Volume 195 — New York Reports

Also, appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 11, 1908, which affirmed an order of Special Term sustaining writs of habeas corpus and certiorari to inquire into the legality of the detention of the relator on a charge of forgery and directing his discharge from custody.

<p>The facts, so far as material, are stated in the opinion.</p>

The action was brought for the construction of the will of one Mahlon Sands and for a settlement of the accounts of the plaintiff as trustee thereunder, and especially requires consideration of a provision in the codicil hereafter quoted. The testator left him surviving a widow and four children, one of the latter being by a former wife. His widow died before the youngest child became of age, the latter event being a matter of importance herein.

The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in granting the motion made by plaintiffs’ attorney for a judgment upon the pleadings against the objection of defendant, and the requests of defendant to be allowed to go to the jury and offer proof on all the counts in the answer and all the issues raised in the case.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 22, 1908, reversing a judgment in favor of plaintiff entered upon the report of a referee and granting a new trial.</p> <p>This action was brought to recover the damages alleged to have been sustained by the plaintiff on account of injuries inflicted by the defendant on its steam pipe line under the following circumstances, as found in substance by the referee before whom the action was tried :</p> <p>Both parties are domestic corporations, the plaintiff furnishing steam for heating and power purposes through pipes, many miles in length, laid in the streets of the city of New York, and the defendant being engaged in the business of constructing foundations and retaining walls in that city. Since 1891 the plaintiff, under a franchise duly granted by lawful authority, has maintained in various public streets, and among others in New street, an iron pipe eight inches in diameter for the purpose of supplying steam to its customers, including the city. Said.pipe is made of steel, in lengths of twenty feet, with a joint in every hundred feet, so constructed as to neutralize the effect of contraction and expansion caused by changes in temperature. On either side of the pipe and four inches distant therefrom is a vertical eight-inch brick wall extending one foot below and six inches above the pipe. Spanning the brick walls are wooden covers about three niches thick, with tar paper on top, and beneath the brick walls there are two inches of concrete. Between the brick walls and surrounding the pipe up to the wooden covers there is placed a. material known as mineral wool to prevent the radiation of heat, which would cause waste and result in injury to other structures in the street. The pipe is anchored and the expansion joints fastened to the brick walls. Under each expansion joint and each anchorage point is a brick pier, and at every length of pipe another, supporting a roller upon which the pipe rolls as it expands and contracts. These piers are about fifteen inches square and a foot and a half deep, not carried down to rock, but resting on the earth. The lowest point to which any part of the structure extends, piers included, is about ten feet below the surface, and down to that point the soil of the street is fairly compact, but there was no evidence as to its character at a greater depth.</p> <p>In addition to this structure of the plaintiff, which was built under the supervision of the proper officers of the city, there was also located beneath the surface of the street a sewer, a Croton water main, a gas main and a conduit to carry electric wires.</p> <p>In March, 1905, the defendant was employed by the Commercial Cable Company to build a vault beneath the sidewalk in the street in front of its premises, known as Nos. 24 to 28 New street, upon which it was erecting a building. The vault, walls included, was eighty feet long, eight and one-half feet wide, and eighteen or twenty feet deep. The outer wall was on the curb line, and, in preparing for the work, the defendant drove sheet-piling, consisting of planks four inches thick, just outside of the curb line to the same depth as the vault, “ or deeper,” but how near to the plaintiff’s pipe does not appear. When the defendant began to drive the piling it was notified by the plaintiff that the result would injure its steam pipe structure and that it would hold the defendant liable for all damages ensuing.</p> <p>The fee of New street is in the city of New York, which has an ordinance forbidding any vault “ to be made which shall extend further than the line of the sidewalk or curbstone of any street.” The Commercial Cable Company had a permit, granted pursuant to law by the commissioner of public works, for which it paid the usual sum of $2.00 per square foot involved, to construct the vault in front of its premises, but “ in no case to extend it beyond the line of the curbstone or sidewalk.” The permit was subject to revocation at anytime by the commissioner, “ when in his judgment the space occupied by the said vault or any portion thereof may be required for any public improvement, or upon any violation of any of the terms or conditions thereof.”</p> <p>The referee further found as follows: “Fifteenth. The driving and maintaining of said piling by the defendant and its operations in and about said premises caused the street in places to settle, causing the said pipe of the plaintiff to bend, break and leak, and making it necessary that the same and the construction around it should be removed, and that ninety-two feet of new pipe (including one expansion joint and one service box) and the necessary construction around it should be laid, and that the same should be brought to the original level of the plaintiff’s pipe, in the course of which work (which was done as soon as the condition of the street permitted) it was necessary for the plaintiff to open the street and replace the soil, and in and about said work the plaintiff necessarily expended the sum of eight hundred and seventy-six and 83/100 dollars for labor and materials, by which the plaintiff was damaged in the sum of seven hundred and twenty-five dollars, no part of which has been paid by the defendant to the plaintiff, though duly demanded.”</p> <p>“ Nineteenth. The defendant was not guilty of any negligence in the construction of said foundation or of said vaults; or in the making or guarding of said excavations; or in the driving or maintaining of said sheet-piling ; or in the holding up or supporting of the soil of New street lying outside the curb ; or in any work or methods of work used by it for the purpose of or in connection with any of said details.”</p> <p>The referee found as a conclusion of law that the vault permit was valid and authorized the cable company and the defendant as its agent to make the excavation, drive and maintain the sheet-piling and construct the vault “ as was done for it by defendant,” but he directed judgment in favor of the plaintiff for the sum of $725 damages. Upon appeal to the Appellate Division the judgment was reversed by a vote of three to two upon the ground, among others, that there could be no recovery without proof of negligence. The plaintiff appealed to the Court of Appeals and its appeal is presented on the judgment roll, exceptions to the findings, etc., but without the evidence.</p> <p>Vault permits are mere revocable licenses, are obtained for purely private purposes, and must yield to the public necessity or advantage. (Patten v. N. Y. El. R. R. Co., 3 Abb. [N. C.] 306; Coster v. Peters, 5 Robt. 192; Kingsland v. Mayor etc., 45 Hun, 198; City of New York v. U. S. T. Co., 116 App. Div. 349; March v. City of New York, 69 App. Div. 1; Deshong v. City of New York, 176 N. Y. 475; L. S. D. Co. v. City of New York, 96 App. Div. 624; Parish v. Baird, 160 N. Y. 302; Jorgensen v. Squires, 144 N. Y. 280.) The defendant was liable under the general principles of the common law. (Vil. of Haverstraw v. Eckerson, 192 N. Y. 54; 124 App. Div. 18; Riley v. C. R. J. Co., 110 App. Div. 787; Farrand v. Marshall, 21 Barb. 409; Dalton v. Angus, L. R. [6 App. Cas.] 740; Booth v. R., W. & O. T. R. R. Co., 140 N. Y. 267; Wilms v. Jess, 94 Ill. 464; Busby v. Holthams, 46 Mo. 161; O'Neil v. Harkins, 8 Bush [Ky.], 650.) Section 22 of the Building Code applies. (Marsh y. City of New York, 69 App. Div. 1; Sadlier v. City of New York, 185 N. Y. 408; Parish v. Baird, 160 N. Y. 302; Jencks v. Kenny, 28 Abb. [N. C.] 154; Dorrity v. Rapp, 72 N. Y. 307; Bernheimer v. Kilpatrick, 53 Hun, 316; M. R. Co. v. Mayor, etc., 89 Hun, 429; Baxter v. N. Y. R. Co., 128 App. Div. 79.)</p> <p>The duties and liabilities of these parties were not regulated or affected by section 22 of the Building Code of the city of 27ew York. That ordinance applies solely to the mutual relations of the owners or occupants of adjacent lots of land held in private ownership. (Berry v. Todd, 15 N. Y. S. R. 371; Dorrity v. Rapp, 72 N. Y. 307; Sherwood v. Seaman, 2 Bosw. 127; Cohen v. Simmons, 66 Hun, 634; Johnson v. Oppenheim, 55 Hun, 280; Bernheimer v. Kilpatrick, 53 Hun, 316; McKenzie v. Hutton, 141 N. Y. 8; Ketcham v. Newman, 116 N. Y. 422; Jencks v. Kenny, 28 Abb. [27. C.] 154; Radcliffe v. Mayor, etc., 4 N. Y. 195.) The general common-law doctrine of lateral support affords no basis for plaintiff’s contention. (Dorrity v. Rapp, 72 N. Y. 307; Gillies v. Eckerson, 99 App. Div. 153; Bonami v. Backhouse, El. Bl. & El. 622; 9 H. L. 503; Trowbridge v. True, 52 Conn. 109; Gilmore v. Driscoll, 122 Mass. 199; Lasala v. Holbrook, 4 Paige, 168; Washburne on Real Prop. [6th ed.] § 1296; Losee v. Buchanan, 51 N. Y. 476; Dillon on Mun. Corp. [4th ed.] 3991; Radcliffe v. Mayor, etc., 4 N. Y. 195.) The doctrine that the owner of land abutting on a highway owes a duty of lateral support to such highway has no application to this case, nor does it serve to determine the mutual duties and rights of these parties. (Vil. of Haverstraw v. Eckerson, 192 N. Y. 54; 124 App. Div. 18; Finegan v. Eckerson, 32 App. Div. 233; 26 Misc. Rep. 574; Milburn v. Fowler, 27 Hun, 568; Congreve v. Smith, 18 N. Y. 79; Buckholz v. E. R. R. Co., 148 N. Y. 640; Irvine v. Wood, 51 N. Y. 224; Kearney v. L. R. Co., L. R. [6 Q. B.] 693; Birge v. Gardner, 19 Conn. 512; Gray v. B. G. L. Co., 114 Mass. 149.) Where a person, under a lawful and valid permission from the city, makes an excavation in the soil of the street, he owes no duty (apart from negligence and apart from conditions contained in his contract with the city) of supporting or shoring up a prior construction already existing in the street. Such prior constructor must have notice or knowledge of the latter constructor’s intention so to excavate ; but, having such notice or knowledge, the prior constructor must at his own expense support his construction. (Gerst v. City of St. Louis, 185 Mo. 191; Jorgensen v. Squires, 144 N. Y. 280; W. U. T. Co. v. E. L. & P. Co., 178 N. Y. 325; B. E. R. R. Co. v. City of Brooklyn, 2 App. Div. 98; I. R. T. Co. v. Gallagher, 44 Misc. Rep. 536; Parish v. Baird, 160 N. Y. 302; Matter of B. U. E. Co., 105 App. Div. 111; Matter of N. Y. E. R. R. Co., 12 N. Y. Supp. 857.)</p>

