Volume 228 — New York Reports

ourt on trial at Special Term. The plaintiffs in this action sought to have a certain assignment of a mortgage adjudged null and void, delivered up to plaintiffs and the record thereof canceled upon the grounds that the same was without consideration, had not been executed by the mortgagee and had been obtained from the mortgagee in some illegal manner. Patrick Lilly, plaintiffs’ testator, at the time of his death April 25th, 1911, was about the age of ninety-three years.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 1, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff was in no event entitled to recover expenses of litigation. (Roake v. Sullivan, 69 Misc.

The facts, so far as material, are stated in the opinion. A policeman, being a governmental agent of the state, performs official duties of a sovereign character and is not engaged in an employment by the city of- New'York within the meaning of group 43 of the statute. Official tenure does not constitute an employment. (Spinks v. Village of Marcellus, 180 App. Div. 732; Matter of Mueller v. City of New York, 189 App.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 23, 1919, affirming an award of the state industrial commission made under the Workmen’s Compensation Law.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The death of the deceased was not caused by an accident arising out of and in the course of his employment within the intention of the legislature as expressed in the Workmen’s Compensation Law. (Hiers v. Hull & Co., 178 App. Div. 350; Sherwood v. Johnson, 1913, W. C. & Ins. Rep. 57; Steel v. Cammell, Laird & Co., 1905, 2 K. B. 237; Eke v. Hart-Dyke, 1910, 2 K. B. 677; Higgins v. Campbell & Harrison, 1904, 1 K. B. 328; Fenton v. Thorley, 1903, App. Cas. 443; Matter of Collins v. B. U. Gas Co., 171 App. Div. 381.)</p> <p>The death of the deceased was caused by an accident arising out of and in the course of his employment, within the intent and meaning of the Workmen’s Compensation Law. (Hiers v. Hull & Co., 178 App. Div. 350; Horrigan v. Post Standard Co., 224 N. Y. 620; Matter of Hart v. Wilson, 227 N. Y. 554; Matter of Plass v. C. N. E. Ry. Co., 169 App. Div. 826.)</p> <p>It is conceded that the deceased employee died of anthrax, and it is a reasonable inference that the anthrax germ entered the cut in the neck while in the course of his employment. (Matter of Hart v. Wilson, 227 N. Y. 554; Higgins v. Campbell & Harrison, 6 W. C. C. 1.) It has been held in this court as well as in the courts of other jurisdictions that the contraction of anthrax is an accident for which the state industrial commission may make compensation. (Brinton’s Limited v. Turvey, 7 W. C. C. 1; Hiers v. Hull & Co., 178 App. Div. 352; Plass v. C. N. E. R. R. Co., 221 N. Y. 472; Lewis v. Ocean A. & G. Corp., 224 N. Y. 18; Hood v. Maryland Casualty Co., 206 Mass. 223; Ætna L. Ins. Co. v. P. G. & C. Co., 229 Fed. Rep. 552; Vennon v. N. D. Lumber Co., 154 N. W. Rep. 640; Paul v. T. Ins. Co., 112 N. Y. 472.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 4, 1919, which unanimously affirmed an order of the Onondaga County Surrogate’s Court assessing a transfer tax upon the estate of Frederick R. Hazard, deceased. Frederick Rowland Hazard died on February 27th, 1917.

The facts, so far as material, are stated in the opinion. The facts in the petition upon which the writ was allowed were not sufficient to warrant the release of the respondent from imprisonment. (Penal Law, § 2190; Haggerty v. People, 53 N. Y. 476; People v. Burns, 77 Hun, 92.) The respondent did not traverse the return to the writ of habeas corpus, consequently the facts therein stated stand admitted. A parole violator is a fugitive from justice.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 6, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The nature of the action and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. The Compensation Act in terms limits compensation to non-resident alien dependent parents of the deceased to the father or mother. (L. 1916, ch. 622; Debessi v. Normandy Water Co., 228 Fed. Rep. 234; Cassella v. McCormick, 180 App. Div. 94.) Section 17 of the Compensation Law authorizes compensation to both father and mother. (Casella v. McCormick, 180 App. Div. 94.)

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 13, 1919, which reversed an order of Special Term denying a motion by respondent herein for vacation of an attachment and granted said motion. The following questions were certified: “ 1. Has the defendant bank a right to make the motion to vacate the attachment? “ 2.

