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App. Div.]

THIRD DEPARTMENT, JULY TERM, 1896.

jections do not strike us as of force. The judgment should be affirmed, with costs. All concurred, except Parker, P. J, not sitting. Charles W. Little, Respondent, v. Albert V. Benson and Others, as Water Commissioners of the City of Albany, Appellants.- Order reversed, with costs and disbursements, and motion for injunction denied, with costs.— PUTNAM, J.: Örder reversed, with costs and disbursements, for reasons stated in the opinion in the case of Richard W. Brass +t al. v. Albert Rathbone et al., The Board of Water Commissioners of the City of Albany, decided at the present term. (See ante, p. 78.) All concurred, except Herrick J., not sitting. Jacob Kratzer, Appellant. v. The Village of Saratoga Springs, Respondent.-Judgment reversed and a new trial granted, costs to abide the event.

MERWIN, J. Appeal from a judgment entered in Saratoga county dismissing the complaint upon the ground that it did not state facts sufficient to constitute a cause of action.

I am inclined to the opinion that in the complaint, disregarding the allegations of negligence, a cause of action in the nature of a trespass is stated, and that the plaintiff should have been permitted to give his evidence on that subject. The acts of the defendant are charged as wrongful. There was alleged a physical invasion of plaintiff's premises. The case of Hay v. The Cohoes Co. (2 N. Y. 159) is recognized as good authority in St. Peter v. Denison (58 id. 416, 421); Benner v. A D. Co. (134 id. 156, 162); Booth v. R., W. & O. T. R. R. Co. (140) id. 267, 278). I, therefore, advise a reversal. Parker, P. J., and Landon, J, concurred; Herrick and Putnam, JJ., dissented HERRICK, J. (dissenting): The complaint in form is one for negligence, but the plaintiff asserts that the allegations of negligence are unnecessary and harmless, and without them the facts set forth constitute an action for trespass upon real estate, and that, therefore, it is unnecessary for him to allege the facts required by section 82 of chapter 289 of the Laws of 1890. As a general rule a party coming into court and asserting one cause of action cannot recover upon another and different one. (Rerd v. McConnell, 133 N. Y. 425-434.) But assuming that in the furtherance of justice a complaint may be stripped of some of the allegations which render it a complaint in one form of action, and thereby leave it a sufficient complaint under another form of action, I doubt even then whether this plaintiff can sustain his complaint. It may be that under the cases of Hay v. Cohoes Company (2 N. Y. 159) and Tremain v. Cohoes Company (id. 163), the plaintiff is entitled to recover upon merely showing that quarrying has been carried on by means of blasting, and thereby stones have been thrown upon his premises, although I think the later cases of Booth v. R., W. & O. T. R. R. Co. (140 N. Y. 267), and French v. Vix (143 id. 90), cast some doubt upon that question. But in this case we cannot assume from the complaint such a state of facts as warranted a recovery in the cases of Hay and Tremain. While we may disregard the allegations of carelessness and negligence in the complaint in so far as they are supposed to render the action one for negligence, yet the language still remains to characterize the transactions complaind of. Quarrying per se, is not a nuisance. In the compiaint it is charged that gunpowder, dynamite and other explo sives of a high character were employed by the defendant, its officers, agents and servants, in a careless and negligent manner, and that they carelessly and negligently blasted the rock on the premises occupied by said village, so that we may infer from

the language of the complaint that the injuries would not have happened if the explosives had not been carelessly and negligently used, or the blasting carelessly and negligently done, rather than that the injuries would have r sulted from the quarrying from the nature of the business itself. And again, it is alleged in the complaint that the dwelling and property of the plaintiff has been injured and rendered less valuable in consequence of the wrongful and negligent acts of the defendant, its officers, agents and servants. Whether we consider the action as one of negligence, of nuisance or of trespass to real estate, the fact remains that the plaintiff alleges that the injuries complained of have been caused by the negligence of the defendant, its officers, agents and servants. The section of the law referred to does not require the notice to be given merely in an action of negligence, but where the injury done to person or property is "Alleged to have been sustained by reason of the negligence of the village or of any officer, agent or employee." (§ 82, chap. 289, Laws of 1890. The plaintiff in his complaint alleges that the injuries were sustained by reason of the negligence of the village, its officers, agents and servants, so that he is brought distinctly within the provision of the law requiring notice.-Judgment should, therefore, be affirmed, with costs. Putnam, J., concurred.

