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of the Appellate Division of the Supreme Court in the First Judicial Department (165 App. Div. 911, 150 N. Y. Supp. 1086), entered December 3, 1914, 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. The complaint alleged that said defendant and its agents and servants drove a horse to which was attached a vehicle belonging to and used by the defendant for the collection of dirt, ashes, and garbage so negligently and carelessly that one of the wheels of the vehicle got on the sidewalk whereon the plaintiff was then lawfully and rightfully standing and ran over his left foot, crushed the big toe thereof, and caused other injuries to his foot. Lamar Hardy, Corp. Counsel, of New York City (E. Crosby Kindleberger and Terence Farley, both of New York City, of counsel), for appellant. Samuel Leavitt, of New York City, for respondent. PER CURLAM. Judgment affirmed, with costS. WILLARD BARTIETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY. J.J., concur.

GALLINA, Respondent, v. McGOVERN et al., Appellants. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (165. App. Div. 905, 149 N. Y. Supp. 1083), entered November 18, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendants, his employers. The intestate was killed through the breaking of a plank of a scaffold on which he was working causing him to fall. The action was based upon sections 18 and 19 of the Labor Law (Consol. Laws, c. 31). Alfred E. Holmes and Clayton J. Heermance, both of New York City, for appellants. Ludwig L. Scaserra, Harold A. Callan, and Julius Riedler, all of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costS.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY, J.J., concur.

GARDNER, Respondent, v. CENTRAL PARK, N. & E. R. R. CO., Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (168 App. Div. 912, 152 N. Y. Supp. 1112), entered April 28, 1915, 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 the defendant. It was alleged that while the plaintiff was standing on the platform of one of defendant's cars waiting for it to stop, the motorman put on power, the car suddenly shot forward with a violent jerk and the plaintiff was thrown from the car, receiving the injuries complained of; that the motorman knew at that time that the plaintiff had come upon the platform with the intention of getting off. Chase Mellen and Martin Taylor, both of New York City, for appellant. David J. Gallert and Walter S. Heilborn, both of New York City, for respondent.

PER CURIAM. COStS.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, J.J., concur.

GAS ENGINE & POWER CO. et al., Respondents, v. CITY OF NEW YORK, Appel

Judgment affirmed, with

lant. (Court of Appeals of New York. May 12, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (166 App. Div. 297, 151 N. Y. Supp. 310), entered January 6, 1915, affirming a judgment in favor of plaintiffs entered upon the report of a referee. The action was commenced to recover the amount of a certificate made by the board of assessors of the city of New York purporting to award to the plaintiff, pursuant to chapter 423 of the Laws of 1903, the sum of $310,000, with interest, for damages occasioned to its property by reason of the improvement of 177th street, in the borough of the Bronx, city of New York. The improvement consisted of the construction of a bridge over certain railroad tracks, and the building of approaches to the bridge. The answer denies the material allegations of the complaint and sets up as affirmative defenses: (1) That the award was made before the damage accrued. (2) That the board of assessors was without jurisdiction to make any award to the plaintiff. (3) That the board of assessors was without jurisdiction to award interest. (4) That the award was grossly excessive in amount. Lamar Hardy, Corp. Counsel, of New York City (Charles J. Nehrbas and Terence Farley, both of New York City, of counsel), for appellant. John F. Brennan, of Yonkers, for respondents.

PER CURIAM. Judgment affirmed, with costs, on opinion below.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and SEABURY, J.J., concur.