<p>' Railroads — negligence — contributory negligence — when negligence of section hand, struck and killed by locomotive while asleep on tracks, not proximate cause of his death — when question whether negligence of engineer was proximate cause of injury was for the jury.</p> <p>A seetionman on the defendant’s railroad fell asleep while sitting on a tie close to the rails and was there struck and killed by the tender of a locomotive, which was backing down the track, drawing a work train. The trial judge charged without objection that the deceased was guilty of negligence and that there could be no recovery unless the jury was satisfied that, after the engineer on the train had actually discovered deceased in his position of peril, he should, in the exercise of ordinary care, have stopped the train. Held, upon examination of the evidence that the judgment for plaintiff, entered upon the verdict of the jury, is supported by the facts; that the negligence of the deceased was not the proximate cause of his injury; and that, considered with other facts and circumstances to the contrary, the jury might have disbelieved the testimony of the engineer that he applied the brakes and attempted to stop the train as soon as he saw the deceased.</p>

<p>Libel — evidence —• damages — actual damages may be recovered .against corporation as publisher of book containing libelous matter, irrespective of ill will or intent to injure — punitive damages defined — when properly allowed — what evidence of knowledge that matter offered for publication was a malicious libel is required to charge officers of corporation therewith and make corporation liable therefor — agency —• knowledge of agent when attributable to principal.</p> <p>1. The fact that the publisher had no actual intention to defame a particular man or indeed to injure any one, does not prevent recovery of compensatory damages by one who connects himself with the publication of a libel, at least in the absence of some special reason for a positive belief that no one existed to whom the description answered. He cannot show that a libel was not of and concerning the plaintiff by proving that he never heard of the .plaintiff. Reputations may not be traduced with impunity, whether under literary forms of a work of fiction, or in jest, or by inadvertence, or by the use of words with a double meaning.</p> <p>2. Unless the judge rules that the occasion is privileged, the question of malice is never for the jury when compensatory damages alone are sought; the plaintiff recovers damages if he proves that the words apply to him and that his reputation has been injured, whether such injury is the result of defendant’s evil disposition towards him or a mere concatenation of adventitious circumstances.</p> <p>3. Malice has two distinct meanings in the law of libel from which two distinct burdens are imposed on plaintiff. It may mean “ either actual malice or such malice as by legal fiction is presumed for the purpose of reconciling certain other rules in the law of libel.” In order to recover punitive damages against a publisher of a work of fiction containing libelous matter plaintiff is bound to satisfy a jury by a fair preponderance of evidence that defendant (1) was animated, in a publication, by conscious ill will toward him, or (2) did not publish the alleged libel in good faith and in the honest belief that it was fiction, but was indifferent as to whether it would injure some real party actually referred to.</p> <p>4. Actual malice, as a basis for punitive damages, might be inferred as against its author from the falsity of a publication, where conscious ill will appears therefrom, but not as against the mere publisher of a libel in a novel which on its face does not purport to be serious or bear the evidence of malice against an actual individual or against any one. The publisher in such a case is not liable to exemplary damages for the acts of the author upon mere proof of publication.</p> <p>5. While a corporation knows a fact only as its officers and agents know it, it does not know all that its agents know, but only what comes to them while acting for the corporation within the scope of the agency, when it is their duty to report their knowledge to the general officers or agents of the company. It may' then be presumed that they have told the principal what they know.</p> <p>6. On examination of the evidence in an action brought against the publisher of a book containing libelous matter, held, first, that the proof of actual knowledge of the defendant’s vice-president of a purpose to libel plaintiff is unsatisfactory; second, that the knowledge of the manager of another department of defendant’s business which was not received while he was acting as defendant’s agent was not the knowledge of defendant and should not have been submitted to the jury; third, that the knowledge or indifference, if either appeared, of defendant’s literary editor and chief manuscript reader was chargeable to defendant. Although he was not authorized to accept a malicious libel for publication, if he did so in the corarse of his employment intentionally or without proper inquiry, defendant is liable for the act.</p>

The nature of the action and the facts, so far as material, are stated in the opinion. The horse was not a vicious animal, and the injury claimed to have been suddenly inflicted by it was not to be anticipated from its history and does not cast responsibility upon its owner. (Brice v. Bauer, 108 N. Y. 425; McHugh v. Mayor, 31 App. Div. 299; Lawler v. French, 2 App. Div. 140.) There was no evidence to establish scienter.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 19, 1919, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term. ' The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 17, 1919, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material are stated in the opinion. The admission in evidence of the order of the Appellate Division reversing the former judgment of the trial court was erroneous.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department entered December 11, 1917, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. 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, are stated in the opinion. Assuming the roof to have beeñ of such radically defective construction as not to keep out the rain, it did not constitute as between the plaintiffs lessees and the defendant lessor a nuisance.

