, nate said right of way.

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 respond

2 ent Seeley.

Julian P. FAIRCHILD et al., as Receivers of

Atlantic Dock Company, Appellants, v. UNPER CURIAM. Judgment affirmed, with

TON FERRY COMPANY OF NEW YORK

& BROOKLYN, Respondent. costs.

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

1925.) MCLAUGHLIN, CRANE, ANDREWS, and LEHMAN, JJ., concur.

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 en

tered upon a dismissal of the complaint by CRENSHAW ENGINEERING & CON

the court at a Trial Term without a jury. STRUCTION CO., Inc., Appellant, v. NEW YORK MUNICIPAL RAILWAY CORPO

The action was brought to enjoin the defendRATION, Respondent. Lindley M. Garrison, ant from maintaining a ferry rack, ferry as Receiver of New York Municipal Railway bridges, and other ferry structures alongside Corporation, Respondent; Ætna Casualty & and in front of a bulkhead and pier owned Surety Company et al., Appellants, Impleaded by the plaintiffs at and near the foot of Hamwith Another.

ilton avenue in the borough of Brooklyn and (Court of Appeals of New York. June 2,

for the recovery of damages for maintenance 1925.)

of the structures complained of from 1916

to commencement of the action. Plaintiffs' Appeal from a judgment of the Appellate claim was based upon the contention that the Division of the Supreme Court in the Sec- defendant had no right to maintain its rack ond Judicial Department (209 App. Div. 893, ) in such close proximity to the side of the 205 N. Y. S. 919), entered June 27, 1924, dock company's pier as to prevent the latter which affirmed a judgment in favor of de- from using that side of the pier for the moorfendant receiver against the plaintiff enter- | ing of vessels or for any commercial purpose. ed upon a verdict directed by the court, and

Francis L. Durk, of Brooklyn, for appelreversed a judgment in favor of defendants,

lants. appellants, dismissing said receiver's coun

George P. Hotaling, of New York City, for terclaim against them, and directed judgment

respondent. against them on said counterclaims. Initially the plaintiff, a contractor, sued the rail PER CURIAM. Judgment affirmed, with way corporation and the receiver thereof to costs.

(148 N.E.)
HISCOCK, O. 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.

which struck plaintiff and caused the in-
juries complained of was in the employ at
the time of the accident of the defendant vil-

lage for which the owner of the truck and 1

employer of the driver was doing construc-
Arnold A. KLINE et al., Appellants, v. MYRI- tion work pursuant to a contract.
AD PICTURES CORPORATION et al.,
Respondents.

John Bright and Abram F, Servin, both of

Middletown, for appellant. (Court of Appeals of New York. June 2,

Leslie E. Hicks, of Port Jervis, and Ar1925.)

thur C. Kyle, of Monticello, for respondent. Appeal from a judgment, entered February 26, 1925, upon an order of the Appellate

PER CURIAM. Judgment affirmed, with

costs.
Division of the Supreme Court in the First
Judicial Department (211 App. Div. 550, 207
N. Y. S. 109), reversing an order of Special

HISCOCK, C. J., and CARDOZO, POUND,
Term denying a motion to strike out plain- MCLAUGHLIN, ORANE, ANDREWS, and
tiffs' reply and for judgment in favor of de LEHMAN, JJ., concur.
fendants and granting said motion. The ac
tion was for alleged fraud by which plain-
tiffs were induced to execute a release of the

3 obligation of certain promissory notes. The answer set up as a defense that simultane- Simon DONIGER, Appellant, v. ST, MARK'S

HOLDING CORPORATION et al., Reously with the commencement of this action

spondents. plaintiffs had commenced another action to recover on the notes. The question was (Court of Appeals of New York, June 2, whether this action was barred under the

1925.) doctrine of election of remedies.

Appeal, by permission, from a judgment of Jay Leo Rothschild and Louis Rivkin, both the Appellate Division of the Supreme Court of New York City, for appellants.

in the Second Judicial Department (211 App. Leopold Blumberg, of New York City, for ) Div. 808, 206 N. Y. S. 900), entered November respondents.