GOLDSTEIN, Respondent, v. NEW YORK STATE RYS., Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department. (164 App. Div. 910, 148 N. Y. Supp. 1117), entered August 5, 1914, affirming a judgment in favor of plaintiff in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant. The complaint alleged that the defendant maintained a double street railway car track on Central and Joseph avenues in the city of Rochester; that at the curve where the cars turn at right angles, at the corner of Joseph and Central avenues, the tracks are so constructed that cars in passing each other at the north end of the curb would strike, but that they could pass safely in the center of the curve; that certain unusually long cars could not be operated on the curve; that the sharpness of the curve and the operation of the long cars created a dangerous situation, and required very careful operation of the cars; that the plaintiff's intestate was riding on the left-hand side step of the car entering the city down Joseph avenue, which was crowded inside and outside, with no room for the plaintiff's intestate to ride, except where he was riding, and that passengers were riding on the outside of the car and were accepted as passengers in that position; that a car bound outward entered the curve at this particular corner and passed to the north end of the curve, when the car inward bound was negligently operated and entered the curve when it should not have done so, and as a result the cars collided and the plaintiff's intestate was killed. Paul Folger, of Rochester, for appellant. Percival De Oviatt, of Rochester, for respondent.

PER CURIAM. . Judgment affirmed, with costS.

WIILARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY, JJ., concur.

In re GRAY. (Court of Appeals of New York. May 12, 1916.) . Motion to dismiss an appeal from an order of the Appellate Division of the

Supreme Court in the Second Judicial Department (156 N. Y. Supp. 877), entered December HEITZ, Respondent, v. RUPPERT et al., Ap30, 1915, which affirmed an order of Special pellants. (Court of Appeals of New York. May Term granting a motion to set aside a judgment. 30, 1916.) The motion was made upon the ground of fail PER CURIAM. Motion for reargument deure to file the required undertaking. Thomas nied, with $10 costs. See 218 N. Y. 148, 112 C. McDonald, of New York City, for the mo- N. E. 750. tion. Samuel J. Siegel and Louis H. Solomon, both of New York City, opposed. PER CURIAM. Motion granted, unless with- HEWLETT BAY CO., Appellant. (Court of

HENRY STEERS, Inc., Respondent, v. in 10 days the appellant files and serves the Appeals of New York. May 30, 1916.) Motion necessary undertaking and pays to the respond to dismiss an appeal from a judgment of the ent $10 costs of this motion; if these conditions Appellate Division of the Supreme Court in the are complied with, the motion is denied.

First Judicial Department (155 N. Y. Supp.

1112), entered December 10, 1915, affirming a In re HAMILTON PLACE IN CITY OF judgment in favor of plaintiff entered upon a NEW YORK. (Court of Appeals of New York. verdict in an action to recover compensation for June 13, 1916.) Appeal from an order of the additional work and expense in the performance Appellate Division of the Supreme Court in of a contract. The motion was made upon the the First Judicial Department (155 N. Y. Supp. ground that the action was for services, that per1112), entered October 22, 1915, which affirmed mission to appeal had not been obtained, that an order of Special Term confirming the report the appeal was frivolous, taken solely for delay, of commissioners of estimate and appraisal in and that no proper return had been filed. condemnation proceedings. The question on Charles Thaddeus Terry, of New York City, for appeal was as to the sufficiency of the award and the motion. Alfred T. Davison, of Brooklyn, opthe propriety of the methods adopted by the posed. commissioners in deciding the amount thereof. PER CURIAM. Motion denied, without Thomas C. Blake and Maurice Deiches, both of costs. New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Charles J. HERRMANN et al., Appellants, v. CABINehrbas, Terence Farley, and Henry W. Mayo, NET LAND CO., Respondent, et al. (Court of all of New York City, of counsel), for respond- Appeals of New York. May 30, 1916.) ent.

PER CURIAM. Motion for reargument dePER CURIAM. Order affirmed, with costs. nied with $10 costs. See 217 N. Y. 526, 112

WILLARD BARTLETT, C. J., and HIS-N. E. 476.
COCK, CHASE, CUDDEBACK HOGAN, ,
CARDOZO, and POUND, JJ., concur.