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, are stated in the opinion. The Appellate Division having reversed judgment and dismissed the complaint, it must be conclusively presumed that the judgment was not reversed upon a question of fact. (Cannon v. Fargo, 222 N. Y. 321; Conway v. Naylor, 222 N. Y. 437; Faber v. City of New York, 213 N. Y. 411.) The issue of probable cause was rightfully submitted -to the jury. (McMorris v. Howell, 89 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The obligation of defendant to pay plaintiff the outstanding account of $2,284.52 for fabric delivered in 19M was a condition precedent to the obligation of plaintiff to make shipment of 5,000 pieces of fabric on January 20, 1915. (Browne v. Paterson, 165 N. Y. 460; Lowber v. Bangs, 2 Wall. 728.) The defendant waived the provisions of the sales order respecting the dates of shipment.

The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered May 19, 1919, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered June 20, 1919, which affirmed an order of Special Term denying a motion by the appellants herein for confirmation of the final report of commissioners of estimate in the above-entitled proceeding and directing said commissioners to review and correct their said report-as to certain damage parcels therein set forth.

The nature of the action and the facts, so far as material, are stated in the opinion. The Statute of Limitations is not a bar to this action. (L. 1890, ch. 566, § 65; Jones v. Rochester Gas & El. Co., 7 App. Div. 474; 158 N. Y. 678; Meiers v. Met. Gas Light Co., 11 Daly, 119; Shelley v. Westchester Lighting Co., 139 App. Div. 690; 204 N. Y. 641; 128 App. Div. 890; Hoch v. Brooklyn Bor. Gas Co., 117 App. Div. 882, 883, 884; Levine v. Brooklyn Union Gas Co., 146 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The omission of plaintiff’s intestate to have a light upon his vehicle was not prima facie evidence of contributory negligence by him. (Amberg v. Kinley, 214 N. Y. 531; Barr v. Green, 210 N. Y. 252; Kelly v. N. Y. S. Rys. Co., 207 N. Y. 342; Mariano v. Lehmaier, 173 N. Y. 530; Donnelly v. City of Rochester, 166 N. Y. 315; Graham v. Manhattan Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. An agency of the state in the performance of its governmental functions shares with it immunity from the doctrine of respondeat superior.