Daniel Lynch and Henry C. Roblee, Appellants, v. William Sanders, Respondent; William Moore, Appellant, v. Taylor J. Eldridge, Respondent.

In Lynch v. Sanders judgment reversed.and a new trial granted, costs to abide the event. In Moore v. Eldridge judgment reversed as to that portion thereof relating to the east half of lot 57, and a new trial granted, and as to the west half affirmed, without costs of the appeal; all other costs to abide the event.

LANDON, J.: The controversy in each case is over a garnet mine. In the first case, if the mine is situate upon lot 59. Totten and Crossfield's purchase, township 14, Pond's survey, made in 1802, then the right to work the mine is in the plaintiffs under a license from the State; if, however, the mine is not upon lot 59, then it is upon lot 62, owned by the defendant, and holding title as the lot is described by said Pond's survey. These lots adjoin each other, and the problem is to locate the boundary between them according to Pond's survey. In the second case, if the mine is upon the east half of lot 57 in the same township according to Pond's survey, then the plaintiff has the right to work it; if not upon the cast half of 57, it is on the west half of the lot, and the defendant has the right to work it, unless, for reasons hereafter to be considered, the plaintiff has the right to the garnet on the west half of the lot. The determination of the westerly boundary of 57 will aid in fixing the boundary between the easterly and westerly halves of the lot, and the westerly boundary of 57, prolonged northerly, will give the boundary between lots 59 and 62. The two cases were tried together, and may now be considered together. The exterior lines of the 14th township of Totten and Crossfield's patent were originally surveyed and indicated by marked trees in 1772 by Israel Thompson, and he plotted upon a map the the interior lots, 144 in all, some of which he surveyed. In 1802, John Ireland, having acquired title to the north half and the southeast quarter of the township, caused his three-quarters of the township to be surveyed by Benjamin Pond and subdivided into lots. The northerly central part of the township is rocky and mountainous, and

THIRD DEPARTMENT, JULY TERM, 1896.

Pond did not locate the lot lines of this portion upon the ground, but drew them on his The map then made by Pond and map. the field notes of his survey constitute the "Pond's survey," referred to in the titles of the respective parties. This survey the plaintiff's produced in evidence. This is the controlling survey in these notes. All other surveys, unless based upon Pond's survey, or shown to correspond with it, are irrele vant. By Pond's survey it appears that township 14 embraces a rectangular tract, 520 chains or 61⁄2 miles long from north to south, by 6 miles less 7 chains, or 473 chains wide from east to west. The three-quarters of the township acquired by Ireland are divided into 108 1sts, each 40 chains | square, except those in the most westerly tier, which are 33 chains wide from east to west, and those in the most northerly and southerly tiers which are 60 chains long from north to south. Thus all the lots except those next the north, south and west sides are mapped as being 40 chains square, each containing 160 acres. To this there is this exception: A branch of the Hudson river flows through the township, and the field notes show that some of the lots cut by the river take the river for a boundary, although laid down as squares upon the map. Our examination results in the conviction that we must reverse these judgments. The main ground for this conclusion is that the testimony upon the part of the plaintiffs as to the boundaries in question tended to locate them according to Pond's survey, while the testimony on the part of the defendants was not shown to do So, except incidentally. It tended to show that the defendants established a corner of a lot a mile and a half distant from the nearest lot in controversy and ran a compass line according to an estimated course and distance to the lots in question without seeking to identify it upon the ground with the line so far as Pond established it on the ground. These are not cases where the surveyors contradict each other, but where they adopt different methods of finding the line, and each one tells the truth as to his methods and discoveries. Further discussion will be clearer by reference to the outlines of Pond's map, a copy of which we insert.

