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(148 N.E.)

Charles M. CAMP, as Executor of Ellen P. Kellogg, Deceased, Appellant, v. Alfred G. REEVES et al., Individually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Respondents, Impleaded with Others. Ethel T. KELLOGG, as Executrix of John P. Kellogg, Deceased, Appellant, v. Alfred G. REEVES et al., Individually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Respondents, Impleaded with Others. Alva E. BELMONT, Appellant, v. Alfred G. REEVES et al., Individually and as Copartners under the Firm Name of Reeves, Todd & Swain et al., Respondents, Impleaded with Others.

(Court of Appeals of New York. June 9, 1925.)

Appeal, in each of the above-entitled actions, from a judgment entered June 12, 1924, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (209 App. Div. 488, 205 N. Y. S. 259; 209 App. Div. 496. 205 N. Y. S. 265; 209 App. Div. 497, 205 N. Y. S. 266), which reversed 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 for failure of defendants, respondents, attorneys at law, to inform plaintiffs, who, in various capacities, were their clients, as to the theft, dishonesty, and criminality of a partner, whereby the plaintiffs suffered loss. The Appellate Division held that the actions were barred by the statute of limitations.

tiff entered upon a verdict and directing a dismissal of the complaint. The action was to recover for the destruction of property upon plaintiff's land by fire alleged to have been communicated to such property from one negligently started by defendant's employees. It appeared that between the plaintiff's lot and the point where it is claimed the fire was started there intervened several other lots owned by different people and a street. The Appellate Division held that defendant was not liable for the injury to plaintiff's property, the origin of the fire being too remote. Mark Goldberg and Louis Kunen, both of New York City, for appellant.

George L. Hubbell, Jr., and Daniel S. Murphy, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs, on opinion of Merrell, J., below.

HISCOCK, C. J., and POUND, McLAUGH

LIN, and ANDREWS, JJ., concur CARDOZO, CRANE, and LEHMAN, JJ., dissent.

3

Charles E. OLSON, Respondent, v METAL PACKAGE CORPORATION OF NEW YORK, Appellant.

(Court of Appeals of New York. June 9, 1925.)

Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (211 App. Div. 848, 207 N. Y S. 887), entered January 13, 1925, modifying, and affirming as modified, a judgment

Vincent H. Rothwell, George Gordon Battle, Harold Harper and Albert C. Rothwell, all of New York City, for appellants. 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 alleged to have been sustained by plaintiff

PER CURIAM. Judgment in each case af- through the negligence of defendant. Plainfirmed, with costs.

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

CARDOZO, J., not voting.

2

Thomas E. MOORE, Appellant, v. VAN BEUREN & NEW YORK BILL POSTING COMPANY, Respondent.

tiff, a motorman on a trolley car, received the injuries complained of as the result of a Collision between his car and a motor truck belonging to defendant. The trolley car was proceeding easterly on Tremont avenue, borough 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 turn to the southeast to get upon the track ahead of the trolley car, and crashed into the left side of the front vestibule.

Charles H. Tuttle and William B. Roul

(Court of Appeals of New York. June 9, 1925.) stone, both of New York City, for appellant.

Appeal from a judgment, entered May 22, 1924, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (208 App. Div. 352, 203 N. Y. S. 305), reversing a judgment in favor of plain148 N.E.-48

Thomas J O'Neill and Leonard F. Fish, 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.

Charles H. TUTTLE, Respondent, v. HOME INSURANCE COMPANY, Appellant.

(Court of Appeals of New York. June 9, 1925.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (-- App. Div. -, 208 N. Y. S. 948), entered March 31, 1925, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The 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 contained in a building separate from the dwelling house though physically connected therewith.

truck looked both ways when he was about 14 feet from the track, that he was driving about 5 miles an hour, that no crossing signal was sounded, and that there was no flagman at the crossing, though a city ordinance required that one should be kept there.

J. E. Kelly, of Buffalo, for appellant. Julius A. Schreiber and Hamilton Ward, both of Buffalo, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CARDOZO, POUND. CRANE, and LEHMAN, JJ., concur.

HISCOCK, C. J., and McLAUGHLIN and ANDREWS, JJ., dissent.

3

Julia A. WALSH, Respondent, v. Guy B. DICKISON, Appellant.

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

pellant.

Charles H. Tuttle and Martin A. Schenck, both of New York City, for respondent.

PER CURIAM. costs.

Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (- App. Div. - 207 N. Y. S. 935). entered January 26, 1925, afJudgment affirmed, with firming a judgment in favor of plaintiff en

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

2

tered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, who, at the time of the accident 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 pav. ing. Plaintiff in attempting to cross the

W. H. DILL COMPANY, Inc., Respondent, v. street at a regular crosswalk stepped down NEW YORK CENTRAL RAILROAD

COMPANY, Appellant.

(Court of Appeals of New York. June 9, 1925.) Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (207 App. Div 837. 201 N. Y. S. 957), entered October 10, 1923, unanimously affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover damages to an automobile truck which was struck by a locomotive of the defendant company in the city of Buffalo, at the point where Bird avenue crosses the railroad tracks of the defendant. It appeared that at a point approximately 130 feet from the crossing the track curves so as to shut off the view of an approaching train. There was evidence that the driver of the

into this trench, crossed it and seeing a stone against the further side stepped on it to regain the pavement, the stone gave way and she fell, sustaining the injuries com

plained of.