The nature of the action and the facts, so far as material, are stated in the opinion. The effect of the defendants’ transaction of March 20, 1915, was to satisfy the whole bond debt, discharge the whole mortgage, and make an accord and satisfaction between them and the makers thereof, and they thereby bound the plaintiff, their co-owner.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 12,1919, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without a jury. The nature of the action and the facts, so far as material, are stated in the opinion. There was nothing whatsoever in the case to show that the Otis Company owed any duty to the Wanamaker Company.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered March 7, 1919, affirming a judgment in favor of defendant entered upon an order of Special Term overruling a demurrer to separate defenses set up in the answer and directing a dismissal of the complaint.</p> <p>The nature of the action and the facts, so far .as material, are stated in the opinion.</p> <p>As a proposition of state law alone (disregarding for the moment all Federal legislation) the legislature under its reserved power over corporations had absolute authority to enact chapter 713 of the Laws of 1917 and chapter 166 of the Laws of 1918 amending the original charter of the railroad. (Const. of N. Y. art. 8, § 1; General Corporation Law, § 320; N. Y. C. & H. R. R. R. Co. v. Williams, 199 N. Y. 119; People v. Beakes Dairy Co., 222 N. Y. 416.) Chapter 713 of the Laws of 1917 does not impair the obligation of any contract nor does it confiscate property, but it is a valid exercise of the state’s power to regulate the exercise of defendant’s franchise as a railroad or to regulate defendant itself as a corporation of its creation. (Matter of N. Y. El. Lines, 201 N. Y. 321; 235 U. S. 179.) The acts of 1917 and 1918 take away no rights from the defendant, nor do they confiscate any of its property. They simply add an additional burden to the permission granted by the prior act of 1913. This was within the absolute power of the legislature. (People ex rel. Kimball v. B. & A. R. R. Co., 70 N. Y. 569; Mayor, etc., v. Twenty-third St. Ry. Co., 113 N. Y. 311; Lord v. Equitable Life Assur. Society, 194 N. Y. 220; Lehigh Valley R. R. Co. v. Canal Board, 146 App. Div. 151; C., B. & Q. R. R. Co. v. Drainage Comrs., 200 U. S. 561; West Chicago St. Ry. Co. v. Illinois, 201 U. S. 506; N. Y. C. & H. R. R. R. Co. v. Williams, 199 N. Y. 108; N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S. 556; Greenleaf Lumber Co. v. Garrison, 237 U. S. 251; G. & W. Ry. Co. v. N. Y. C. & H. R. R. R. Co., 112 App. Div. 581.) Assuming all that the defendant railroad contends, namely, that it received primary creative authority to build the bridge from Congress and not from the state, the power from Congress was simply to build a bridge, and the type thereof was open to state legislative control in the interests of the public. (L. S. & M. S. Ry. Co. v. Ohio, 165 U. S. 365.) The defendant railroad did not receive primary creative authority to build the bridge from Congress, but from the state. The consent, or secondary authority, from Congress in the protection of navigation interests, is not such a congressional act as assumes the entire field of jurisdiction with respect to this bridge to the exclusion of the state. (Wilson v. Black Bird Creek Marsh Co., 2 Pet. 250; State of Pennsylvania v. Wheeling Bridge Co., 18 How. [U. S.] 421; 9 How. [U. S.] 647; 13 How. [U. S.] 518; Passaic Bridges Case, [U. S. Dist. of N. J.] 3 Wall. App. 782; 3 Wall. 720; County of Mobile v. Kimball, 102 U. S. 691; Bridge Company v. United States, 105 U. S. 470; Miller v. Mayor of New York, 109 U. S. 395; Sands v. Manistee River Improvement Co., 123 U. S. 288; Willamette Iron Bridge Co. v. Hatch, 125 U. S. 1; Escanaba Co. v. Chicago, 107 U. S. 679; Cardwell v. Am. Bridge Co., 113 U. S. 205.) The state of New York has title to and governmental control of the land under the waters of the Hudson river and such lands cannot be taken from it without its consent unless by condemnation and payment therefor. (Martin v. Waddell, 16 Pet. 367, 410; Pollard’s Lessee v. Hagan, 3 How. [U. S.] 230; Morris v. United States, 174 U. S. 196, 227; People v. International Bridge Co., 223 N. Y. 137, 145; United States v. Chandler-Dunbar Water Co., 229 U. S. 53; Lewis Blue Point Oyster Co. v. Briggs, 198 N. Y. 287; 229 U. S. 682; Scranton v. Wheeler, 179 U. S. 141, 163; Gibson v. United States, 166 U. S. 269, 271.)</p> <p>The Federal power in this instance is paramount and exclusive. (U. S. Const. art. 1, § 8; Gibbons v. Ogden, 9 Wheat. 1; Gilman v. Philadelphia, 3 Wall. 713; State v. W. & B. Bridge Co., 18 How. [U. S.] 421; Wisconsin v. Duluth, 96 U. S. 379; Scranton v. Wheeler, 179 U. S. 141; Greenleaf Lumber Co. v. Garrison, 237 U. S. 251; Matter of Debs, 158 U. S. 563; Stockton v. B. & N. Y. R. Co., 32 Fed. Rep. 9.) It is competent for Congress to legalize what the state has declared to be illegal. (State v. W. & B. Bridge Co., 18 How. [U. S.] 421; Stockton v. Baltimore & N. Y. R. Co., 32 Fed. Rep. 9; 140 U. S. 699; Decker v. B. & N. Y. R. Co., 30 Fed. Rep. 723.) Appellant’s title to the land under water is inconsequential. (Stockton v. B. & N. Y. R. Co., 32 Fed. Rep. 9; Gilman v. United States, 166 U. S. 269; Greenleaf Lumber Co. v. Garrison, 237 U. S. 251.) The purpose of the Federal government to assume complete and exclusive control of the subject-matter is manifest. (6 Fed. Stat. Ann. 805, 813, 814; 9 Fed. Stat. Ann. [2d ed.] 53, 81, 82; Fed. Stat. Ann. 1909 Supp. 600, 601; 9 Fed. Stat. Ann. [2d ed.] 92, 93; Gilman v. Philadelphia, 3 Wall. 713; Houston & Texas Ry. Co. v. United States, 234 U. S. 342; Penn. R. R. Co. v. U. S., U. S. Sup. Ct., Nov. 10, 1919; Southern Ry. Co. v. R. R. Comm., 236 U. S. 439; Erie R. R. Co. v. New York, 233 U. S. 671.) Chapter 713 of the Laws of 1917, if given the effect which appellant ascribes to it, would violate the contractual obligation clause of the Federal Constitution; so also would any construction of chapter 166 of the Laws of 1918 in derogation of rights acquired by defendant under chapter 388 of the Laws of 1913. (Binghamton Bridge, 3 Wall. 51; N. O. W. W. Co. v. Rivers, 115 U. S. 674; Russell v. Sebastian, 233 U. S. 195; C. Canal Co. v. Louisiana, 233 U. S. 362; Erie R. R. Co. v. Pennsylvania, 153 U. S. 628; Adirondack Ry. Co. v. State, 176 U. S. 335; People ex rel. N. Y. C. & H. R. R. R. Co. v. Mealy, 224 N. Y. 187; People ex rel. City of New York v. N. Y. Rys. Co., 217 N. Y. 310; Holyoke Co. v. Lyman, 15 Wall. 500.) Neither chapter 713 of the Laws of 1917 nor chapter 166 of the Laws of 1918 can be sustained under the guise of an amendment to defendant’s charter. (Lord v. Eq. Life Assur. Society, 194 N. Y. 212; City of New York v. Bryan, 196 N. Y. 158; Stockton v. B. & N. Y. R. Co., 32 Fed. Rep. 9; People ex rel. Postal T. C. Co. v. Tax Comrs., 224 N. Y. 167; Central Pacific R. R. Co. v. California, 162 U. S. 91; Southern Pacific R. R. Co. v. U. S., 183 U. S. 519; People v. O’Brien, 111 N. Y. 1; Hill v. G. R. R. Co., 41 Fed. Rep. 610.)</p>