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[Vol. 8.

as were given in evidence, show that he surveyed and marked upon the ground the boundary lines of some of the lots. We have shaded these lines heavily. It will be seen from the map thus shaded that the line between the fifth and sixth north and south tiers of lots is the line sought. Pond located this line upon the ground from the south line of 53 and 68 to the north line of 57 and 64, thus giving the west boundary of 57. If this line is prolonged northerly, it will give the boundary between 59 and 62. The best way to determine this line is to find it on the ground so far as it was marked upon the ground by Pond, and then prolong it in the same course between 59 and 62, for the line fixed by Pond upon the ground as described in his field notes is the line that he intended to draw upon his map; and if there is any difference between them the actual location is to be preferred to the theoretical one, since the actual location is the contemporaneous designation of his theoretical line The plaintiff's, by their surveyors, attempted to find this line. They first located the east line of the township, and the defendants concede that they did so accurately. They next sought the east and west center line, which the field notes refer to as the south line of 42 and 55, and the north line of 54. The field notes, as the shaded line indicates, show that Pond located this line from the eastern boundary of the township to the southwesterly corner of 73, a distance of 480 chains. The field notes show that the center line and the corners of lots upon the center line were indicated by marked trees. The evidence tending to show that the plaintiffs' surveyors found, traced and identifed this center line, at least from the eastern boundary of the township to the southwest corner of lot 55, is very convincing. It was a line which one of the surveyors, Mr. Morse, had traced many years before. His father was a surveyor, the agent of Ireland for the sale of lands in the township; and as such agent had the custody of Pond's survey from 1837 until his death in 1866, when the survey passed into the custody of this witness. The witness, with his father, had been over the line, and his father had pointed it out to him, especially the southwest corner of 55. Since his father's death he had traced it again. Mr. Morse assisted Mr. Colvin, the chief surveyor for the plaintiffs, and Mr. Colvin found some of the marks indicated by the field notes of Pond, and found corroboration of Morse's statements in marked trees, corners, fences, and in courses and distances. It is plain that if the plaintiffs' surveyors found the southwest corner of 55 as located by Pond's survey, they found a point in the line sought, from which it was safe to proceed northerly. It appears from the field notes that the southwest corner of 55 is on the center line, 24 chains west from the west bank of the Hudson river. The plaintiffs' surveyors located it 23 chains west of the west bank of the river, where Mr. Morse testified the corner was pointed cut to him by his father, and 197.86 chains from the east line of the township, the survey calling for 200 chains. The location found is more favorable to the defendants by 2.14 chains than the survey calls for. From this point northerly the line seems to have been traced and identified, and, according to this line, the garnet mine in dispute, between 59 and 62, was found to be upon 59, and the mine Mr. upon 57 upon the east half thereof. Ireland was the owner of these lands, and sold most of the lots on either side of the boundary, between the fifth and sixth north and south tiers of lots, according to Pond's survey. Presumably, therefore, the lines and corners of these lots. so far as they are marked upon the ground and acquiesced in

App. Div.]

THIRD DEPARTMENT, JULY TERM, 1896.