In re HERRMANN'S WILL. (Court of Ap

peals of New York. May 30, 1916.) Motion to HAMILTON TRUST CO. v. DICKERSON late Division of the Supreme Court in the First

of et al. (Court of Appeals of New York. May 30, Judicial Department (158 N. Y. Supp. 1118). 1916.) Motion to dismiss an appeal from a entered April 14, 1916, which affirmed an order judgment of the Appellate Division of the Su. of the New York County Surrogate's Court de preme Court in the Second Judicial Department nying a motion to vacate and set aside a prior (157 N. Y. Supp. 1128), entered March 9, 1916, order denying probate to a paper propounded as affirming a judgment in favor of plaintiff enter the last will of Magdalena Herrmann, deceased. ed upon a decision of the court on trial at Spe- The motion was made upon the ground that the cial Term in an action to foreclose a mortgage. order was not appealable as of right to the Court The motion was made upon the grounds that of Appeals and that permission to appeal had the Appellate Division unanimously decided

not been obtained. Gilbert D. Lamb, of New that the findings

of fact were supported by the York City, for the motion. Gustav Goodmann, evidence, and that the Court of Appeals bad pol of New York City, opposed. jurisdiction to review the judgment appealed from. Edward J. Connolly, of Brooklyn, for the

PER CURIAM. Motion granted and appeal motion. Charles L. Craig, of New York City, dismissed, with costs, and $10 costs of motion. opposed.

HICKINBOTTOM, Respondent, PER CURIAM. Motion denied, with $10 TRAL PARK, N. &' E. R. R. CO., Appellant.

v. CENcosts.

(Court of Appeals of New York, May 23, 1916.)

Appeal from a judgment of the Appellate DiviHARLEY, Respondent, v. PLANT et al., Ap-sion of the Supreme Court in the First

Judicial pellants. (Court of Appeals of New York, May Supp. 1120), entered June 23, 1914, affirming

Department (163 App. Div. 948, 148 N. Y. pellate Division of the Supreme Court in the a judgment in favor of plaintiff entered upon a Second Judicial Department (168 App. Div. verdict in an action to recover for the death of 931, 152 N. Y. Supp. 1116), entered April 28, plaintiff's intestate alleged to have been occa1915, affirming a judgment in favor of plaintité sioned through the

negligence of defendant. entered upon a decision of the court at a Trial Plaintiff's intestate was seated at the end of a Term without a jury in an action to recover up to its car barns, when a car on the track insive

bench maintained by defendant in front of gates on a bond executed by the two defendants, to leading to the gates was started by an employé discharge a mechanic's lien filed with the comp- of the defendant, and while under his manage

the against funds due one Peter Guthy on a munici- ment crashed into the gates with such force as pal contract, the validity of the lien having been to push them forward and outward against the established in a previous action in which the bench and hurl the plaintiff's intestate to the

James Troy, of ground, causing injuries from which he died. Brooklyn, and Frank S. Angell, of New York for the injuries for the reason that the employé's Brooklyn, and Frank s. Angell, of New York Defendant answered that it was not responsible Frank E. Johnson, Jr., both of Brooklyn, for act was beyond the scope of his employment, was

unauthorized and unsanctioned by defendant, respondent. l’ER CURIAM. Judgment affirmed, with employed to do. Furthermore, that plaintif's

and was not in furtherance of the work he wis costs.

intestate had no right to sit upon the bench, WILLARD BARTLETT, C. J., and CHASE, which was for the use of defendant's employés CUDDEBACK, CARDOZO, SEABURY, and and not for the use of the public, and that the POUND, JJ., concur. COLLIN, J., not voting.'intestate had been warned against using the

113 N.E.-67

bench. Chase Mellen and Martin Taylor, both
of New York City, for appellant. Joseph A. INTERBOROUGH RAPID TRANSIT CO.,
Burdeau and Joseph W. Clausen, both of New Appellant, v. KELSEY, Respondent. (Court of
York City, for respondent.