The plaintiff, as the owner of certain patents, through assignments from the patentees, brought this action to enforce compliance with, and to protect its rights under, a contract; by which it had granted to the defendant the sole and exclusive right to manufacture and to sell the patented articles. The letters patent covered a device in staple pullers and wire splicers, known to the trade as the “ Bussell Staple Puller and Wire Splicer ”.

This action was brought to recover damages for negligence resulting in personal injury, and at the opening of the case the defendant admitted “ that the collision alleged in the complaint occurred because of the negligence of the defendant’s servant or servants.” Ho motion for a nonsuit, or to dismiss the complaint, was made at the close of all the evidence, and during the charge of the court the counsel for the defendant expressly stated that no contributory negligence was…

<p>Appeal — nonsuit — contract of sale — Statute of Frauds—compliance therewith.</p> <p>On reviewing the judgment upon a nonsuit, the plaintiff is entitled to the benefit of any fact that the jury could have found from the evidence and to all inferences warranted thereby.</p> <p>Plaintiff and defendant met and settled terms of sale “ For about 1,000 tons of broken coal per month,” which agreement was confirmed by a letter from the purchaser next day, and thereafter, within less than ten days, 560 tons were delivered and paid for. Held, that the purchaser having signed a written memorandum and the seller delivered a portion of the goods, which were accepted and paid for, the contract may be enforced, since a part delivery of personal property subsequent to the sale thereof satisfies the Statute of Frauds.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 9, 1907, affirming a judgment in favor of defendant entered upon a verdict and an order denying a motion for a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The court erred in refusing to permit plaintiff to prove the nature and frequency of dust explosions. (Lofrans v. N. Y., etc., Co., 8 N. Y. Supp. 717; Latorre v. C. S. Co., 9 App. Div. 145; Connelly v. H. & G. C. Co., 192 N. Y. 182; O'Brien v. B. F. Co., 183 N. Y. 317.) The court erred in refusing to permit the plaintiff to show the defective condition of the magnetic separator. (Reich v. I. M. Co., 120 App. Div. 445; Fowler v. B. F. Co., 41 App. Div. 84; Bateman v. N. Y. C. & H. R. R. R. Co., 178 N. Y. 84.) The whole course of the trial court in refusing to permit the plaintiff to offer proof concerning the allegations of his complaint was erroneous. (Czatlos v. M. S. Ry. Co., 79 N. Y. Supp. 653; Vernon v. O'Brien, 86 App. Div. 376; Crim v. Starkweather, 32 Hun, 350; F. Nat. Bank v. N. P. Co., 119 N. Y. 662; Moore v. A. L. & T. Co., 38 N. Y. S. R. 1002.)</p>

The action was brought to recover damages for injuries caused to the respondent by falling into an elevator well on the premises of the appellant, in whose employ she was at the time. Taking that view of the evidence which is most favorable to her, we may regard the following material facts as established: Appellant was the owner and occupant of a building of several floors used for the purposes of a store.

The nature of the action and the facts, so far as. material, are stated in the opinion. The time within which plaintiff was required to file its lien only commenced to run from the date of the completion of its contract, and a filing on November 18, 1905, was within the time limited by the statute. (W. C. Co. v. Yuengling, 125 N. Y. 1-5; Chase v. James, 10 Hun, 506.) The notice of lien in every way conformed with the requirements of the statute.

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff’s intestate was not shown to be free from contributory negligence. (Albring v. N. Y. C. & H. R. R. R. Co., 46 App. Div. 460; 174 N. Y. 180; Wallace v. C. V. R. R. Co., 138 N. Y. 302; Williams v. D., L. & W. R. R. Co., reported in 144 N. Y. 158; 92 Hun, 219; 39 Hun, 430; 43 Hun, 632; 116 N. Y. 628; 39 App. Div. 647; 53 App. Div. 648; 66 App. Div. 336; 81 App.