by the adjoining owners, are substantially | the same as fixed by Mr. Pond. In the absence of evidence to the contrary, we may assume that they remain where they were originally placed. Evidence as to some of these lines and corners tended to corroborate the line as claimed by the plaintiffs. The plaintiffs adduced other corroborative evidence which we do not deem it important to dwell upon. We next notice the survey upon which the defendants rely. Mr. Arnold was the principal surveyor. He did not have Pond's survey, although he had a map made by Mr. Richards which was a substantial copy of Pond's map. He did not have a copy of Pond's field notes. He had a copy of Israel Thompson's survey, made in 1772, including his field notes. Mr. Arnold seems to have placed large reliance upon Thompson's field notes. These made the township 480 chains wide, instead of 473 chains wide, as stated in Pond's survey. Twelve years before, Mr. Arnold had measured from what he assumed to be the southeast corner of the township, along a course which he assumed as its south boundary, 130.87 chains to the east bank of the Hudson river, where it crosses such course or boundary. This point on the river bank he assumed as the starting point of his survey. It is distant in a straight line from the south line of the east and west tier of lots, in which lot 57 is situate 44 miles or 340 chains. He thence crossed the river upon the same course, 5.03 chains, to the middle of the Indian Lake road, which follows the river for some distance, and ran a traverse line by various courses and distances to what was described to him as the north line of 68, and then located the northeast corner of 68, "a chain or two of (from) the river" on its west side, at a distance which he computed (not measured) to be 198 chains, 67 links from the east line of the township, and from that point ran his line upon a compass course, north 25 degrees, 45 minutes west, and thus established the line sought, far enough to the east to place the garnet mines upon the defendants' lots. He passed the southwest corner of 55, 3.85 chains easterly of the corner as fixed by the plaintiffs' surveyors. is proper to state that he supports his line by reference to marked trees and other measurements, but he did not have Pond's field notes, and made no effort to find the line as established by Mr. Pond. It would not be useful to review the voluminous testimony adduced by the respective parties in support of their respective lines. The plaintiffs' theory of the case was right, namely, to find and designate the boundary line as fixed by Pond's survey, and from the evidence it is apparent that it is practicable to do this. The defendants' theory was to locate a line on a fixed course and distance from the northeast corner of lot 68, a corner not ascertained from Pond's survey, and not shown to be the same as designated by it. Pond's field notes describe the four lots which have this corner in common. It would be proper to start from that corner, but it should be located, if possible, according to Pond's field notes. It is true that the burden was upon the plaintiffs to establish the line claimed by them and the weakness of the defendants' proofs does not assist them in making a prima facie case, though it may in defending it after it is first made out. It is plain that the court gave an effect to the defendants' plan to which it was not entitled. The plaintiffs made various requests to find, notably the twelfth, thirteenth and fourteenth in Moore v. Eldridge, and the eleventh, twelfth and

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thirteenth in the other case, which, as the practice then was, they were apparently entitled to have found in their favor. It follows that the judgment in Lynch v. Sanders should be reversed, a new trial granted, costs to abide the event.

In Moore v. Eldridge, the plaintiff, in addition to his conceded right to the garnet in the east half of lot 57, also claimed the right to mine all the garnet upon the west half, east of Racquette brook. Mrs. Connors was the owner of the west half of lot 57, and she agreed, in consideration of ten dollars, with Wood and Shields, under whom the plaintiff claims, to convey to them a right of way from the highway across the west half of the lot to the east half. Wood and Shields caused the deed for the right of way to be prepared, and to be inserted therein a clause giving them the right to mine the garnet on the west half of 57, east of Racquette brook, and by deceit procured Mrs. Connors to execute such deed, without her knowing that it contained the clause conveying the garnet. This she did in May, 1890. Wood and Shields recorded this conveyance, June, 1890. Wood and Shields sold the interest thus acquired from Mrs. Connors to the plaintiff, April 13, 1891, for $500, but at the time of this sale, the defendant's principals were in possession of the mine claiming under Mrs. Connors, and the plaintiff withheld by agreement with Shields and Wood $300 of the purchase money until he should obtain possession. Mrs. Connors subsequently sold the right to mine the garnet upon her west half of the lot to the defendants' principals. The court found these facts upon the evidence, and also that the plaintiff was not a bona fide purchaser of the garnet upon the west half of the lot, east of Racquette brook, and held that so much of the deed as conveyed the garnet on the west half of 57 was void, and such is one of the decrees of the judgment. We are satisfied that the fraud was established, and that if Mrs. Connors had been a party to the action, she would have been entitled to a reformation of the deed limiting the grant to the right of way without offering to restore the ten dollar consideration. The defendant is in under Mrs. Connors, and, therefore, can make the same equitable defense that she could make. (Crary v. Goodman, 12 N. Y. 266; Webster v. Bond, 9 Hun, 437.) This cause of action is in the nature of ejectment, and if Mrs. Connors had an equitable title, or has an equitable defense, she transferred the same to the defendant, so far as he needs them for his defense. No affirmative relief is necessary; the defendant merely seeks to defeat the plaintiff's cause of action, so far as it is based upon Mrs. Connors' deed to plaintiff's grantors of the garnet on the west half of the lot, east of Racquette brook. The judgment declaring the deed void is only operative to protect the defendant.