The nature of the action and the facts, so far as material, are stated in the opinion. Plaintiffs are entitled to have the decree of the Court of Appeals fulfilled. (Sayre v. State, 128 N. Y. 622.) Plaintiff is entitled to recover all, not forty per cent of rents collected by defendants from the Field farm during the period 1899 to 1911. (Rudiger v. Coleman, 199 N. Y. 347.) Plaintiffs should be granted recovery for rents collected from the Horton tract.

state industrial commission made under the Workmen’s Compensation Law. The facts, so far as material, are staged in the opinion. At the time of the accident the dejeeased was not engaged in any occupation enumerated wnder section 2 of the Workmen’s Compensation Act, j defined as hazardous employments. (Wincheski v. Morris, 179 App. Div. 600.) At the time of the accident deceased was not engaged in doing any work incidental to a hazardous employment.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 30, 1919, which affirmed an order of Special Term exempting the relator from taxation of its real property in the city of Buffalo. The facts, so far as material, are stated in the opinion.’ Relator is not entitled to exemption from taxation under section 4, subdivision 7, of the Tax Law. (People ex rel. Andrews v. Cameron, 140 App.

The nature of the action and the facts, so far as material, are stated in the opinion. The evidence failed to establish a cause of action within the provisions of the Federal Employers’ Liability Act. (Lehigh Valley R. R. Co. v. Barlow, 244 U. S. 183; New York Central R. R. Co. v. White, 243 U. S. 188; Raymond v. Chicago, Mil. & St. P. Ry.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 15, 1919, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term after rendition of a verdict in favor of plaintiff upon a question of fact submitted to the jury. The nature of the action and the facts, so far as material, are stated in the opinion. This is an action at law for damages.