<p>Testamentary trusts — sufficiency and construction of express trust — action upon bond of substituted trustee.</p> <p>The general rule is that words sufficient to constitute an express trust authorized by statute should be given that effect unless it would violate some statutory provision.</p> <p>A testator, after making certain other provisions, gave one-third of the residue of his property to his wife for life or so long as she should. remain his widow. At her death or marriage it was to be divided between his six children. Of the remaining two-thirds he gave one-sixth to each of his three sons. These gifts were unqualified. He gave the remaining three-sixths to his three daughters by uniform provisions. The provision for the mother of plaintiff is as follows: “ To my daughter Marie Ema Seward I also give one other equal sixth part of said remaining two-thirds, the same also to he invested by my executors for her benefit in such securities as they may elect, and the interest arising therefrom to be paid to her semi-annually, and in the event of the said Marie Ema dying without issue, then the proceeds of such share to be divided among her brothers and sisters share and share alike.” Held, that"the testator intended to create, and clothed his executors with the power and duty of executing an express trust for the benefit of his daughters, and in view of the presumption against intestacy and disherison, and of the circumstances surrounding the testator when he made his will, the necessary conclusion is that he intended to give the • remainder to the children of his daughter Marie Ema Seward if she died “with issue,” and they thus took under the will.</p> <p>Upon the death and resignation of the executors appointed by the will, the Supreme Court appointed Henry C. Seward, now deceased, trustee ‘ of said Marie Ema Seward under the last will and testament of Anthony J. Allaire, deceased.” The trustee was required to give a bond before entering upon the performance of his duties and he, together with William F. Nisbet and another, gave a bond for the faithful performance of the trust reposed in him, which ran to Marie Ema Seward and her heirs, executors, administrators or assigns. Plaintiff, one of the children of Marie Ema Seward, brought this action against the sureties on the bond. Held, that, although the bond ran to the person who was primarily interested, it also protected those who came after her and had a right under the will to call the trustee to account. It should be considered as running to the people for the benefit of all concerned in accordance with the obvious intention of the obligors. Hence, plaintiff is entitled to maintain this action.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department, entered January 23, 1909, which affirmed a judgment of the Monroe County Court sustaining a demurrer to an- indictment of the defendant for the crime of manslaughter in the second degree.</p> <p>The facts, so far as material, are stated in the opinion.</p>

The causes of action stated in the complaint arose out of the alleged wrongful conversion by the defendant of certain shares of stock and of a certain quantity of wheat, which the latter had purchased, acting as a broker, for certain customers and was carrying for them on margins of payments of a small percentage of their value.

<p>Evidence—the fact that a witness has been indicted is inadmissible to impeach or discredit him.</p> <p>An indictment is a mere accusation and raises no' presumption of guilt. The fact of a witness having been indicted is inadmissible to impeach or discredit him, and this rule applies to criminal actions, as well as to civil, and to all witnesses whether parties or not.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiff cannot recover upon a breach of the contract because he accepted the ice delivered each day and paid for it and his right to complain does not survive acceptance and payment. (Hargous v. Stone, 5 N. Y. 86; C. I. Co. v. Pope, 108 N. Y. 236; Weil v. W. E. D., 39 Misc. Rep. 529; Crane Co. v. Collins, 103 App. Div. 480; Tompkins v. Lamb, 121 App.

The facts, so far as material, are stated in the opinion. The ordinance does not contravene any provision of the Constitutions, either State or Federal. (Home Tel. Co. v. Los Angeles, 211 U. S. 205; N. Y. Const, art. 1, §§ 1, 6; U. S. Const. [14th amend.] § 1; Wright v. Hart, 103 App. Div. 218; People v. Supervisors of Orange County, 17 N. Y. 235; People v. N. Y. C. R. R. Co., 24 N. Y. 485; People ex rel. Powell v. Supervisors of Nassau, 54 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. ” The comity judge erred in directing a nonsuit and misinterpreted the doctrine laid down in the Bellinger case, and overlooked the real questions at issue that the plaintiff was at least entitled to have submitted to the jury.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered June 3, 1907, which affirmed a decree of the Columbia County Surrogate’s Court settling the accounts of the administrator herein.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>One-lialf interest in articles mentioned in section 2713, Code of Civil Procedure, were properly set off to the widow of Peter A. Hallenbecic, deceased, and were thereafter improperly allowed as assets of the estate of Peter A. Hallenbecic, deceased. (Crawford v. Nassoy, 173 N. Y. 163; Matter of Lucy, 4 Misc. Rep. 351; Tinney v. Stebens, 28 Barb. 290; Tripp v. Reilly, 15 Barb. 334; Andrew v. Betts, 8 Hun, 325; Shehan v. Mahar, 17 Hun, 130; Prentice v. Janson, 7 Hun, 86; Smith v. Smith, 10 Paige, 470; Wilcox v. Hawley, 31 N. Y. 648; Kapp v. Public Administrator, 2 Bradf. 259.)</p> <p>An undivided interest in chattels cannot be set off to the widow of the owner thereof. (Baucus v. Stover, 24 Hun, 109; Matter of Libolt, 102 App. Div. 31; Matter of Keough, 42 Misc. Rep. 401; Matter of Sprague, 41 Misc. Rep. 609; Matter of Campbell, 48 Misc. Rep. 279; Matter of Griffith, 49 Misc. Rep. 409.)</p>

The facts, so far as material, are stated in the opinion. • It was the intent of the legislature that the board of police commissioners of the city of Miagara Falls should have no power under sections 273, 274 and 275 of the Miagara Falls charter to summarily remove its chief of police, or any of its police officers, without preferring charges and without a trial and an opportunity to be heard in their defense. (Newell v. People, 7 N. Y. 97; Sedgwick on Stat.

New York, rendered upon a verdict convicting the defendant of the crime of grand larceny in the second degree. The facts, so far as material, are stated in the opinion.

the Railroad Law, to the Buffalo, Hiagara Falls and Rochester Railway Company. The Buffalo, Hiagara Falls and Rochester Railway Company was incorporated in 1900, for the purpose of building and operating an electric railway from Rochester to Lock-port, Hiagara Falls and Buffalo,- a total distance of 120 miles.

The nature of the action and the facts, so far as material, are stated in the opinion. Appellants’ notice of lien filed January 16, 1907, addressed to the Rochester Turkish Baths as owner, is prior and superior to that of the plaintiff filed January 17, 1907, addressed to James S. Pace and, Rochester Turkish Baths, owners. (Schmalz v. Mead, 125 N. Y. 188; Spruck v. McRoberts, 19 N. Y. Supp. 128; 139 N. Y. 193; Berry v. Gavin, 88 Hun, 2; Walkman v. Henry 7 Misc.

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence of the defendant’s negligence is clear and convincing. (O'Rourke v. Waite Co., 125 App. Div. 825; Bill v. N. Y. E. M. Co., 60 App. Div. 470; Schmidt v. Steinway, 55 Hun, 496; Pelzel v. Schepp, 83 App. Div. 444; Smith v. N. Y. & H. R. R. Co., 19 N. Y. 127.) The plaintiff took e\ery precaution to protect himself in the prosecution of his work. (Rich v. Pelham Co., 23 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The skid and cleat were not “ ways,” “ works ” or “ machinery ” within the Employers’ Liability Act, nor a place to work under the common law, and the court erred in submitting the case to the jury on that theory.

The plaintiff and Francis Crawford were owners of adjoining parcels of land and, on February 28tli,. 1899, entered into an agreement in writing, plaintiff being party of the first part, and Francis Crawford being party of the second part, which was duly recorded in the office of the register of the county of Hew York; in and by which it was provided that the plaintiff should forthwith construct a party wall, the center line of which should be the line between the two lots.