The judgment in Moore v. Eldridge is reversed as to that portion thereof relating to the east half of lot 57, and a new trial granted, and as to the west half, affirmed, without costs of the appeal. All other costs to abide the event. Herrick and Putnam, JJ., concurrred; Merwin J, dissented; Parker, P. J., not voting.

Edward Palmer, Respondent, v. The New York and Lake Champlain Transportation Company, Appellant.- Judgment and order reversed and a new trial granted, costs to abide the event.

HERRICK, J.: This case has twice been before the court upon appeal (76 Hun, 181: 88 id. 509). The facts are substantially set forth in the opinion in 88 Hun, 509, and it is

FIRST DEPARTMENT, JULY TERM, 1896.

unnecessary to restate them here. The only | substantial differences that are claimed to exist in the facts now before us from those when last before the court are, it is claimed, that it now appears that the boats Baker and Cook were racing at the time of the accident, and that also, just prior to the occurrence of the accident, the Cook turned in towards the middle of the channel, thus bringing her hawser across the bow of the plaintiff's boat. The evidence, while it may be considered as tending to establish that the boats were in fact racing, does not show that they were going at a greater rate of speed than was testified to upon the last preceding trial. And while the plaintiff testified that the Cook turned towards the middle of the channel just prior to the accident, he also testifies that at that point the channel kept getting narrower, and that the boats kept getting nearer and nearer together, and that is what he meant in saying that the Cook turned in towards the middle of the channel; so that practically the facts presented here upon this appeal are not different from those before presented.

It is contended that the accident happened through the concurring negligence of the Baker and the Cook; and assuming that the action of the Baker was in violation of the rules of navigation, and was the pri mary cause of the accident, yet it is contended upon the part of the plaintiff that the defendant did not discharge its whole duty in not seeking to avoid the result of the Baker's action; that it becoming manifest, or probable, that a collision would occur if both boats continued in their course; that the defendant did not take proper care and precaution to avoid the impending collision; that seeing that the Baker was insisting in continuing in its course, refusing to slow up, and persisting in its endeavor to pass the Cook at a place where it was dangerous so to do, that it was incumbent upon the Cook to take such precautions, even to the extent of waiving what might be termed its legal right of way, as would prevent the tows coming together. Assuming it to be the duty of the Cook when it found that the Baker was persisting in its endeavor to pass at a point where it was dangerous to do so, it then remains to be seen as to whether it could do other than it did do for the purpose of preventing any collision between the boats. The weight of the testimony I think establishes, as it did before, the fact that the Cook continued as near to the Vermont shore as it was possible to do without running aground. The testimony is that it was digging the mud

[Vol. 8.

from the bottom, that it only departed from its course in following the channel as it grew narrower. It is contended, however, upon the part of the plaintiff that it should have slowed up sufficiently to avoid the danger, and there is some testimony upon the part of the plaintiff's witnesses that the Cook made no effort to reduce its speed; but other evidence tends to prove, and I think establishes, that the speed of the Cook was reduced, and that it could not be further reduced without the tow "kicking up," to use the language of the boatmen testifying, and thus be brought into collision with the tow of the Baker, or running aground in the shallow water of the Vermont side of the channel. I am inclined to think that the preponderance of testimony shows that the navigator of the Cook did not do anything but what could reasonably be expected of him under the circumstances. For these reasons I think the judgment should be reversed, and a new trial granted, costs to abide the event. All concurred.

William L. Ford, Appellant, v. Frederick E. Ross, Respondent.-Judgment affirmed, with costs. No opinion. All concurred. Sylvester W. Hall, Appellant, v. The La France Fire Engine Company, Respondent.-Judgment affirmed, with costs. No opinion. All concurred.

Elizabeth C. Leavenworth, Respondent, v. Arthur M. Dodge, Appellant. Judgment affirmed, with costs. All concurred, except Landon, J., not sitting. No opinion.