The nature of the action and the facts, so far as material, are stated in the opinion. The appellant presented evidence that was within the issues and required the submission of the case to the jury, which could properly find that the scows were chartered for the respondent’s account under the guaranty. (Sundheimer v. City of New York, 176 N. Y. 495; Place v. N. Y. C. & H. R. R. R. Co., 167 N. Y. 345; Plyer v. German-American Ins. Co., 121 N. Y. 689; Southern Ry.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 2, 1918, unanimously affirming a judgment in favor of defendant entered upon the dismissal of the complaint by the court at a Trial Term. The nature of the action and the facts, so far as material, are stated in the opinion.

The facts, so far as material, are stated in the opinion. There was no evidence of any accidental injury at any time. (Matter of Hansen v. Turner Const. Co., 224 N. Y. 331; Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326; Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Vincent v. Taylor, 180 App. Div. 818; Lyon v. Windsor & Davis, 173 App.

This action is brought to have adjudged that certain tracks across a public highway described in the complaint constitute a purpresture, a public nuisance and a continuing trespass and that they obstruct and interfere with the rights of the public in said highway, and to compel the defendant forthwith at its expense to remove said tracks and restore the highway to the condition in which it was prior to its construction of said tracks.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered October 24, 1917, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term decreeing that the plaintiff was the sole owner in fee entitled to the possession of certain real property; that the defendant Bickhardt was wrongfully in possession of that portion of the property which encroached by a building upon plaintiff’s land; that defendant Bickhardt and all persons claiming under or through him had no right or title in the plaintiff’s land, fixing the boundary fine between the plaintiff’s and the defendant’s premises and awarding damages and costs.</p> <p>The facts, so far as material, are stated in the opinion.</p> <p>The defendant Bickhardt has acquired title to the locus in quo by adverse possession. (Code Civ. Pro. §§ 371, 372; Washburn on Real Prop. [6th ed.] 130, § 1968; Crary v. Goodman, 22 N. Y. 170; Brinner v. Long Wharf, 5 Pick. 131; French v. Pierce, 8 Conn. 439; Caulfield v. Clark, 17 Ore. 473; Barnes v. Light, 116 N. Y. 35; Baker v. Oakwood, 123 N. Y. 16; 49 Hun, 416; Stillwell v. Boyer, 36 App. Div. 424.) The portion of the premises which was originally part of Berrian avenue is in no different situation as to acquisition of title thereto by adverse possession than the other portion of the land. (Bliss v. Johnson, 94 N. Y. 235; Thompson v. Burhans, 79 N. Y. 93; Driggs v. Phillips, 103 N. Y. 77; Bissel v. N. Y. C. R. R. Co., 23 N. Y. 61; Wager v. T. U. R. R. Co., 25 N. Y. 529.) The seizins from Riedel to Bickhardt are so tacked together as to make a continuous possession. (Vandall v. St. Martin, 42 Minn. 163; Kepley v. Scully, 185 Me. 52; 3 Washburn on Real Prop. [9th ed.] 133, § 1973; Saith v. Chapin, 31 Conn. 530; Bateman v. Jackson, 45 S. W. Rep. 224; City of St. Louis v. Granen, 29 Mo. 593; Butler v. Barnes, 60 Conn. 170; Wills v. Sanders, 19 J. & S. 384.) The deed made by the widow and devisees of Riedel in 1916 to correct the deed of 1906 is not void for champerty. (Fowler’s Real Prop. Law, 888, 889; Dawley v. Brown, 79 N. Y. 390.)</p> <p>Defendant Bickhardt has not acquired title to the locus in quo by adverse possession. (Smith v. Rich, 80 Hun, 287; Sillman v. Payne, 70 Hun, 459; Buffalo R. R. Co. v. Collins, 41 App. Div. 8; Ridley v. Walter, 153 App. Div. 65; Staples v. Schnackenberg, 148 App. Div. 161; Cutting v. Byrnes, 57 App. Div. 185; Kueller v. Lang, 137 N. Y. 589.) Defendant Bickhardt has not acquired title to the part of the premises which was originally part of Berrian avenue by adverse possession. (Driggs v. Phillips, 103 N. Y. 77.) The deed made in 1916, just before the trial, does not help the title of the defendant Bickhardt. (Bliss v. Johnson, 94 N. Y. 235; Staples v. Schnackenberg, 148 App. Div. 161; Crary v. Goodman, 22 N. Y. 176; Green v. Horn, 207 N. Y. 489.)</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 31, 1919, which aflormed an order of Special Term denying a motion to dismiss a writ of certiorari. The following questions were certified: “ 1.