Frederick T Pierson, of Syracuse, for appellant.

Walter J Welch, of Syracuse, for respondent.

PER CURIAM. Judgments reversed, and new trial granted, costs to abide the event, on the ground that the evidence does not es tablish negligence on the part of defendant.

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

(148 N.E.)

In the Matter of the Application of William C. WHISH, Chairman and Legislative Representative of the New York State Legislative Board, Brotherhood of Locomotive Engineers, et al., Appellants, v. PUBLIC SERVICE COMMISSION of the State of New York, Respondent.

(Court of Appeals of New York. June 9, 1925.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (205 App. Div. 756, 200 N. Y. S. 282), entered June 19, 1923, which confirmed a determination of the Public Service Commission of the State of New York refusing to issue an order requiring locomotive engines used within the state to be equipped with vestibuled cabs pursuant to the provisions of section 77 of the Railroad Law, as amended by chapter 649 of the Laws of 1918, upon the ground of lack of jurisdiction, the commission holding that the law cannot be enforced by reason of the fact that Congress has asserted authority over the equipment of locomotives employed in interstate commerce, thus occupying the field to the exclusion of the state.

William E. Fitzsimmons, of Albany, for appellants.

Russell B. Burnside, of New York City, and Charles G. Blakeslee, of Binghamton, for

respondent.

PER CURIAM. Order affirmed, with costs, on opinion of Hinman, J., below. See, also, Act June 7, 1924 (43 Stat. 659), and B. & O. R. R. Co. v. Groeger, 266 U. S. 521, 530, 45 S. Ct. 169, 69 L. Ed. 419.

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

as trustees for the plaintiff; that they be required to account for the rents and profits thereof and convey the said property to the plaintiff upon payment of the purchase price, less the amount of rents received.

Daniel J. Dugan and Isadore Bookstein, both of Albany, and W. Joseph Shanley, of Troy, for appellant.

John T. Norton and George C. Lecompte, both of Troy, for respondents.

PER CURIAM. Judgment affirmed, with costs.

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

3

Catherine V. TROWBRIDGE, Appellant, v.

Katie OEHMSEN, Respondent.

(Court of Appeals of New York. June 9, 1925.)

Motion to dismiss an appeal from a judgment entered May 8, 1924, upon an order of the Appellate Division of the Supreme Court Div. 740, 202 N. Y. S. 833), reversing a judgin the Second Judicial Department (207 App. sion of the court at a Trial Term without a ment in favor of plaintiff entered upon a decijury and directing judgment in favor of de

fendant. The motion was made upon the ground of failure to file the required undertaking and serve copies of the case and briefs. William Baruch, of Port Chester, for the motion.

Benjamin I. Taylor, of New York City, opposed.

PER CURIAM. Motion granted, unless plaintiff within 10 days pays $10 costs of motion, in which case the motion is denied.

2

RAILWAY TERMINAL WAREHOUSE &
STORAGE COMPANY, Appellant, v.
James GEARY et al., Respondents.

(Court of Appeals of New York. June 9, 1925.)

4

Albert S. HECHT, Respondent, v. FRED T. LEY & CO., Inc., Appellant, Impleaded with Others.

Appeal from a judgment, entered March 9, (Court of Appeals of New York. June 9, 1925.)

1925, upon an order of the Appellate Division of the Supreme Court in the Third Judicial Department (212 App. Div 95, 208 N. Y. S. 417), reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and directing a dismissal of the complaint. The action was in equity to have it adjudged that defendants had purchased and held certain real property

Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (App. Div., 208 N. Y. S. 875), entered March 27, 1925, modifying, and affirming as modified, a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The motion was made upon the ground that the decision of the

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In the Matter of the Application of the CITY OF NEW YORK, Relative to Acquiring Title to Seventh Avenue, etc., in the Borough of Manhattan. In the Matter of the Application of Margaretta K. WELSH et al., as Executors of and Trustees under the Will of Henry Welsh, Deceased, Respondents and Appellants; Comptroller of the City of New York et al., Appellants and Respondents.

(Court of Appeals of New York. June 12, 1925.)

Cross-appeals, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (210 App. Div. 879, 206 N. Y. S. 972), entered November 21, 1924, which unanimously affirmed an order of Special Term, directing and authorizing the comptroller of the city of New York to pay forthwith unto the surviving executor and trustee under the will of Henry Welsh, deceased, the interest from July 24, 1919, the, date of the report of the commissioners of estimate, to April 29, 1921. the date of the confirmation of said report as to damage parcel No. 249 on the total sum of $131,172.02, together with lawful interest on said amount from April 29, 1921, down to the date of payment, and denied the motion of the petitioner for an order directing payment of interest on the award from the date of confirmation of the report of commissioners of estimate to the date of payment less certain lawful deductions together with interest thereon.

George P. Nicholson, Corp. Counsel, of New York City (Joel J. Squier and William B. R. Faber, both of New York City, of counsel), for appellants and respondents, Comptroller of City of New York and others.