John E. McElroy, as Executor, etc., v. National Savings Bank of Albany et al.-Judgment for the plaintiff, without costs. All concurred. No opinion.

Helen Matthews, Respondent, v. Horace Matthews, Appellant.-Judgment modified by reducing it to the sum of seventy dollars, being items, thirty dollars for repairs, finding No. 7, and forty dollars for hay, finding No. 3, with interest from March 2, 1888, and as so modified affirmed, without costs of this appeal to either party. No opinion. Putnam and Herrick, JJ., dissented.

The People of the State of New York, Respondent, v. The Third National Bank of Syracuse and Another, Appellants. Impleaded with Others.-Judgment affirmed, without costs. All concurred. No opinion. John P. M. Ransom, Respondent, v. George Watts, Appellant. -Judgment affirmed, with costs. All concurred. No opinion.

William R. Woodbridge v. William D. Marks. -Motion for leave to go to the Court of Appeals denied, without costs.

FIRST DEPARTMENT, JULY TERM, 1896.

Agnes J. Adsit, as Administratrix, etc., of Frank L. Adsit. Deceased, Appellant,_v. General Fire Extinguisher Company, Respondent.-Order reversed, with ten dollars costs and disbursements, and motion for preference granted.

PER CURIAM: This order must be reversed.
The notice of claim of preference and that it
would be moved for at the opening of the
court was duly given. It was served with
the notice of trial and was sufficient to
satisfy the statute. The special notice was
given pursuant to and in consequence of
the adoption of Rule 3 of the Trial Term rules
of this court. Present-Barrett, Rumsey,
Patterson and Ingraham, JJ.

Arthur A. Carey, Appellant, v. Cecelia V.
Kieferdorf et al., Respondents.- Order re-

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versed, with ten dollars costs and disbursements, and motion denied, with ten dollars

costs.

PER CURIAM: The order appealed from should be reversed, for the reason that the applicant was not a judgment creditor of the owner of the premises at the time of the filing of the notice of lis pendens. He was, consequently, neither a necessary nor a proper party, and he had no right to intrude into the action merely to secure notice of the sale of the premises. Having avowedly no defense to the action, as he had no lien upon or interest in the premises at the time of its commencement, his application should have been denied, with costs. The order should be reversed, with ten dollars costs and disbursements, and the motion denied,

App. Div.]

FIRST DEPARTMENT, JULY TERM, 1896.

with ten dollars costs. Present Barrett, Rumsey, Patterson and Ingraham, JJ. Corn Exchange Bank, Respondent, v. Bartolome M. Bossio, Appellant.- Order affirmed, with ten dollars costs and disbursements.PER CURIAM: The rule with regard to executory contracts for the sale of goods, as between vendor and vendee, laid down in Pope v. The Terre Haute Car & Mfg. Co. (107 N. Y. 61), has no application to the present case. The question here is between principal and agent. And that question simply is, whether the defendant shall repay to his agent moneys which the latter, pursuant to instructions. has paid out for him. The agent purchased property for the defendant, and paid for it. He did so at the defendant's request. The property was delivered to the defendant, and now the agent's assignee demands what the agent has paid out, together with the commission. The case is clear and simple prima facie, and the attachment was properly sustained. The order should be affirmed, with ten dollars costs and disbursements. Present- Barrett, Rumsey, Patterson and Ingraham, JJ. William M. Colgin, Appellant, v. United States Mercantile Reporting Company, Respondent.- Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

PER CURIAM: We think the order below was entirely unauthorized. The plaintiff, by his original complaint, alleged the publication of the statement referred to in the first cause of action, but alleged that it was made in connection with another statement which, in the amended complaint, constitutes a second cause of action. The motion was merely to separate the two publications as having been made at two separate times, instead of both at one time, as alleged in the original complaint. There was nothing in this amendment which stated a new and independent cause of action. It was simply separating in the amended complaint two causes of action that had been improperly joined. If the defendant published of and concerning the plaintiff the statement contained in the first cause of action, the plaintiff has the right to sue to recover the damages sustained by such publication, and the separating of the two causes of action, alleged in the original complaint as one cause of action, does not now prevent the defendant from pleading any defense to either of the causes of action that he may have. The question as to the right to serve the amended pleading is not before us. The amended complaint was received without objection, and no motion was made to set it aside as improperly served. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. PresentBarrett, Rumsey, Patterson and Ingraham, JJ.

