Volume 204 — New York Appellate Division Reports

<p>Attachment — vacating attachment — it is improper to provide, in order vacating attachment, that defendant pay sheriff's fees as condition to return of property — order should require return of all property and that plaintiff pay fees of sheriff.</p> <p>It is improper to provide in an order vacating a warrant of attachment that the defendant shall pay the fees of the sheriff as a condition to the return of the property.</p> <p>The order should require the sheriff to return all of the property attached and that the plaintiff pay the sheriff’s fees.</p>

Appeal by the defendant, O. J. Gude Company, New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Bronx on the 17th day of March, 1922, upon the verdict of a jury for $2,000.

Appeal by the plaintiff, Nellie Christiano, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 22d day of September, 1922, as resettled by an order entered in said clerk’s office on the 25th day of October, 1922, denying plaintiff’s motion to punish defendant for contempt for failure to pay alimony.

Appeal by the defendants, Frank X. Schwab and others, from a peremptory mandamus order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 26th , day of October, 1922, commanding said Ross Graves, as commissioner of finance and accounts of the city of Buffalo, to countersign a warrant drawn on the treasurer of that city, authorizing the payment of an alleged balance of salary due the petitioner.

Appeal by the plaintiff, William Jay Schieffelin, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 16th day of October, 1922, as resettled by an order entered in said clerk’s office on the 2d dáy of November, 1922, denying his motion for a temporary injunction, and also from an order entered in said clerk’s office on the 30th day of October, 1922, denying said motion upon reargument.

<p>Appeal by the defendants, Sol Cohen and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 30th day of March, 1922, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk’s office on the 29th day of March, 1922, denying defendants’ motion for a new trial made upon the minutes.</p>

Appeal by the plaintiff, Lowell Lamb & Company, Inc., from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17th day of April, 1920, upon the decision of the court rendered after a trial at the New York Special Term dismissing the complaint.

Appeal by the defendants, Minnie Freifeld and another, from an order of' the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of October, 1922, granting plaintiffs’ motion for a temporary injunction.

Appeal by the plaintiff, Herbert Cox, from a determination of the Appellate Term of the Supreme Court, First Department, entered in the office of the clerk of the county of New York on the 28th day of June, 1921, reversing a judgment of the Municipal Court of the City of New York, Borough of Manhattan, First District, in favor of the plaintiff and against the respondent. The complaint was dismissed by the trial court as against the defendant Lykes Brothers.

Appeal by the defendant, James C. Davis, from a judgment of the County Court of the.county of Niagara, entered in the office of the clerk of said county on the 26th day of January, 1922, affirming a judgment of the City Court of North Tonawanda in favor of the plaintiff, and also from the order pursuant to which said judgment was enteied.

Appeal by the defendants, Bertha Norwich and another, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 2d day of October, 1922, denying their motion to set aside an order entered in skid clerk’s office on the 30th day of August, 1922, directing the sheriff of the county of Monroe to put respondent in possession of certain property, with notice of intention to bring up for review the…

Appeal by the defendants, William J. Burke and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 25th day of April, 1922, confirming the report of a referee in a certiorari proceeding brought to review the assessment of relator’s property, made by defendants for taxation for the year 1921.

Appeal by the plaintiff, Fred G. Safee, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 20th day of July, 1922, as denies in part his motion for a temporary injunction order restraining the enforcement of an ordinance of the city of Buffalo, known as chapter 23 of the Buffalo City Ordinances, passed March 1, 1922 (since amended July 26, 1922).

Appeal by the plaintiff, Mabel Williams, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 10th day of May, 1922, upon the “dismissal of the complaint by direction of the court at the close of the plaintiff’s case.

<p>Appeal by the defendants, John J. Kelleher, Inc., and another, from an award of the State Industrial Board, made on the 6th day of June, 1922.</p>

<p>Taxation — income tax — transfer tax is deductible under Tax Law, § 360, in determining net income of estate of deceased person.</p> <p>In calculating the annual net income of an estate of a deceased person, in order to compute the income tax payable by the estate in a given year, transfer taxes paid by the executor of the deceased person within the year are* deductible, under section 360 of the Tax Law, from the annual gross earnings received by the estate.</p>

Appeal by Ralph Phelps, Jr., and others from a decree of the Surrogate’s Court of the county of Madison, entered in the office of said Surrogate’s Court on the 7th day of July, 1920, denying appellants’ petition for an order directing, among other things, the payment of certain claims out of the estate of the deceased.

Appeal by the defendant, General Electric Company, from awards of the State Industrial Board, made on the 3d day of February, 1922, and the 29th day of May, 1922, respectively.

<p>Workmen’s compensation — injury arising out of and in course of employment — claimant, who was fireman, was burned by escaping steam and water while regulating valve — claimant instructed not to touch valve but later his immediate superior told him to regulate valve — claimant was not outside employment when injured — award sustained though there was no specific finding as to prohibited-act.</p> <p>The claimant suffered an injury in the line of his employment where it appeared that he was engaged as fireman; that at the time he was employed he was told by the chief engineer not to touch a certain valve but to call on his superior when it was necessary to regulate the valve; that after working several weeks his immediate superior told him that he could regulate the valve in question, and that thereafter while regulating the valve he was injured by escaping water and steam.</p> <p>At the time of the injury the claimant was not engaged in an employment prohibited as to him, but at most he was merely violating an order as to a detail of the very work for which he was employed, and furthermore, he did not consciously violate that order, since he had the right to assume that the force of the order had been spent by reason of his experience, coupled with the direction by his immediate superior to do the very thing prohibited.</p> <p>While the Industrial Board did not make specific findings in relation to the prohibited act, the award may be sustained on the ground that the proofs and proper inferences therefrom warrant the general finding that the accident occurred while the claimant was engaged in the regular course of his employment.</p>