Edwin W. Willcox, of New York City, for respondents and appellants executors and trustees.

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Nuisance

1925.)

June 12,

35-Judgment restraining exhibitions held too broad.

Where complaint was directed against boxing matches which attracted a noisy boisterous crowd, and evidence related to such matter, a judgment restraining defendant from holding any gymnastic or athletic entertainment or exhibition, or public exhibition or show, or any similar activity in the nighttime, was too broad and must be modified.

Division, Second Department.
Appeal from Supreme Court, Appellate

Injunction by Josiah J. Russell and others against the Nostrand Athletic Club, Inc. Judgment for plaintiffs (212 App. Div. 543, 209 N. Y. S. 76), and defendant appeals. Modified and affirmed.

See, also, 209 App. Div. 900, 205 N. Y. S. 950; 210 N. Y. S. 916.

John J. Fitzgerald, of New York City, and Abraham Lehman, of Brooklyn, for appel

lant.

George W. Tucker, and Orville C. Sanborn, both of New York City, for respondents.

PER CURIAM. There is evidence to sustain the new findings made by the Appellate Division, that the boxing matches conducted by the defendant at night constituted a nuisance in this residential section of the city, where the homes had been built and occupied long before the arena was constructed. With the weight of the evidence, we have nothing to do. The judgment, however, is too broad. The only complaint is against the boxing matches, which attract the noisy boisterous crowd; the evidence only relates to these. The judgment, however, restrains the defendant from holding "any gymnastic or athletic entertainment or exhibition or public exhibition or show or any other similar activity in the nighttime." This would prevent any theatrical performance or any other exhibition, no matter how quiet and peaceful the performance and the spectators might be.

The judgment must be modified so as to restrain any prize fight, boxing exhibition, boxing contest, wrestling contest, or any other similar activity in the nighttime; plaintiffs to have the right to apply at the foot of

PER CURIAM. Order affirmed, without this judgment for further relief as to any costs to either party.

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

exhibition claimed to be an activity similar to those specifically restrained.

As thus modified, the judgment should be affirmed, without costs.

HISCOCK, C. J., and
CRANE,

LAUGHLIN,

LEHMAN, JJ., concur.

POUND, J., absent.

Judgment accordingly.

(148 N.E.)

CARDOZO, Mc- George P. Nicholson, Corp. Counsel, of New ANDREWS, and York City (Joel J. Squier, of New York City, of counsel), for the motion.

PER CURIAM. Motion granted, and appeal dismissed, with costs, and $10 costs of motion.

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PER CURIAM. We have decided that con

siderations of justice and fairness to the defendant should lead the courts of this state to refuse jurisdiction of the present action to compel the defendant trust company to deliver securities and property to the plaintiff. We have not decided that equitable considerations ought not to lead the courts to. take jurisdiction of some other action in which a measure of relief might be granted

which would be fair to the plaintiff or its stockholders and yet afford adequate protection to the defendant.

The motion for a reargument should be denied, without costs, and without prejudice to the commencement of a new action for such relief.

2

In the Matter of the Application of the CITY OF NEW YORK, Respondent, Relative to Acquiring Title to Lands Required for the Opening of EIGHTEENTH AVENUE in the Borough of Queens. Anna A. Scheurer, Appellant.

(Court of Appeals of New York. June 12, 1925.)

Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (207 App. Div. 282, 202 N. Y. S. 167), entered December 7, 1923, which reversed an order of Special Term denying a motion to confirm the report of commissioners of estimate and assessment and confirmed said report. The motion was made upon the grounds that the decision of the Appellate Division was unanimous and that permission to appeal had not been obtained, that no question of law was involved, and that the appeal had not been prosecuted within the time prescribed by section 996 of the Charter of the City of New York.

3

(240 N. Y. 684)

BOWLBY et al. v. McQUAIL.

(Court of Appeals of New York. July 15, 1925.)

1. Appeal and error 861-On appeal by permission from intermediate order, Court of Appeals limited to consideration of questions certified.

mediate order of the Appellate Division, under On an appeal by permission from an interCivil Practice Act, § 588, subd. 3, Court of Appeals is limited to consideration of the questions certified.

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Appeal from Supreme Court, Appellate Division, First Department.

Action by Foster R. Bowlby, and others, as executors of George M. Bowlby, deceased, against John E. McQuail. From an order of the Appellate Division of the Supreme Court (211 App. Div. 869, 207 N. Y. S. 813), affirming an order of the Special Term, denying a motion to strike out the answer and for judgment on the pleadings, plaintiffs appeal by permission on questions certified. Appeal dismissed.

Appeal, by permission, from an order which affirmed an order of Special Term, denying a motion to strike out the answer and for judgment on the pleadings. The following questions were certified:

(1) Defendant's "separate defense" seeks to rescind an agreement under the terms of which defendant gave the deceased plaintiff the promissory note sued upon in the complaint. Can a defendant maintain and establish the defense of rescission of an agreement by reason of false representation, in a case where he gave no notice of an election to rescind, and make no offer of restoration prior to his answer and until the expira

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