Thomas N. Dwyer, Appellant, v. James Rorke, Respondent.-Order reversed, with ten dollars costs and disbursements and the motion granted.-

PER CURIAM: The rights of the parties to the fund in court are settled by the judgment in this action, and so long as that judgment stands there is no doubt that the plaintiff is the owner of more than $10,000 of that fund. That judgment, although appealed from, is presumed to be correct, and unless proceedings are stayed in the action pending the appeal, the plaintiff is entitled to his share of the money awarded him by that judgment. The undertaking which was given in this action is not sufficient to stay the proceedings of the plaintiff for the purpose of obtaining the payment of that money. (SteinAPP. DIV.-VOL. VIII.

back v. Diepenbrock, 5 App. Div. 208.) Until those proceedings were stayed, the plaintiff was entitled to have the money paid over to him within the rule laid down in that case. The order made in this case, therefore, was erroneous and must be reversed, with ten dollars costs and disbursements, and the motion granted. Present Barrett, Rumsey, Patterson and Ingraham, JJ. Joseph A. Ferris, Appellant, v. Tilly Haynes, Respondent.- Order affirmed, with ten dollars costs and disbursements.--

PER CURIAM: The order denying the motion for a discovery of books and papers was right. The General Term of the Court of Common Pleas expressly held that the plaintiff could not recover a percentage as brokerage on any fixed sum, for the reason that no fixed sum was mentioned in the lease as rental. Whether that decision was correct or not is not the question, and it cannot be reviewed on an appeal from this order. It is the law of the case, as laid down by the General Term of the court in which the action was brought. Under the decision, as made by the General Term, it would be useless to undertake to give evidence of net profits payable as rent, because the court held that there was nothing payable as rent, and that the principle controlling the case was such that no recovery could be based upon a specific sum, no matter how that specific sum might be ascertained, it not being mentioned in the issue; or, in other words, there was nothing payable as rent from the lessee to the lessor until at the end of the accounting, and that, therefore, the plaintiff had mistaken his remedy, and should have sued on a quantum meruit. The court below was right, therefore, in holding that the motion must be denied upon the opinion of the General Term of the Court of Common Pleas. Present - Barrett, Rumsey, Patterson and Ingraham, JJ. William H. Hamilton, as Assignee, etc., Appellaut, v. Joshua S. Piza, Respondent.- Order reversed, with costs, and cause restored to the Special Term calendar for trial.— PER CURIAM: This cause was properly upon the equity calendar. The issues joined were such as could not be tried by a jury. It specifically appeared that the action was not to recover damages to be assessed or ascertained only by a jury in the ordinary way, but judgment was demanded in the complaint against the defendant for an amount which must be determined to be due to the plaintiff, after an accounting, which accounting was also prayed for of all the amounts of loans furnished by the plaintiff's assignors under and pursuant to an agreement for the management of the business of a corporation, and of the amount of the indebtedness of the corporation existing in favor of the plaintiff's assignors, and judgment is asked for the application of moneys to be found due on an accounting to the payment of the indebtedness provided for under the terms of the contract annexed to the complaint. The accounting lies at the very foundation of the action, and it was error to refuse to try the cause at Special Term. The order must be reversed, with costs, and the cause restored to the Special Term calendar for trial. Present-Barrett, Rumsey, Patterson and Ingraham, JJ. In the Matter of the Peekamose Fishing Club. -Orders affirmed, with ten dollars costs of each appeal and disbursements.— PER CURIAM: The appellants have been guilty of gross laches in the making of the present motion. The orders which are complained of as irregular were made in October of last year and the present motion was made in June of this year. Meanwhile the

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