Appeals of New York. July 11, 1916.) Appeal PER CURIAM. Jndgment affirmed, with from a judgment of the Appellate Division of costs.

the Supreme Court in the First Judicial

Department (166 App. Div. 567, 149 N. Y. WILLARD BARTLETT, C. J., and CHASE, Supp. 741), entered November 11, 1914, afCOLLIN, CUDDEBACK, CARDOZO, SEA- firming a judgment in favor of defendant enBURY, and POUND, JJ., concur.

tered upon a decision of the court on trial at Special Term in an action to recover the down money paid by plaintiff as vendee on the exe

cution of a contract to purchase a parcel of In re HINDS, NOBLE & ELDREDGE land on the Harlem river.' Plaintiff also sought (Court of Appeals of New York. June 13, to establish and foreclose a lien on the land 1916.) Appeal from an order of the Appellate for the repayment of said amount, Division of the Supreme Court in the First Ju- pleads a counterclaim for specific performance dicial Department (158 N. Y. Supp. 219), enter of the contract. The judgment dismisses the ed April 14, 1916, which reversed an order of complaint and gives judgment on the counSpecial Term denying the application of peti- terclaim that the plaintiff specifically pertioner for permission to change its corporate form the contract, and accept a deed in a prename and granted said application. Minority scribed form and pay the purchase price. The stockholders objected on the grounds that the cause of action claimed is based on the ground application was not made in good faith, and that defendant could not convey a title accordthat the proposed change of name would be a ing to the contract, and was in default. Charles serious detriment to the best interests and wel- T. Adams and James L. Quackenbush, both of fare of the company. The petitioning corpora- New York City, for appellant. Abram 1. Elkus tion argued that a stockholder had no right or and Wesley S. Sawyer, both of New York City, standing to oppose a change in corporate name, for respondent. and that even if a stockholder had such standing, an objection by him, to be such a "reason

PER CURIAM. Judgment affirmed, with

costs.
able objection" as to furnish grounds for deny-
ing the application.
must be predicated on fraud

WILLARD BARTLETT, C. J., and CHASE,
or illegality. The Special Term dismissed these COLLIN, CUDDEBACK, HOGAN, CAR-
contentions and denied the application on the DOZO, and SEABURY, JJ., concur.
merits. The Appellate Division reversed this de-
termination and sustained the second of the con JOHNSON, Respondent, v. CITY OF NEW
tentions mentioned, holding, in substance, that YORK, Appellant. (Court of Appeals of New
since the objecting stockholders had shown nei- York. June 13, 1916.) Appeal from an or-
ther "fraud" nor illegality" in connection with der of the Appellate Division of the Supreme
the proposed change of name, the application Court in the Second Judicial Department (165
should be granted. Frederick T. Kelsey, of App. Div. 697, 151 N. Y. Supp. 363), entered
New York City, for appellants. Edward F. January 15, 1915, reversing a judgment in fa-
Clark and Roger Hinds, both of New York City, vor of defendant entered upon a dismissal of
for respondent.

the complaint by the court at a Trial Term PER CURIAM. Order affirmed, with costs. and granting a new trial in an action to re

cover for the death of plaintiff's intestate alWILLARD BARTLETT, C. J., and HIS-leged to have been occasioned through the negCOCK, CHASE, CUDDEBACK HOGAN, ligence of defendant, his employer. The intesCARDOZO, and ÞOUND, JJ., concur.

tate was, and for some years had been, employed by the city in its bridge department as a painter and rigger. At the time of the

accident, in the course of his duty, he was HUNSBERGER et al., Respondents, v. upon one of a pair of spars suspended by a GUARANTY TRUST Co. OF NEW YORK, block and fall under the structure of the BrookAppellant. (Court of Appeals of New York. lyn Bridge over Main street. These spars conJuly 11, 1916.). Appeal from an order of the stituted the framework of a scaffold which had Appellate Division of the Supreme Court in the been completed by laying loose boards across First Judicial Department (161 App. Div. 740, the spars to make a footing for the painters. 150 N. Y. Supp. 190), entered December 10, The work of applying the paint to that par1914, reversing a judgment in favor of defendant ticular portion of the bridge structure was entered upon a dismissal of the complaint by the finished, all the planks except one had been recourt at à Trial Term in an action by the ad-moved and plaintiff was seated astraddle of the ministrators of the holder of one of the first spar using the one plank left to steady himself mortgage collateral trust bonds of the Interstate while he removed certain center lines, called Land & Building Co-operative Association to belly lines. The fastening of the supporting recover damages from the defendant as successor rope attaching one end of the spar upon which trustee under the collateral trust agreement, the intestate was seated to the hook in the securing said bonds, because of the alleged gross block was defective and gave way and the spar negligence of its predecessor trustee, the Stand- fell at that end, precipitating the intestate to ard Trust Company of New York, in permitting the pavement of the street and causing inthe substitution of certain new collateral secur- juries from which he died. The principal quesity under said trust agreement in place of the tions are: (a) Whether the spars, block and collateral then held by the trustee thereunder. fall, and plank which the intestate was using J. Howland Auchincloss and Charles H. Rus- as a support at defendant's instance while he sell, both of New York City, for appellant. untied the belly lines, constituted a scaffold James H. Hickey, of New York City, for re- (or other mechanical contrivance") within spondents.