28, 1924, unanimously affirming a judgment

in favor of defendants entered upon a disPER CURIAM. Judgment affirmed, with missal of the complaint by the court on trial costs.

at Special Term. The action was for an in.

junction to restrain the respondents from HISCOCK, C. J., and CARDOZO, POUND, leasing or subletting the whole or any part MCLAUGHLIN, CRANE, ANDREWS, and of the block front from Union street to EastLEHMAN, JJ., concur.

ern 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 2

drugs in any form whatsoever and for the Herbert ROBINSON, an Infant, by Winfield purchase, sale or distribution of ice cream in Robinson, His Guardian ad Litem, Respond connection with the said drug store, until ent, v. PRESIDENT AND TRUSTEES OF February 15, 1932, in violation of an alleged THE VILLAGE OF MONTICELLO, Appel

covenant contained in a lease. lant, Impleaded with Another.

Theodore B. Chancellor and A. Loeb Sal(Court of Appeals of New York. June 2,

kin, both of New York City, for appellant. 1925.)

Arthur Hutter, of New York City, for reAppeal, by permission, from a judgment of spondents. the Appellate Division of the Supreme Court in the Third Judicial Department (209 App.

PER CURIAM. Judgment affirmed, with Div. 841, 204 N. Y. S. 943), entered May 20, costs, 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.

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James A. Gray and William S. Butler, botb 1

of Brooklyn, for respondent. John PALMIERI, Appellant, v. Clara KATZENBERG, Respondent.

PER CURIAM. Judgment affirmed, with

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

HISCOCK, O. J., and CARDOZO, POUND, Appeal from a judgment, entered Decem- MCLAUGHLIN, CRANE, ANDREWS, and ber 6, 1924, upon an order of the Appellate | LEHMAN, JJ., concur. Division of the Supreme Court in the Second Judicial Department (209 App. Div. 889, 205 N. Y. S. 912) reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term and directing

3 judgment in favor of defendant. The action SHIPLEY-HOLLINS CO., Ino., Respondent, v. was to recover moneys paid on account of

Philip MILLER et al., Doing Business under the purchase price of real property. The de

the Firm Name of Gold Brand Waist Comfendant counterclaimed for specific perform

pany, Appellants. ance of the contract to purchase. Plaintiff (Court of Appeals of New York. June 2, 1925.) contended that a certain judgment recovered against defendant's predecessor in title a

Appeal from a judgment of the Appellate year after it conveyed its title to the prem- Division of the Supreme Court in the First ises was nevertheless a lien upon the prop- Judicial Department (211 App. Div. 846, 207 erty rendering the title unmarketable. N. Y. S. 919), entered December 18, 1924,

modifying, and affirming as modified, a judg. John Palmieri, Abraham Wilkes, and Charles F. Paterno, all of New York City, dict. The action was to recover for refusal

ment in favor of plaintiff entered upon a verfor appellant. Louis Kunen and Oscar Englander, both chased by defendants from the plaintiff. It

to accept goods alleged to have been purof New York City, for respondent.

was alleged that on January 29, 1920, the dePER CURIAM. Judgment affirmed, with fendants gave plaintiff a written order for 220 costs.

pieces of cotton goods at a minimum price of

75 cents a yard, delivery to be made about the HISCOCK, O. J., and CARDOZO, POUND, following November or December. During MCLAUGHLIN, CRANE, ANDREWS, and the spring and summer of 1920 the cotton LEHMAN, JJ., concur.

market collapsed, so that in November and December these goods had fallen to 18 cents

per yard, and the defendants refused to ac2

cept delivery. Michael KILGALLON, Res dent, V. CUN Eugene L. Bondy and F. Sidney Williams, ARD STEAMSHIP COMPANY, Limited, both of New York City, for appellants. Appellant.

Alfred L. Marilley, of New York City, for

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

PER CURIAM. Judgment affirmed, with Appeal from a judgment of the Appellate costs. Division of the Supreme Court in the Second Judicial Department (212 App. Div. 825, 207

HISCOCK, C. J., and CARDOZO, POUND, N. Y. S. 860), entered January 13, 1925, unan- MCLAUGHLIN, CRANE, ANDREWS, and' imously affirming a judgment in favor of LEHMAN, JJ., concur. plaintiff entered upon a verdict in in 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

4 the hold of one of defendant's steamers was

PEOPLE of the State of New York, Respond. struck by a falling skid or fender which had

ent, v. John RUSSO, Appellant. been hung to protect the woodwork around the hatch about twenty-three feet above the (Court of Appeals of New York. June 2, 1925.) hold.