<p>Appeal from an order of the Appellate Division of the Supreme Court, in1 the Fourth Judicial Department, entered January 22, 1909, which affirmed an order of Special Term sustaining a writ of habeas corpus and directing the discharge of the relator from custody.</p> <p>The facts, so far as material, are stated in the opinion.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered December 13, 1907, which affirmed a judgment of the Appellate Term affirming a judgment in favor of plaintiff entered upon a decision of the Municipal Court of the city of New York. The nature of the action and the facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, arc stated in the opinion. A tax warrant without the county seal required by law is a warrant without seal and is void. (City of Rochester v. Bloss, 77 App. Div. 30; Lockwood v. Gehlert, 127 N. Y. 241; Bellinger v. Gray, 51 N. Y. 610.) The sealing of the warrant with the seal of the board of supervisors, instead of the county seal, did not invalidate the tax. (Chamberlain v. Taylor, 36 Hun, 43.)

The nature of the action and the facts so far as material are stated in the opinion. The receipt of the plaintiff constitutes no bar to a recovery for the admitted indebtedness, hence resort to a court of equity to remove it as an obstacle to such recovery was unnecessary. (Ryan v. Ward, 48 N. Y. 204; Tobey v. Barber, 5 Johns. 71; Murray v. Gouverneur, 2 Johns. 440; Buswell v. Pioneer, 37 N. Y. 312; Jones v. Rice, 19 Misc. Rep. 357; Sulyeski v. Windholz, 9 Misc.

On April 29th, 1908, a liquor tax certificate was issued to the appellant, Edward Gr. Smith, under the provisions of the Liquor Tax Law (L. 1896, ch. 112, as amended), authorizing him to conduct the business of trafficking in liquors from May 1st to September 30th, 1908, at the southwest corner of Sixteenth street and Fifth avenue, otherwise known as No. 108 Fifth avenue, in the borough of Manhattan and city of New York.

<p>The facts, so far as material, are stated in the opinion.</p>

This action was brought to recover the sum of $2,594.97, which is alleged to have become due to the assignors of the plaintiff upon a written instrument, under seal, entered into on the 21st of November, 1899, by the defendants as parties of the first part and S. Rodmund Smith and J. Ernest Smith as parties of the second part.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in directing a verdict for the plaintiff as there were questions of fact which should have been submitted to the jury for their determination. (Susman v. Whyard, 149 N. Y. 127; Jones on Chattel Mortgages, 2; Smith v. Beattie, 31 N. Y. 542; Parshall v. Eggert, 54 N. Y. 18; Hone v. Keteltas, 46 N. Y. 605; Haussknecht v. Smith, 11 App.

<p>Master and servant — when doctrine res ipsa loquitur does not apply — how far employer bound to examine structure being taken down by employee.</p> <p>Plaintiff was injured while engaged in the removal of a structure which was at times used as a floor for workmen. Its purpose, however, was the protection of dynamos from falling substances incident to the erection of a new building. After the accident a joist was found in the wreckage out of which a section had been cut almost severing it, but it did hot appear when or by whom this was done. Meld, first, that the doctrine res ipsa loquitur is not applicable since there is no presumption upon the facts proven that defendants had failed to discharge the duty of reasonable care and caution toward plaintiff. Second, that it was not the duty of defendants, before placing plaintiff at work in the removal of the structure, in the absence of any knowledge of a necessity therefor, to make an examination for the purpose of seeing whether anything had been done that would weaken the structure and it was not negligent under the circumstances to I ail to take such a precaution.</p>

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 27, 1907, affirming a judgment in favor of plaintiff entered upon a decision of the Municipal Court of the city of Hew York.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>Section 39 of the Bailroad Law, prescribing the short limitation of one year for an action to recover a penalty of fifty dollars from “ any railroad corporation which shall ask or receive more than the lawful rate of fare,” is applicable to an overcharge of fare in violation of section 104 of that law. (Bull v. N. Y. City Ry. Co., 192 N. Y. 361.) The substance of section 104 of the Bailroad Law is its limitation of the lawful rate of fare chargeable by a street surface railroad corporation under the circumstances described. The transportation of the passenger, under such circumstances, for a single fare, constitutes the essential substance of the section. The giving of a transfer ticket is merely incidental, and may be omitted, unless its refusal amounts to a denial of the substantial right of transportation for a single fare between the two points described. (People ex rel. Linton v. B. H. R. R. Co., 172 N. Y. 90.)</p> <p>The action for the penalty created by section 104 of the Bailroad Law is clearly within the three-year limitation prescribed by the Code of Civil Procedure. (Code Civ. Pro. § 383.) By section 39 of the Bailroad Law the penalty is aimed solely at the excessive fare; while by section 104 the penalty is aimed, not at the excessive rate as such, but at the refusal to issue the transfer and to carry the passenger on connecting lines thereunder, and all this is done when the transfer is refused. (L. 1857, cli. 185; L. 1886, cli. 415.) The fact that a new duty was imposed and a new penalty created for its refusal, clearly establishes the independence of the two sections, especially as to the question here certified. (People v. B. H. R. R. Co., 187 N. Y. 48; Snee v. B. H. R. R. Co., 120 App. Div. 570; Bull v. N. Y. City Ry. Co., 192 N. Y. 361; O'Connor v. B. H. R. R. Co., 123 App. Div. 784; Bonnell v. Griswold, 80 N. Y. 128.)</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered March 11, 1908, which reversed a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term, and an order denying a motion for a new trial and granted a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The complaint was properly dismissed, because there was no evidence of freedom from contributory negligence. (4 Wigmore on Ev. § 2510; Will on Cir. Ev. § 280 ; Gilman v. Deerfield, 81 Mass. 577; Brink, v. E. R. R. Co., 47 App. Div. 483; Wieland v. D. & H. C. Co., 167 N. Y. 19; Walsh v. F., J. & G. R. Co., 187 N. Y. 563; Perez v. Sandrowitz, 180 N. Y. 397; Pinder v. B. H. Ry. Co., 173 N. Y. 519; Paladino v. S. I. M. Ry. Co., 127 App. Div. 183; Belford v. B. H. R. R. Co., 86 App. Div. 388; Geleta v. B. & N. F. Ry. Co., 181 N. Y. 524; Madigan v. T. A. R. R. Co., 68 App. Div. 123.)</p> <p>The question of deceased’s contributory negligence should haye been submitted to the jury as a question of fact. (Wazenski v. N. Y. C. & H. R. R. R. Co., 180 N. Y. 466; Tolman v. S., B. & N. Y. R. R. Co., 98 N. Y. 198; Fedjowski v. D. & H. C. Co., 12 App. Div. 589; Monck v. B. H. R. R. Co., 97 App. Div. 147; 182 N. Y. 567; Pruey v. N. Y. C. & H. R. R. R. Co., 41 App. Div. 158; Beecher v. L. I. R. R. Co., 35 App. Div. 292; 161 N. Y. 222; Loder v. M. S. R. Co., 84 App. Div. 591; Lane v. B. H. R. R. Co., 85 App. Div. 85; 178 N. Y. 623; Belford v. B. H. R. R. Co., 86 App. Div. 388; Stevens v. B. H. R. R. Co., 59 App. Div. 23.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence did not warrant the submission of the case to the jury. (Perez v. Sandrowitz, 180 N. Y. 397; Johnson v. N. Y. C. & H. R. R. R. Co., 173 N. Y. 79.) The rule of res ipsa loquitur is not applicable.

The nature of the action and the facts, so far as material, are stated in the opinion. The court erred in admitting testimony of the plaintiff’s profits in the contracting and building business and in permitting the jury to consider the same in measuring the damages arising from loss of time and diminution of earning power. (Masterton v. Vil. of Mt. Vernon, 58 N. Y. 391; Johnson v. M. Ry. Co., 52 Hun, 111; Blate v. T. A. R. R. Co., 29 App.

