Volume 206 — New York Appellate Division Reports

Appeal by the plaintiff, Catharine Wissner, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 24th day of March, 1923, upon the dismissal of the complaint by direction of the court at the close of the plaintiff's case.

Appeal by the plaintiff, Pauline Falikman, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 3d day of May, 1923, denying her motion for a final judgment.

<p>Appeal by the plaintiff, Richard Croker, Jr., 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 11th day of May, 1923, granting defendant’s motion for a stay of proceedings.</p>

Appeal by Milton Eichold, intervenor, from that part of a peremptory mandamus order of the Supreme. Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 5th day of March, 1923, directing the sheriff of the county of Kings to receive an execution issued upon a judgment and to levy upon and sell certain real property.

<p>Appeal by Robert Braasch and another, as executors, etc., and others, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of said Surrogate’s Court on the 6th day of April, 1922, judicially settling the accounts of Henry Albers and others, as executors, etc., of Anna Maria Braasch, deceased.</p>

Appeal by the defendant, The New York Central Railroad Company, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 28th day of April, 1923, denying its motion to vacate certain notices of the taking of depositions of certain witnesses who are employees of the appellant.

<p>Appeal by the defendant, DeWitt C. Flanagan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of November, 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 8th day of November, 1922, denying defendant’s motion for a new trial made upon the minutes.</p>

Appeal by the Long Island Railroad Company from a determination of the Transit Commission of the State of New York, made pursuant to section 90 of the Railroad Law and dated the 20th day of December, 1921, prescribing the method that the appellant shall use in carrying a new street across its tracks. The opinion of the Transit Commission is reported in Matter of City of New York (27 State Dept. Rep. 137).

<p>Appeal by the defendant, The Mount Vernon Company, Silversmiths, Inc., from an order of the Supreme Court, made at the Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 15th day of November, 1922, confirming the report of a referee in surplus money proceedings and directing distribution of the surplus.</p> <p>The controversy in these surplus money proceedings is between the Mount Vernon Company, Silversmiths, Inc. (hereinafter referred to as the Silversmiths Company), and the Mount Vernon Metal Products Company, Inc. (hereinafter referred to as the Products Company). The Silversmiths Company filed a notice of claim to the surplus arising from the foreclosure of a paramount mortgage upon the property of the Products Company. This notice claimed $78,265, “ by virtue of an equitable lien arising as a result of advances made to and on behalf of ” the Products Company. The notice further stated that “An action is now pending in the Supreme Court * * * the object of which action is to have the equitable lien of the plaintiff satisfied out of the property * * * for the amount of the advances.” The complaint in the last action referred to was the subject of consideration by this court (Mount Vernon Co., Silversmiths, Inc., v. Mount Vernon Metal Products Co., Inc., 202 App. Div. 753), where an order denying the motion of the Products Company to discharge the Us pendens in that suit was reversed. Thereafter the hearing before the referee in the surplus money proceeding came on for hearing. The amount of the surplus is $6,144.26. It is claimed by the Products Company as the owner of the equity of redemption of the property mortgaged, and by the Silversmiths Company on account of the $78,265 claimed as an equitable lien. Upon a hearing in the surplus proceedings the referee ruled that the Silversmiths Company was “ not entitled in this proceeding to try out ” its claim, but stated that he would take such offer of proof as was desired thereon. The Silversmiths Company thereupon offered to prove payments by it to the holder .of the first mortgage on account of principal and interest, aggregating $10,000, and also payments on account of city taxes on the property, amounting to $1,768.57. This proof was objected to “ upon the ground that they establish, if anything, only the right to a personal action ” against the Products Company “ and furnish no foundation for a lien against the surplus.” The referee sustained the objection on the ground that there was “ no right to try that issue out in this proceeding.” A further offer was then made to prove the amount of the additional advances, up to the total of $78,265, and the same objection, in amplified form, was made, including specific reference to the action pending for the establishment of the equitable lien, and that 1 ‘ the offer now made is in effect an offer to try the merits of the main suit * * * and that such proof is not admissible because it will result in trying the same issues between the parties in the Trial Court, before the Referee in this proceeding.” The objection was sustained, the referee refusing the offered testimony “ upon the ground that the alleged claim for a lien cannot be tried in this proceeding.” By findings requested by both parties, and incorporated in the referee’s report, it appears as found that the objection to the proof offered was “ by reason of the pendency ” of the other suit, and that the Silversmiths Company “ is, by reason of the pendency * * * not in a position to try out its claim in this proceeding because it would result in two trials of the same issues between said parties.” The referee reported, as a conclusion of law, that the surplus was due and payable to the Products Company “ as the owner of the real estate foreclosed, and of the equity of redemption therein,” and denied the conclusion requested by the Silversmiths Company “ That the payment of the surplus moneys * * * to the ” Products Company, “ should be deferred until the determination of said action,”</p>

Appeal by the defendant, Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered ' in the office of the clerk of the county of Erie on the 27th day of March, 1923, upon the verdict of a jury for $22,500.

Appeal by the plaintiff, Daniel L. McNamara, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Oneida on the 3d day of July, 1923, directing that Paul J. McNamara, as executor of .the last will and testament of Daniel McNamara, deceased, and as testamentary trustee for Daniel L. McNamara, an infant, under said will, be interpleaded herein and substituted as sole party defendant.

Appeal by the defendants, Barrett, Nephews & Company and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Richmond on the 13th day of November, 1922, upon the decision of the court, rendered after a trial at the Richmond Special Term, and also from an order entered in said clerk’s office on the 13th day of November, 1922, granting the plaintiff an extra allowance.

Appeal by Dennis S. Regan and another, contestants, from a decree of the Surrogate’s Court of the county of Kings, entered in the office of the clerk of the Surrogate’s Court on the 19th day of June, 1923, upon the verdict of a jury, rendered by direction of the court, admitting to probate the paper writing propounded as the last will and testament of Eliza Began., deceased, and also from an order, entered in said clerk’s office on the 12th day of June, 1923, denying their…

Appeal by the defendant, Charles M. Everitt, from an order of the Supreme the Court, made at the Kings Special Term and entered in the office of the clerk of the county of Suffolk on the 5th day of September, 1923, striking out certain defenses and dismissing certain counterclaims contained in defendant’s amended answer, in an action for the specific performance of an agreement for support and maintenance.

Appeal by the plaintiff, Sigmund Baar, from an order of the Supreme Court, made at the Kings Special Term and entered in the office of the clerk of the county of Kings on the 28th day of September, 1923, denying his motion to vacate or limit a notice for his examination before trial, and to stay the examination pending the trial of a criminal proceeding.

Appeal by the defendant, Iva McMillan, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the Washington county clerk’s office on April 2, 1923, directing her to serve a bill of particulars.

<p>Appeal from an order of the Supreme Court, made at the New York Special Term and entered in the New York county clerk’s office on March 28, 1923, denying the defendant’s motion for judgment dismissing the complaint.</p>