PER CURIAM, Motion for reargument deThaddeus 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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(148 N.E.)

tiff entered upon a verdict and directing a

dismissal of the complaint. The action was Charles M. CAMP, as Executor of Ellen P. Kel. to recover for the destruction of property uplogg, Deceased, Appellant, v. Alfred G. on plaintiff's land by fire alleged to have been REEVES et al., Individually and as Copart. communicated to such property from one ners under the Firm Name of Reeves, Todd negligently started by defendant's employees. & Swain et al., Respondents, Impleaded with It appeared that between the plaintiff's lot Others. Ethel T. KELLOGG, as Executrix and the point where it is claimed the fire was of John P. Kellogg, Deceased, Appellant, v. Alfred G. REEVES et al., individually and started there intervened several other lots as Copartners under the Firm Name of owned by different people and a street. The Reeves, Todd & Swain et al., Respondents, Appellate Division held that defendant was Impleaded with others. Alva E. BELMONT, not liable for the injury to plaintiff's propAppellant, v. Alfred G. REEVES et al., In. erty, the origin of the fire being too remote. dividually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Re

Mark Goldberg and Louis Kunen, both of spondents, Impleaded with Others,

New York City, for appellant.

George L. Hubbell, Jr., and Daniel S. Mur(Court of Appeals of New York, June 9, 1925.)

phy, both of New York City, for respondent. Appeal, in each of the above-entitled actions, from a judgment entered June 12, 1924,

PER CURIAM. Judgment affirmed, with upon an order of the Appellate Division of costs, on opinion of Merrell, J., below. the Supreme Court in the First Judicial Department (209 App. Div. 488, 205 N. Y. S. 259;

HISCOCK, C, J., and POUND, MCLAUGH209 App. Div. 496, 205 N. Y. S. 265; 209 App: LIN, and ANDREWS, JJ., concur Div. 497, 205 N. Y. S. 266), which reversed

CARDOZO, CRANE, and LEHMAN, JJ.,

dissent,
an order of Special Term denying a motion of
defendants, respondents, for a dismissal of
the complaint as to them and granted said
motion. The actions were brought to recover

3
for failure of defendants, respondents, attor- Charles E. OLSON, Respondent, v METAL
neys at law, to inform plaintiffs, who, in vari PACKAGE CORPORATION OF NEW
ous capacities, were their clients, as to the

YORK, Appellant. theft, dishonesty, and criminality of a part- (Court of Appeals of New York, June 9, 1925.). ner, whereby the plaintiffs suffered loss. The Appellate Division held that the actions were Appeal from a judgment of the Appellate barred by the statute of limitations.

Division of the Supreme Court in the First Vincent H. Rothwell, George Gordon Bat- Judicial Department (211 App. Div. 848, 207 tle, Harold Harper and Albert C. Rothwell, N. Y S. 887), entered January 13, 1925, modiall of New York City, for appellants.

fying, and affirming as modified, a judgment Frederick Collin, of New York City, for re- in favor of plaintiff entered upon a verdict in spondents.

an action to recover for personal injuries al

leged to have been sustained by plaintiff PER CURIAM. Judgment in each case af- through the negligence of defendant. Plainfirmed, with costs.

tiff, a motorman on a trolley car, received

the injuries complained of as the result of a HISCOCK, C. J., and POUND, MCLAUGH- collision between his car and a motor truck

belonging to defendant. The trolley car was LIN, CRANE, ANDREWS, and LEHMAN, JJ., concur.

proceeding easterly on Tremont avenue, borCARDOZO, J., not voting.

ough of the Bronx, and had come to a stop at Mapes avenue. The defendant's truck was also east-bound and while the trolley car was at or immediately near Mapes avenue,

passed on the left and then endeavored to 2 Thomas E. MOORE, Appellant, v. VAN BEUR. turn to the southeast to get upon the track EN & NEW YORK BILL POSTING COM

ahead of the trolley car, and crashed into the PANY, Respondent,

left side of the front vestibule. (Court of Appeals of New York. June 9, 1925.) stone, both of New York City, for appellant.