<p>Motor vehicles — duty of persons running automobiles on public highways — action for collision — charge.</p> <p>The fundamental principle of conduct in the movement of automobiles is that of reasonable care and accommodation, measured by the immediate circumstances of each case and exercised by each traveler for the purpose of affording to the other his just and reasonable rights in the highway.</p> <p>The duty of a person running a motor car on the highway, toward one following at a more rapid pace, is to yield room enough for the latter to pass when it is needful and practicable so to do and he is thereunto requested.</p> <p>Where a collision occurred between two motor cars while defendants’ car was attempting to pass that of plaintiff, a request to charge “ that there was no legal duty on the part of the plaintiff to stop his machine so as to enable the defendant to pass,” was held to be properly refused under the circumstances.</p>

An act was passed by the legislature of the state of New York in 1893 and approved by the governor April 22, 1893, with the following title: “An act to incorporate the Economic Power and Construction Company.” It is chapter 459 of the Laws of that year, and section 1 provides that certain persons named therein, “ and their associates, successors and assigns, are hereby created a body corporate and politic by the name of the Economic Power and Construction Company and by that…

The action is in ejectment, to recover possession of the west half of the northeast. quarter of township 24, great tract I, Macomb’s purchase, in Franklin county. The subject of the action is a large tract of wild forest land, situate in that part of the Adirondack region.

The nature of the action and the facts, so far as material, are stated in the opinion. Nothing in the phraseology of the fifth clause of the contract militates against defendant appellant’s claim that plaintiff respondent failed to prove a cause of action or sustains the latter’s proposition that defendant has no defense to this action and can at most have a counterclaim. (Dunn v. Morgenthau, 73 App. Div. 147; Couch v. N. B. Assn., 109 App.

Baxter, deceased. The intention of the testator that the particular legacies provided for by him in his will should be paid in full before any payments to residuary legatees is made evident by an examination of the several clauses of his will. (Freeman v. Coit, 96 N. Y. 67; Banzar v. Banzar, 156 N. Y. 429; Gilbert v. Taylor, 76 Hun, 92; Riker v. Cornwell, 113 N. Y. 115; Matter of Miner, 146 N. Y. 121; Hulin v. Squires, 63 Hun, 359; Matter of Whiting, 33 Misc.

Cross-appeals from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March % 1909, which modified and affirmed as modified a decree of the New York County Surrogate’s Court settling the accounts of the executors herein — also motion to dismiss a portion of said cross-appeals. The facts, so far as material, are stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. It is the intendment of the law that a general verdict settles, in favor of the prevailing party, every question of fact litigated upon the trial. (Wolf v. T. G. F. Ins. Co., 43 Barb. 400; 41 N. Y. 620; People ex rel. Hanrahan v. Board of Police, 35 Barb. 644; 14 Abb.

The nature of the action and the facts, so far as material, are stated in the opinion. The reversal was upon questions of law only. (Fritz v. Tompkins, 168 N. Y. 524.) This court has no jurisdiction to hear this appeal, because the Appellate Division reversed the judgment of the trial court upon questions of fact or of both law and fact. (Hirsch v. Jones, 191 N. Y. 195.)

<p>(1) . Murder—Appeal from Judgment of Conviction—Credibility of Witnesses for Jury.</p> <p>In a capital case the Court of Appeals will review the decision by a jury only to the extent of determining whether the evidence fairly and reasonably supports their conclusion upon the questions of fact. The credibility of witnesses is for the jury and not for the court.</p> <p>(2) . Same—Evidence.</p> <p>Evidence that a defendant, charged with the crime of murder, followed the deceased and fired four shots at him from behind his back, the third of which caused his death, is sufficient to sustain a finding that the killing was done with a deliberate and premeditated design to effect death.</p> <p>(3) . Same—Employment of Counsel by District Attorney.</p> <p>Where the county judge authorized the district attorney, pursuant to the County Law, to employ counsel in a capital case, and the district attorney retained the same person who, as county judge, had authorized such employment, the transaction does not affect any legal right of defendant, but, as a matter which concerns the public, it is disapproved by the court.</p> <p>(4) . Same—Trial—Charge—Premeditation and Deliberation.</p> <p>The counsel for the prosecution requested the court to charge “ that in order to constitute murder in the first degree premeditation and deliberation need not both be present.” The court, after a colloquy with counsel, did not charge as requested and no ruling was made or exception taken. The court defined and explained deliberation and emphasized the fact that there must be premeditation as well as deliberation. Held, that the jury could not have been misled by the request made by the. prosecution, but not charged by the court, nor by the colloquy that followed; that if any thing was lacking it was the duty of counsel for the defendant to have presented a request to remove the doubt.</p> <p>(5). Samé.</p> <p>When the defendant admits the killing, and no question of justification, accident or sanity is involved, the only elements of the crime remaining to be proved are deliberation and premeditation. The court, having charged that the jury were to consider motive upon the question of deliberation and premeditation and as one of the elements in the question whether the defendant was guilty beyond a reasonable doubt, properly denied defendant’s request to charge that, if the jury failed to find a motive for the crime charged, or if there was any reasonable doubt as to the existence of a motive, the defendant could not be convicted of murder in the first degree. Motive is not an essential feature of the crime of murder either in the first or second degree, and the crime may be established without proof thereof.</p>

<p>Trial —when motion to dismiss a complaint is, in effect, a demurrer—mechanic’s lien — when plaintiff failing to establish a lien may recover personal judgment for amount due.</p> <p>A motion made at the commencement of a trial to dismiss a complaint on the ground that it does not state facts sufficient to constitute a cause of action is practically a demurrer to the complaint on that ground, and it cannot be sustained unless it appears that admitting all of the facts alleged, no cause of action whatever is stated.</p> <p>Where a plaintiff fails to establish a lien because the notice of lien does not comply with the statute, or a complaint is found insufficient because it does not allege facts sufficient to constitute a cause of action to enforce a mechanic’s lien, but the complaint contains allegations sufficient to constitute a cause of action for goods sold and delivered or labor performed, a personal judgment may be recovered as in an action on a contract. Bradley & Qurrier Go. v. Paeheteau, 175 N. Y. 493, followed. Abbott v. Easton, 133 App. Div. 374, reversed.</p>

An information filed by the district attorney of the county of Mew York charged the defendant with violating section 364 of the Penal Code, known as the Trade Mark Law. After a trial before three justices of the Court of Special Sessions he was convicted and sentenced to pay a fine of fifty dollars, and, in default of payment, to imprisonment for twenty days.

The plaintiff alleged in his complaint that between June 1st and September 10th, 1905, he performed work, labor and services for the defendant and furnished' materials to him at his request, in building a tenement house and an addition to an old house on the farm of the latter in Bedford, New York, and that said work and materials were reasonably worth the sum of $4,060.07, no part of which had been paid except the sum of $1,860.

The nature of the action and the facts, so far as material, are stated in the opinion. The rejection of plaintiff’s evidence as to damages was erroneous. (Green v. Davis, 83 App. Div. 216; Murphy v. Eidlitz, 113 App. Div. 659; Roberts v. Johnson, 58 N. Y. 613; April v. Baird, 32 App. Div. 226; Shea v. M. Ry. Co., 29 N. Y. S. R. 313; Rown v. C., etc., Co., 34 Hun, 471; Eggleston v. Scheible, 113 App. Div. 798; Ostrander v. O. C. T. Co., 125 App.

This action was brought to foreclose a mortgage, which was executed and delivered by the Brooklyn and Bockaway Beach Bailroad Company to the plaintiff, as trustee, to secure the payment of an issue of bonds. The appellant here is the defendant Schenck, who claims that the lien of a judgment recovered by him against the company is superior to that of the mortgage, as to certain land subsequently acquired by the latter.