the meaning of section 18 of the Labor Law PER CURIAM. Order affirmed, and judg- (Consol. Laws, c. 31); and (b) whether this ment absolute ordered against appellant on the work of untying the belly lines preparatory to stipulation, with costs in all courts, on opinion lowering and removing the spars constituted of Dowling, J., below.

"labor* * * of any kind in the *

painting" of the bridge structure within the WILLARD BARTLETT, C. J., and CHASE, meaning of the same provision. Lamar Hardy, COLLIN, CUDDEBACK HOGAN, CAR- Corp. Counsel, of New York City (Edward A. DOZO, and SEABURY, JJ., concur.

Freshman and Thomas F. Magner, both of

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J. P. DUFFY, CO., Respondent, v. STAPLETON NAT. BANK, Appellant, et al. (Court of Appeals of New York. June 16, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (157 N. Y. Supp. 1130), entered April 3, 1916, affirming a judgment of Special Term in an action to foreclose a mechanic's lien. The motion was made upon the ground that there are no exceptions in the case which survive the unanimous affirmance by the Appellate Division. Jeremiah J. Coughlan, of New York City, for the motion. Frank M. Avery, of New York City, opposed.

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

JULIANO v. SCHETTINO et al. (Court of Appeals of New York. June 13, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (157 N. Y. Supp. 1130), entered February 19, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to set aside a deed of real property. The motion was made upon the grounds that the judgment of the Special Term was interlocutory, that the affirmance of the same by the Appellate Division was unanimous, and that permission to appeal had not been obtained. William H. E. Jay, Jr., of Brooklyn, for the motion. James S. Darcy, of New York City, opposed.

PER CURIAM. Motion denied, without CostS.

KALKBRENNER, Respondent, v. MECHANICS' BANK, BROOKLYN, Appellant. (Court of Appeals of New York. May 30, 1916.) Motion to ,dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (157 N. Y. Supp. 1130), entered March 2, 1916, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term after a special verdict in an action to recover a balance alleged to be on deposit in defendants' bank. The motion was made upon the grounds that the Appellate Division had unanimously decided that the verdict of the jury was supported by the evidence; that the exceptions were frivolous and that no appeal lay to the Court of Appeals. Nicholas Dietz, of Brooklyn,

for the motion. F. M. Tomlin, of Brooklyn, opposed.

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

KEITH, Respondent, v. PAYNE, Appellant. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (155 N. Y. Supp. 1116), entered October 7, 1915, 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’s testator, in that he negligently maintained near the residence of the plaintiff in the village of Westport, Essex county, electric wires and apparatus which were dangerous in being too near the ground, in that the insulation was defective and that the wires were not guarded in a careful and reasonable manner, and that the plaintiff, while lawfully on the land near said wires, came in contact therewith and was injured. The defendant admitted the ownership of the wires, but denied every other allegation, and alleged contributory negligence. Edward T. Stokes, of Pt. Henry, for appellant. Owen D. Connolly, H. P. Humphrey, and Frederick E. Bowen, all of Troy, for respondent.

PER CURIAM. Judgment affirmed, with COStS.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, SEABURY, and POUND, J.J., concur.