Charles H. Tuttle and William B. Roul. Appeal from a judgment, entered May 22, Thomas J O'Neill and Leonard F. Fish, 1924, upon an order of the Appellate Division both of New York City, for respondent. of the Supreme Court in the First Judicial Department (208 App. Div. 352, 203 N. Y. S.

CURIAM. Judgment affirmed, with 305), reversing a judgment in favor of plain-costs.

148 N.E.-48

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HISCOCK, C. J., and CARDOZO, POUND, , truck looked both ways when he was about MCLAUGHLIN, CRANE, ANDREWS, and 14 feet from the track, that he was driving LEHMAN, JJ., concur.

about 5 miles an hour, that no crossing signal was sounded, and that there was no flagman at the crossing, though a city ordinance re

quired that one should be kept there. Charles H. TUTTLE, Respondent, v. HOME

J. E. Kelly, of Buffalo, for appellant. INSURANCE COMPANY, Appellant.

Julius A. Schreiber and Hamilton Ward,

both of Buffalo, for respondent. (Court of Appeals of New York, June 9, 1925.) Appeal from a judgment of the Appellate

PER CURIAM. Judgment affirmed, with

costs. Division of the Supreme Court in the First Judicial Department (-- App. Div. 208

CARDOZO, POUND, CRANE, and LEHN. Y. S. 948), entered March 31, 1925, affirm

MAN, JJ., concur. ing a judgment in favor of plaintiff entered

HISCOCK, C. J., and MCLAUGHLIN and upon a verdict directed by the court. The

ANDREWS, JJ., dissent. action was to recover upon a policy of fire insurance insuring furniture of the assured "while contained in the said dwelling house and additions.” The furniture destroyed was

3 contained in a building separate from the

Julia A. WALSH, Respondent, v. Guy B. dwelling house though physically connected

DICKISON, Appellant. therewith.

(Court of Appeals of New York, June 9, 1925.) Frank Sowers, of New York City, for appellant.

Appeal from a judgment of the Appellate Charles H. Tuttle and Martin A. Schenck, Division of the Supreme Court in the Fourth both of New York City, for respondent. Judicial Department (-- App. Div. - 207

N. Y. S. 935). entered January 26, 1925, afPER CURIAM. Judgment affirmed, with firming a judgment in favor of plaintiff encosts.

tered upon a verdict in an action to recover

for personal injuries alleged to have been susHISCOCK, C. J., and CARDOZO, POUND, tained by plaintiff through the negligence of MCLAUGHLIN, CRANE, ANDREWS, and defendant, who, at the time of the accident LEHMAN, JJ., concur.

was paving Oswego street in the city of Syracuse. The paving on one side of the street was completed. Beyond that a trench eighteen or twenty inches deep and the width of a car

track had been excavated preliminary to pav2 W. H. DILL COMPANY, Inc., Respondent, v. street at a regular crosswalk stepped down

ing. Plaintiff in attempting to cross the NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

into this trench, crossed it and seeing a stone

against the further side stepped on it to re(Court of Appeals of New York. June 9, 1925.) gain the pavement, the stone gave way

Appeal, by permission, from a judgment of and she fell, sustaining the injuries comthe Appellate Division of the Supreme Court

plained of. in the Fourth Judicial Department (207 App.

Frederick T. Pierson, of Syracuse, for ap. Div 837. 201 N. Y. S. 957), entered October pellant. 10. 1923, unanimously affirming a judgment Walter J Welch, of Syracuse, for respondin favor of plaintiff entered upon a verdict in ent. an action to recover damages to an automobile truck which was struck by a locomotive PER CURIAM. Judgments reversed, and of the defendant company in the city of Buf- new trial granted, costs to abide the event, falo, at the point where Bird avenue crosses on the ground that the evidence does not esthe railroad tracks of the defendant. It ap- tablish negligence on the part of defendant. peared that at a point approximately 130 feet from the crossing the track curves so as to HISCOCK, C. J., and CARDOZO, POUND, shut off the view of an approaching train. MCLAUGHLIN, CRANE, ANDREWS, and There was evidence that the driver of the LEHMAN, JJ., concur.

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