<p>Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered March 6, 1908, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The judgment upon which the execution for plaintiff’s arrest was based did not belong to the class of cases in which a body execution was authorized to be issued. (Allen v. Becket, 84 N. Y. Supp. 1009; Code Civ. Pro. §§ 548-551, 553; Ins. Co. v. Shuler, 28 Hun, 338; Wood v. Henry, 40 N. Y. 124; Hovey v. Starr, 42 Barb. 435.) Because of the nature of the action of Allen v. Becket the defendant therein was not subject to arrest. (Code Civ. Pro. § 553; Swinfen v. Bacon, 6 H. & N. 846.)</p> <p>The court was right in dismissing the plaintiff’s complaint. (Knapp v. Murray, 20 App. Div. 83; Farley v. Hubbard, 148 N. Y. 592; Davids v. B. H. R. R. Co., 104 App. Div. 23; Catlin v. Adirondack Co., 20 Hun, 19; Parker v. Spear, 62 How. Pr. 395.) Although the defendant in the case of Allen v. Becket was a woman, she was liable to arrest for the conversion with which she was charged in the complaint. (Duncan v. Katen, 6 Hun, 1; 64 N. Y. 625; N. R. Co. v. Carpentier, 3 Abb. Pr. 259; Starr v. Kent, 2 Code Rep. 30; Anderson v. How, 116 N. Y. 336.)</p>

This action was brought to recover damages of the defendant for the false arrest and for the malicious prosecution of the plaintiff. Upon the trial it appeared by the testimony of the plaintiff, a lawyer, that he was intending to return from Coney Island upon one of the defendant’s trains. The train had already started from the station and was proceeding slowly, at about the speed of a person walking.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered April 24, 1908, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial.</p> <p>The nature of the action and the facts, so far as material, are stated in the opinion.</p> <p>The car upon which plaintiff was working was not a “ structure” within the meaning of the Labor Law. (State v. Walsh, 43 Minn. 444; Gundling v. Chicago, 176 Ill. 340; Nichols v. State, 127 Ind. 406; Chegaray v. Mayor, etc., 13 N. Y. 220; People ex rel. Satterlee v. Bd. of Police, 75 N. Y. 38; Wakefield v. Fargo, 90 N. Y. 312; Bristor v. Smith, 158 N. Y. 157; Matter of Stryker, 158 N. Y. 526; M. Co. v. P. R. R. Co., 114 Penn. St. 484; Robinson v. M. S. Ry. Co., 103 App. Div. 243.) The staging upon which plaintiff was working was not a “scaffolding” within the meaning of the Labor Law. (Schapp v. Bloomer, 181 N. Y. 127; Sutherland v. Ammon, 112 App. Div. 332; Stokes v. Ins. Co., 118 App. Div. 77; Williams v. First Nat. Bank, 118 App. Div. 555; Hutton v. H. Co., 139 Fed. Rep. 734; Welk v. Jacobson, 98 App. Div. 247.)</p> <p>The car upon which the plaintiff was working was a “ structure” within the meaning of the Labor Law. (Butler v. Townsend, 126 App. Div, 105; Kimmer v. Weber, 151 N. Y. 417; Chaffee v. E. R. R. Co., 68 App. Div. 578; Wingert v. Krakauer, 76 App. Div. 34; Stewart v. Ferguson, 34 App. Div. 515; 44 App. Div. 58; 52 App. Div. 317; 164 N. Y. 553; Kuss v. Freid, 32 Misc. Rep. 628; Walters v. Fuller Co., 74 App. Div. 388; Tracey v. Williams, 111 N. Y. Supp. 114; Sivensen v. Jenks, 92 N. Y. Supp. 382; Holloway v. McWilliams, 89 N. Y. Supp. 1074.) The place where plaintiff was working was a “ scaffolding” within the meaning of the Labor Law. (Sutherland v. Ammann, 112 App. Div. 332; Stokes v. N. Y. L. Ins. Co., 118 App. Div. 77; Williams v. F. Nat. Bank, 118 App. Div. 555; Swenson v. W. B. Mfg. Co., 92 N. Y. Supp. 64; McLaughlin v. Eidlitz, 64 N. Y. Supp. 193; Chiavarcole v. (U. B. & P. Co., 115 A. Y. Supp. 327; Anderson v. M. Bros., 108 N. Y. Supp. 61; Tracy v. Williams, 111 N. Y. Supp. 114; Warren v. Post, 112 N. Y. Supp. 960; Croce v. Buckley, 100 N. Y. Supp. 898.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The burden was upon the plaintiff to show that the judgment in the former action was awarded against him for some reason or other than his own negligence, and the evidence is entirely insufficient to establish that fact. (O. S. N. Co. v. Co. Tr.

The controversy between the parties hereto arises over a contention on the part of the defendant that the plaintiff is precluded by a contract which it has heretofore entered into with the city of Rochester from raising its rates for telephone service to the inhabitants of said city. The facts, so far as material, are stated in the opinion.

<p>Trust — deposit in savings bank in trust for another — when declarations of depositor inadmissible as against person for whose benefit deposit is alleged to have been made.</p> <p>Where the issue litigated is whether a tentative trust in favor of the plaintiff, evidenced by the deposit of money in a savings bank by the defendant’s testator as trustee for the plaintiff had become irrevocable by the death of the depositor without revoking the trust, it is error to admit evidence of declarations made by the depositor, after the money had been placed in the savings bank, to the effect that the reason he had opened the account in trust for the plaintiff was that he already had as much money in the bank as he was permitted to have in his own name, and that he adopted this course in order not to lose his interest. (Kelly v. Home Savings Bank, 103 App. Div. 141, followed.)</p>