KELLY, Respondent, v. BAKER, SMITH & CO., Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (165 App. Div. 912, 150 N. Y. Supp. 1091), entered December 2, 1914, affirming a judgment in favor of plaintiff entered upon a verdict. The action was brought to recover damages from the defendant for negligently causing the death of plaintiff's husband, in the Grand Céntral Palace, in the city of New York. The building was in the course of construction. The defendant was a sub or plumbing contractor, and at the time of the accident was putting in a line of 6-inch pipe at the side of the said premises. Plaintiff's intestate had been engaged as a laborer upon the morning of the accident by the foreman of laborers, to begin work at 1 o'clock, or after the noon lunch, and for that purpose entered the building a little before noon, and while waiting for the laborers to begin work at 1 o'clock he took a seat near the scaffold upon which employés of the defendant were working, and was struck by the collapse of this scaffold in such a manner that the planks slid upon him, or a crosspiece struck him, and he received the injuries from which he died. Edward P. Mowton, of New York City, for appellant. Edwin S. Merrill, of New York City, for respondent.

PER CURIAM. COStS.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and SEABURY, J.J., concur.

Judgment affirmed, with

LEVY v. ALLISON et al. (Court of Appeals of New York. May 30, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (169 App. Div. 936, 154 N. Y. Supp. 1130), entered December, 1915, affirming a judgment in favor of defendants entered upon a decision of the court at a Trial Term without a jury in an action to set aside an agreement on the ground of false representations. The motion was made upon the grounds that the decision of the Appellate Divi

sion was unanimous, that no questions of law himself threw up his hand and caught it upon were presented, that the exceptions were friv- one of the iron spear-shaped pickets of the olous, and the appeal taken only for purposes gate. His hand struck heavily upon the pickof delay. Edward H. Green, of New York City, et and was impaled there, but with his weight for the motion. Henry B. Twombly, of New and struggling he tore his hand loose, and York City, opposed.

badly lacerated and injured it. Warren J. PER CURIAM. Motion granted, and appeal Cheney and Frank H. Hausner, both of Corndismissed, with costs, and 10 costs of motion. ing, for anpellant. Monroe Wheeler, of Buffalo,

for respondent. LOW, Respondent, y. NEW YORK CENT.

PER CURIAM. Judgment affirmed,

with

costs, & H. R. R. CO., Appellant. (Court of Appeals of New York. May 23, 1916.) Appeal from a WILLARD BARTLETT, C. J., and HISjudgment of the Appellate Division of the Su-COCK, COLLIN, CUDDEBACK, HOGAN, preme Court in the Third Judicial Department SEABURY, and POUND, JJ., concur. (163 App. Div. 926, 147 N. Y. Supp. 1123), entered May 12, 1914, affirming a judgment in MATHESON V. MENTE et al. (Court of favor of plaintiff entered upon a verdict in an Appeals of New York. May 23, 1916.) Apaction to recover for damages to plaintiff's peal from a judgment of the Appellate Division lands alleged to have been caused by fires neg- of the Supreme Court in the Second Judicial ligently set by defendant on its right of way. Department (163 App. Div. 912, 147 N. Y. McClary & Allen, of Malone, for appellant. Supp. 1126), entered June 5, 1914, modifying, Frank L. Bell, of Glens Falls, and Edgar T. and affirming as modified, a judgment in favor Brackett, of Saratoga Springs,' for respondent. of plaintiff entered upon a decision of the court

PER CURIAM. Judgment affirmed, with on trial at Special Term in an action to forecosts.

close a mortgage made by one Ottilie Mente to WILLARD BARTLETT, C. J., and CHASE. the “Estate of Richard J. Stainton,” deceased, COLLIN, CUDDEBACK, ' CARDOZO, SEA: purporting to secure the payment' of $17,500 BURY, and POUND, JJ., concur.