<p>Canals — claim of contractor, engaged in building lock in Erie canal, for damages caused by water backing up from Barge canal — lock was Jo be completed during closed season — contractor was required to construct cofferdams sufficient only to take care of drainage in Erie canal — State breached contract when drainage was cut off and when water was turned into Barge canal — claim accrued under Code of Civil Procedure, § 264 (now Court of Claims Act, § 15), when contractor had pumped water from lock and ascertained damages.</p> <p>The claimant entered into a contract for the construction of a lock in the Erie canal about fifty feet from the junction of the Erie and Barge canals. The contract provided that the work was to be completed during the closed season, while the water necessary for navigation purposes was out of the canal. At the point in question, the level of the Barge canal is some nine feet lower than that of the Erie canal. The contractor constructed cofferdams sufficient in strength to take care of the drainage in the Erie canal. Another contractor engaged in work on the Barge canal constructed a wall therein which shut off the drainage of the Erie canal, caused the water to back up and damage the claimant’s plant, and on two other occasions the guard gates connecting the Barge canal with the Mohawk river were opened under the authority of the Superintendent of Public Works, and water was permitted to flow into the Barge canal with the result that water backed up and onto claimant’s plant and damaged it. The cofferdams erected by claimant were not of sufficient strength to protect his work against these conditions.</p> <p>Held, that while the claimant agreed to build suitable cofferdams and abide by the direction of the State Engineer, it had the right to assume that conditions in the canals would remain substantially the same as they were at the time, and it was not required to construct cofferdams of sufficient strength to withstand the floods that were sent against them when the drainage was shut off and when the guard gates on the Barge canal were opened;</p> <p>That, therefore, the State is liable for the damage resulting, since, when it cut off the flow of the water in the Erie canal and backed it upon the claimant’s plant to its damage, it breached the implied covenant in the contract that the State would not do anything to prevent the claimant from carrying out its contract or to hinder, delay or obstruct it in so doing, and when the State deliberately opened the gates and let the water into the canal from the Mohawk river, over the protest of the plaintiff, and thereby flooded its plant, it breached the contract.</p> <p>The claim did not accrue under section 264 of the Code of Civil Procedure (now Court of Claims Act, § 15) until the water was pumped out of the lock by the contractor and it was able to take an account of the situation and ascertain the extent of the damage.</p>

<p>Appeal by the defendants, Lake Champlain Pulp and Paper Company and another, from an award of the State Industrial Board, made on the 17th day of August, 1922.</p>

Certiorari order granted out of the Supreme Court at the Rensselaer Special Term and entered in the office of the clerk of the county of Columbia on the 27th day of July, 1922, directed to the commission of public safety of the city of Hudson, N. Y., commanding said commission to certify and return to the office of the clerk of the county of Columbia all and singular its proceedings had in connection with the removal of the petitioner from the office of chief of police of…

<p>Waters and watercourses — claim against State by owner of island in Hudson river for part thereof appropriated for Barge canal purposes and for consequential damages — Hudson river is navigable at point in question — measure of damages — availability of appropriated parcel as site for dam and cutting off access to island by water are not elements of damages.</p> <p>The State appropriated, for Barge canal purposes, a part of an island which was owned by the claimant and located in the Hudson river at a point where the stream is navigable and the title to the bed is in the State, and in the improvement of the Hudson river for Barge canal purposes it constructed a dam across the river on either side of the island, thereby cutting ofl access to the island by water, and it deposited refuse and dredged material in the river northerly to such an extent as to impede, and perhaps obstruct, transportation by water from tiie island northerly.</p> <p>Held, that the claimant is entitled to recover the fair market value of her property, for all available uses and purposes, which the State has taken; both the value of that which is taken and consequential damages to her remaining property, the value of the property viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted. But, in fixing this market value, the court cannot attribute to the claimant’s land any part of the value which might result from a consideration of its value as a necessary part of a comprehensive system of river improvement, nor the value of the property to the government for its particular use.</p> <p>The availability of the parcel appropriated for a site for a dam could not be taken into consideration in assessing the damages, since the claimant had no right to erect a dam without the consent of the State, nor could the saving in money to the State by the building of the dam at that point, instead of building it farther up the river, be allowed to the claimant as damages.</p> <p>The loss of right of access to the island by water is not an element of damages or of the market value of the claimant’s property.</p>

<p>Workmen’s compensation — claimant playfully pulled cap over another employee’s eyes — other employee readjusted cap with hand in which he held file — file flew.from handle and struck claimant in eye —.injury did not arise in course of employment.</p> <p>The claimant did not receive an injury in the course of his employment, where it appeared that he playfully pulled a cap over another employee’s eyes; that a file, held in the hand of the other employee, flew from its handle when he readjusted his cap, and struck the claimant in the eye causing the injury complained of.</p> <p>The accident only flowed as a continuance of the primary act of the claimant who voluntarily stepped aside from his employment to satisfy a purely personal desire.</p> <p>Kilby and Hasbrouck, JJ., dissent, with memorandum.</p>

<p>Vendor and purchaser — rejection of title — deficiency of land and other objections — action for specific performance — damages — motion to cancel lis pendens — when denied.</p>