The nature of the action and the facts, sp far as material, are stated in the opinion. The Supreme Court of this state has jurisdiction over suits involving the construction of trust provisions in a will. (Bailey v. Briggs, 56 FT. Y. 407 ; Anderson v. Anderson,, 112 FT. Y. 104; Bead v. Williams, 125 FT.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 25, 1907, affirming a judgment in favor of defendants entered upon the report of a referee.</p> <p>The appellant instituted condemnation proceedings under a statute hereinafter to be referred to for the purpose of acquiring title to the premises involved in this proceeding for use as a public park. By its petition, amongst other things, it alleged that it was the owner in fee of the premises in question and that the respondent Henson had certain easements. The latter by his answer not only denied the usual allegations of facts essential to enable the appellant to maintain condemnation proceedings, but also alleged that he was the owner in fee of said premises. All of the issues thus raised were by consent of the parties referred to a -referee for hearing and determination and he found in favor of the appellant on all thereof except that of title to the premises which he decided in favor of the respondent, and the only questions presented for our decision are those springing out oí that particular determination.</p> <p>Some of the important facts which are involved .in the dispute of title are as follows :</p> <p>The premises in question are situate on the west shore of Seneca lake at what is known as Geneva harbor. They are included within the boundaries of the lands and territory ceded by the state of Hew York to the commonwealth of Massachusetts in accordance with the historical and well-.' known agreement of commissioners reached at Hartford in 1786 for the purpose of settling territorial disputes between the two states. Subsequently, Massachusetts granted and conveyed lands and territory which included the same to private individuals, and thereafter a series of conveyances were executed whereby, as claimed by respondent, there was passed to him the title to and ownership of said premises, he claiming to be in possession thereof at the time of the commencement of this proceeding. At the time of the execution of the treaty between Massachusetts and Hew York, and for a long time thereafter, a considerable portion of the premises of which condemnation is sought lay under the waters of Seneca lake, but various grantees and owners of the adjacent uplands under said conveyances filled in in front of their lands, so that prior to the conveyance to respondent in 1889 such uplands had been by a very substantial distance extended over the space formerly covered by the waters of the lake. In 1900 the state built a bulkhead and constructed a towpath for-purposes of navigation some little distance out from what was then the actual shore line of the lake, and the former has now become the practical shore line, and is the outer boundary of the premises sought to be condemned. Thereafter some filling in of his premises towards said bulkhead was done by respondent, and other property owners did the same thing. After such filling in, however, a considerable space of an unsightly and unhealthy character was left between said bulkhead and the former uplands, and in 1905, by chapter 665 of the Laws of that,year, the state of Hew York granted to the city of Geneva all the interest of the state in said premises and authorized it to institute condemnation proceedings under the Code of Civil Procedure for the purpose of acquii’ing said and other premises for the purposes of a public park. Seneca lake is an inland lake 34 68/100ths miles in length by 3 46/100ths miles at its greatest width, and having a surface area of 61 3/4ths square miles. With one exception it is the largest lake wholly within the territorial limits of the state of Hew York, and is navigable in fact and has at all times been used as a navigable highway since there was any ' occasion for such navigation.</p> <p>The referee made extensive findings of fact upon the subject of the title to the premises in question, to some of which reference will be made in the following opinion.</p> <p>Seneca lake is a navigable body of water and as such the title to its bed was vested in the people of the state of New York at the time of the conveyance to the city of Geneva. (Langdon v. Mayor, etc., 93 N. Y. 129; K. I. Co. v. Schultz, 116 N. Y. 382; People v. Tibbets, 19 N. Y. 523; People v. Canal Appraisers, 33 N. Y. 461; Sage v. Mayor, etc., 154 N. Y. 61; Seneca Nation v. Christie, 126 N. Y. 122.) No part of the bed of a navigable body of water will be deemed to have been conveyed by a grant from the sovereign unless express terms are used referring to it as such in the grant. (Gould on Waters [3d ed.], § 36; Inhabitants of East Haven v. Hemingway, 7 Conn. 186; Town of Middletown v. Sage, 8. Conn. 221; Church v. Meeker, 34 Conn. 421; Commonwealth v. City of Roxbury, 75 Mass. 451; Canal Comrs. v. People, 5 Wend. 423, 451; State v. P. G. Co., 22 S. C. 50; Rosborough v. Picton, 12 Tex. Civ. App. 113; Sage v. Mayor, etc., 154 N. Y. 61; Matter of Mayor, etc., 182 N. Y. 361.) The lands under the waters of Seneca lake were not conveyed by the state of New York to the state of Massachusetts by the treaty of Hartford. (Morris v. United States, 174 U. S. 196; Trustees of East Hampton v. Vail, 151 N. Y. 463; De Lancey v. Piepgras, 138 N. Y. 26; People v. B. R. R. Co., 126 N. Y. 29; Woodworth v. Janes, 2 Johns. Cas. 417; Whitaker v. Cone, 2 Johns. Cas. 58; Burbank v. Fay, 65 N. Y. 57; Livingston v. Ten Broeck, 16 Johns. 14; Jackson v. Wood, 13 Johns. 346; Adams v. Frothingham, 3 Mass. 360; Codman v. Winslow, 10 Mass. 149; Attorney-General v. Parker, 3 Atk. 576.) Assuming, for the purpose of argument, that the bed of Seneca lake was conveyed to the state of Massachusetts, the defendant Henson has not succeeded to the title of that state. (Child v. Starr, 4 Hill, 369; Starr v. Child, 5 Den. 599; Halsey v. McCormick, 13 N. Y. 296; Gouverneur v. Nat. Ice Co., 134 N. Y. 355.) The defendant Henson has not acquired title to the lands involved in this proceeding by adverse possession. (Beach v. Mayor, etc., 45 How. Pr. 357, 368; Corning v. T. I. & N. Factory, 34 Barb. 529; McFarlane v. Kerr, 23 N. Y. Super. Ct. 249; Wheeler v. Spinola, 54 N. Y. 377; De Lancey v. Piepgras, 138 N. Y. 26, 46; Code Civ. Pro. § 362; G. V. C. R. R. Co. v. Slaight, 49 Hun, 35, 39; People v. Arnold, 4 N. Y. 508; Van Buskirk v. Warren, 2 Keyes, 119; Jackson v. Bodle, 20 Johns. 182; Church v. Gilmam, 15 Wend. 656.) Assuming that the defendant Henson is the owner in fee of the lands involved in this proceeding, the plaintiff is entitled to acquire such title in this proceeding and the referee erred in directing that the petition be dismissed. (Scheer v. L. I. R. R. Co., 127 App. Div. 267.)</p> <p>The state since its organization has been the owner of the bed of the lake and could lawfully grant a portion of the same to the city of Geneva for a public purpose. (I. C. R. R. Co. v. Illinois, 146 U. S. 387; Shively v. Bowlby, 152 U. S. 1; Coxe v. State, 144 N. Y. 386; Langdon v. Mayor, etc., 93 N. Y. 129; K. I. Co. v. Schultz, 116 N. Y. 382; People v. Tibbets, 19 N. Y. 523; People v. Canal Appraisers, 33 N. Y. 461; Sage v. Mayor, etc., 154 N. Y. 61; Seneca Nation v. Christie, 126 N. Y. 122.) The state of New York did not, by the treaty or deed of cession to Massachusetts, convey any of the navigable waters within the boundaries of the state. (Gould on Waters [3d ed.], § 36; Inhabitants of East Haven v. Heminway, 7 Conn. 186; Town of Middletown v. Sage, 8 Conn. 221; Church v. Meeker, 34 Conn. 421; Commonwealth v. City of Roxbury, 75 Mass. 451; Canal Comrs. v. People, 5 Wend. 423; State v. P. G. Co., 22 S. C. 50; Rosborough v. Picton, 12 Tex. Civ. App. 113; Sage v. Mayor, etc., 154 N. Y. 61; Matter of Mayor, etc., 182 N. Y. 361; Trustees v. Strong, 60 N. Y. 56; Trustees v. Smith, 118 N. Y. 641.) The grantees of the state of Massachusetts, from whom the defendant claims title, did not acquire any title to the bed of Seneca lake. (Child v. Starr, 4 Hill, 369; Starr v. Child, 5 Den. 599; Halsey v. McCormick, 13 N. Y. 296; Gouverneur v. Nat. Ice Co., 134 N. Y. 355.)</p> <p>The state of Hew York at' no time had undisputed title to the land in question, and since the mutual treaty of cession in 1786, with Massachusetts, has had no title whatsoever in the soil. (Howard v. Moot, 64 N. Y. 262; Smith v. City of Rochester, 92 N. Y. 463.) As an upland owner, defendant Henson was entitled to the natural accretion to his land, and this right cannot be arbitrarily severed from the realty. (Gould v. H. R. R. R. Co., 6 N. Y. 552; Steers v. City of Brooklyn, 101 N. Y. 51; Langdon v. Mayor, etc., 93 N. Y. 129.) In the event of its being determined that Henson is the owner of the premises, there was no error in the referee’s finding that the defendants are entitled to judgment, dismissing the proceedings, with costs. (Code Civ. Pro. § 3369.)</p>

<p>Appeal — order of Appellate Division granting a new hearing in a special proceeding not appealable as of right to Court of Appeals.</p> <p>The orders granting new trials on exceptions, of which a review is permitted by this court, where the appellants stipulate for judgment absolute in the event of affirmance, are only such as grant new trials in actions, and do not include orders granting new hearings in special proceedings.</p> <p>The right to review an order which reverses a judgment in an action and grants a new trial does not extend to an order reversing a decree of a Surrogate’s Court and directing a new hearing. Matter of Whitney, 153 N. Y. 259, distinguished.</p>

Prior to December 27th, 1902, one G. Adolph Manz made application in writing to the board of trustees of the plaintiff, the Village of Phcenix, for permission to construct a street surface railroad in the streets of the village.