and interest, bearing date December 7, 1909, and_recorded in Kings county register's office

on December 14, 1909. The complaint pleads McDONOUGH, Appellant, v. INTERBOR- the said mortgage as security for a bond to OUGH RAPID TRANSIT CO., Respondent. one George F. Stainton as executor of said (Court of Appeals of New York. May 30, estate in like sum executed simultaneously 1916.) Appeal from a judgment of the Appellate therewith. The action was originally brought Division of the Supreme Court in the First by said George F. Stainton as executor of the Judicial Department (155 App. Div. 933, 140 estate of Richard J. Stainton, deceased, claimN. Y. Supp: 1129), entered October 24, 1913, ing ownership of said bond and mortgage from affirming a judgment in favor of defendant en-said Ottilie Mente. The present plaintiff is a tered upon a dismissal of the complaint by the substituted trustee, who claims the full princicourt at a Trial Term in an action to recover pal sum and interest from the date of the for the death of plaintiff's intestate, alleged to mortgage. The defendants the Title Insurance have been occasioned through the negligence of Company of New York and Brooklyn Trust defendant. The complaint alleged that the Company, as trustee, etc., interposed an answer death of the said Bernard McDonough, deceas-denying that there was any sum due upon said ed, was the result of injuries sustained by him mortgage, and after other denials as to the said on or about the 11th day of August, 1910, by mortgage alleged that the debt was fully paid being run over by one of said defendant's north- and the mortgage had been duly satisfied of recbound trains'upon said northbound track of de-ord on February 21, 1910. James R. Deering, fendant's subway on Broadway at said 137th of New York City, for appellants. Thomas street station, having fallen from the easterly O'Callaghan, of New York City, for respondplatform thereof because of the carelessness and ent. negligence of the above-named defendant and

PER CURIAM. Judgment affirmed, with its agents, employés and servants in failing to

costs. protect said Bernard McDonough, deceased, he being then under their care and control, having

WILLARD BARTLETT, C. J.,

and CHASE, been taken from one of said defendant's north-COLLIN, CUDDEBACK, CARDOZO, SEA bound trains, upon which he was a passenger,

he was a passenger, BURY, and POUND, JJ.concur. by the said defendant's employés while in a partly comatose condition and while unable to

MATHESON V. MENTE et al. (Court of care for _himself,” Cornelius J. Earley and Appeals of New York. June 13, 1916.). Peter J. Brancato, both of New York City, for

PER CURIAM. Motion for reargument deappellant. Lemuel E. Quigg and James L. nied, with $10 costs. See 218 N. Y. - 113 Quackenbush, both of New York City, for re-N. E. 1060. spondent.

PER CURIAM. Judgment affirmed, with costs.

MAYTHAM, Appellant, v. DUNCAN et al., WILLARD BARTLETT. C. J., and HIS- May 30, 1916.) Appeal from a judgment of the

Respondents. (Court of Appeals of New York. COCK, COLLIN, CUDDEBACK, HOGAN, Appellate Division of the Supreme Court in SEABURY, and POUND, JJ., concur.

the Fourth Judicial Department (163 App. Div.

931, 147 N. Y. Supp. 1127), entered May 19, MCMAHON, Respondent, v. MALTBY, Ap- 1914, affirming a judgment in favor of defendpellant. (Court of Appeals of New York. May ants entered upon the report of a referee dis30, 1916.) Appeal from a judgment of the Ap- missing the claim of the plaintiff, based upon pellate Division of the Supreme Court in the an alleged oral agreement, against the estate Fourth Judicial Department (162 App. Div. of John Kelderhouse, deceased. It appeared 932, 147 N. Y. Supp. 1124), entered April 13, that one Benjamin L. Cowles was a shipbuild1914, affirming a judgment in favor of plaintiff er in the city of Buffalo and that he had in entered upon a verdict in an action to recover his possession an engine, boiler, and other mafor personal injuries alleged to have been sus- terial for the building of a tug, but had no tained by plaintiff through the maintenance by money to put the articles together and comdefendant of a nuisance in permitting an iron plete it. Niaytham, the plaintiff in the case at gate to stand open so as to obstruct the side-bar, became acquainted with this state of facts walk in front of his premises. Plaintiff while and saw Cowles in regard to the matter; passing along the street, in order to avoid the Cowles stating to Maytham that he would build gate, turned, and when about opposite the gate, a tug if Maytham could get some money to put slipped and fell, and in endeavoring to save the articles together and complete it. Plaintiff

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