<p>Negligence — liability of manufacturer for negligent construction of appliance inherently dangerous in character — incompetent evidence as to effect of injuries.</p> <p>In the case of an article of an inherently dangerous nature, a manufacturer may become liable to third parties having no contractual relation for a negligent construction which, when added to the inherent character of the appliance, makes it imminently dangerous and causes or contributes to a resulting injury not necessarily incident to the use of such an article if properly constructed, but naturally following from a defective construction.</p> <p>In an action brought to recover for injuries received through an alleged negligent act of defendant, the plaintiff was asked, “ Just state the effect that this accident had on your mind and on your nervous system ?” The witness answered, under ohjection, “Having every dollar I had on earth invested in the proposition I naturally was very anxious as to what the condition of things were and what was going on.” Motion was made to strike out the answer as irresponsive and incompetent, which was denied. Held, error. Plaintiff was president of a hotel company which had purchased from defendant the appliance which caused the injury. He was asked, “How much financial interest did you have at stake in the concern ?” and was allowed to state the amount of his investment in the business. Held, incompetent. Plaintiff was allowed to state, as an item of damages, the amount of money expended on a trip to the south after the accident for the benefit of his health. Held, incompetent.</p> <p>A letter, making statements damaging to defendant, which was written to the president of defendant by one of its officers, who, at the time of the writing, was connected in business with plaintiff, was received under defendants objection. It purported to he a personal communication by the writer, and its character was simply advisory. It was not written in connection with any duty or by virtue of any authority which rested in or had been conferred on the writer. Held, error.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered October 5,1908, which affirmed an interlocutory judgment of Special Term in an action for the construction of the will of George P. Pollen, deceased; also motions to dismiss the appeal herein. The facts, so far as material, are stated in the opinion. The judgment in Colgate v. Smith is res adjudicata'm the case at bar. (Miller v. Tex. & Pac. Ry.

The facts, so far as material, are stated in the opinion. Article 2 of chapter 909 of the Laws of Mew York of 1896, and the various acts amendatory thereof and supplemental thereto, is unconstitutional and void because contrary to the provisions of sections 1 and 4 of article 2 of the Constitution of Mew York, (Green v. Shumway, 39 N. Y. 418; State v. Conner, 22 Neb. 265; Dells v. Kennedy, 49 Wis. 555; State v. Baker, 38 Wis. 71; Daggett v. Hudson, 43 Ohio St. 548; Page v.…

<p>Condemnation proceedings—effect of accepting award of appraisers — interest.</p> <p>A property owner runs no risk in accepting an award in condemnation proceedings, after confirmation, since it does not affect his right to appeal and the granting of a new appraisal does not change either the title to the land which has been acquired by the condemning party nor the title to the award paid to the owner; hence, after tender of the amount and deposit of the money with the county treasurer, the owner is not entitled to interest thereon, when "a new appraisal has been had, but is only entitled to interest on the excess of the second award over the first during the time the party taking the proceedings was in possession.</p> <p>Semble, when private property is taken for public purposes and a substantial period elapses between the time of taking and payment therefor, interest may he awarded to the time of payment or at least to the time of ascertainment of the amount to be paid.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 2, 1907, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in a taxpayer’s action to set aside as illegal and collusive certain audits made by the defendants as supervisors of Nassau county.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 7, 1905, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have occurred through defendant’s negligence.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 18,1908, affirming a judgment in favor of plaintiff entered, upon a verdict directed by the court in an action to recover upon a surety bond.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 13, 1907, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial in an action to recover personal property alleged to have been wrongfully detained by defendant.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 8, 1908, which affirmed an order of the New York County Surrogate’s Court remitting the proceeding herein to an appraiser with instructions to ascertain and report the amounts to be deducted for expenses of administration and commissions from a transfer tax theretofore fixed.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 18, 1908, which reversed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the appellant herein to examine and approve of plans, for a certain sky sign and granted said motion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 26, 1908, which modified and affirmed as modified a decree of the New York County Surrogate’s Court admitting to probate an instrument propounded as the last will and testament of Charles Rubens, deceased.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered January 15, 1908, which reversed a judgment in favor of plaintiff entered upon a verdict directed by the court and an order denying a motion for a new trial and granted a new trial in an action for conversion.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 24, 1908, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to recover damages to easements of real property abutting on defendants’ elevated railroad.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 31, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover for personal injuries alleged to have been received through defendant’s negligence.</p>

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 30,1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover upon contract.</p>

judgment in' favor of plaintiff entered upon a decision of the court on trial at Special Term and granting a new trial in an action to rescind a contract for the sale of real estate.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered January 24, 1908, reversing a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury and granting a new trial in an action to recover upon a contract.</p>

<p>Appeal from a order of the Appellate Division of the Supreme Court in the third judicial department, entered April 3, 190S, which reversed a judgment in favor of plaintiffs entered upon a verdict and an order denying a motion for a new trial and granted a new trial in an action to recover the purchase price of a certain machine alleged to have been sold and delivered.</p>

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered July 1, 1907, affirming a judgment in favor of plaintiff entered upon a decision of the Municipal Court of the city of New York in an action under section 604 of the Railroad Law (L. 1892, ch. 676) to recover a penalty for refusal of the defendant to issue a transfer.

order of the Appellate Division of the Supreme Court in the first judicial department, entered March 24, 1908, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover for an alleged breach of contract.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered October 25, 1907, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at Special Term in an action to enjoin an alleged unlawful combination in restraint of trade.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered - January 8, 1909, which reversed an interlocutory judgment of Special Term overruling a demurrer to the complaint and sustained such demurrer in an action to recover on a policy of insurance against loss on shipments of merchandise.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 27, 1907, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for personal injuries alleged to have been sustained by an employee through the master’s negligence.</p>

<p>Appeal from an 'order of the Appellate Division of the Supreme Court in the second judicial department, entered May 12,1908, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial and granted a new trial in an action to recover for an alleged wrongful discharge from employment.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 10,- 1908, which reversed a judgment in favor of plaintiffs entered upon a verdict directed by the court and an order denying a motion for a new trial and granted a new trial in an action to recover upon certain promissory notes.</p>

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 6, 1908, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court on. trial at Special Term and granting a new trial in an action ' of partition.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in' the first judicial department, entered November 22, 1907, which affirmed a determination of the Appellate Term affirming a judgment in favor of plaintiff entered upon a decision of the Municipal Court of the city of New York in an action to recover salary alleged to be due plaintiff as a school teacher.

The motion was made upon the ground that the appeal was inadvertently taken, the order of reversal stating that said reversal was “ upon the law and the facts.”

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 23, 1908, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint in an action to recover penalties for alleged violations of the provision of the Agricultural Law forbidding the sale of adulterated milk.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered April 1, 1908, which reversed an interlocutory judgment of Special Term sustaining demurrers to the complaint and an order denying a motion to continue a preliminary injunction, overruled such demurrers and granted such motion in an action to restrain the defendant mayor from executing and delivering to the defendant United Traction Company a certain…