<p>Cross-appeals from a judgment of the Appellate Division of the Supreme Court- in the fourth judicial department, entered February 1, 1919, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.</p> <p>Whitney, being the owner of all the lands within and on both sides of Thirteenth street, could deal with it as he chose and extinguish the easement (if any) regardless of anything contained in these old deeds. (Reis v. City of New York, 188 N. Y. 58; Matter of Eleventh Street, 71 N. Y. Supp. 824; 169 N. Y. 607; Matter of Fifth Street, 71 N. Y. Supp. 644.)</p> <p>The Olean Land and Hydraulic Company made an offer to dedicate all of the streets shown on the Gosseline map, filed in the Cattaraugus county clerk’s office December 28, 1836, which has never been revoked, and consequently the municipality was at liberty at the time of the commencement of this action to accept Thirteenth street as a public highway. (Wyman v. Mayor, etc., 11 Wend. 487; Child v. Chappell, 9 N. Y. 246; City of Niagara Falls v. N. Y. C. R. R. Co., 41 App. Div. 93; 168 N. Y. 614; Bridges v. Wyckoff, 67 N. Y. 130; Buffalo Ry. Co. v. Hoyer, 214 N. Y. 236.) Private easements existed in Thirteenth street in favor of two of the petitioners for the opening of the street, namely, Holmes and Foley. (Village of Olean v. Steyner, 135 N. Y. 341; Lord v. Atkins, 138 N. Y. 184; Haight v. Littlefield, 147 N. Y. 338; Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Welch v. Taylor, 134 N. Y. 450; Reis v. City of New York, 188 N. Y. 58; Buffalo Ry. Co. v. Hoyer, 214 N. Y. 236; Bridges v. Wyckoff, 67 N. Y. 130; Lowenburg v. Brown, 79 App. Div. 414.) Even assuming that the Zocíís m quo is not a public highway, nevertheless plaintiff’s premises are burdened with easements of Holmes and Foley, and consequently the defendant’s act in seeking to open a public street across it would cause merely nominal damage to the plaintiff. A court of equity will not grant an injunction where the damages flowing from the threatened injury are purely nominal, especially where the defendant is engaged in the doing of a public work. (Village of Olean v. Steyner, 135 N. Y. 341; McCann v. Chasm Power Co., 211 N. Y. 301; Whalen v. Union Bag & Paper Co., 208 N. Y. 1; McClure v. Leaycraft, 183 N. Y. 36; Knoth v. Manhattan Ry. Co., 187 N. Y. 43; 16 Am. & Eng. Ency. of Law [2d ed.], 351, 352; Hart v. McLaury, 121 N. Y. 636; Jones v. D., L. & W. R. R. Co., 208 N. Y. 40.) There has been no abandonment by nonuser because such an abandonment by a municipality can only be created by unequivocal acts. (Porter v. International Bridge Co., 200 N. Y. 234; Riley v. City of Racine, 51 Wis. 526; Board of Commissioners v. Young, 59 Fed. Rep. 96.)</p>

The facts, so far as material, are stated in the opinion. The admission of the letter in evidence was not error. (I. C. Comm. v. Baird, 194 U. S. 25; People v. Richardson, 222 N. Y. 103; People v. Webster, 139 N. Y. 73; People v. Mullen, 163 N. Y. 312; People v. Tice, 131 N. Y. 651; Chamberlayne on Ev., §§ 448, 523; People v. Dorthy, 156 N. Y. 237; Stokes v. Johnson, 57 N. Y. 673.) The hearsay rule has no application.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 9, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. . The nature of the action and the facts, so far as material, are stated in the opinion. The trial court erred in finding that a valid lien was established under section 5 of the Lien Law. (Cons.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered October 17, 1919, which affirmed an order of Special Term denying a motion for a warrant of arrest and commitment of Stephen J. Hanley. The facts, so far as material, are stated in the opinion. The courts below have erred in respect to the meaning and intent of section 119, Greater New York charter.

dismissal of the complaint. The nature of the action and the facts, so far as material, are stated in the opinion. The judgment of foreclosure was not a.bar. (Bell v. Merrifield, 109 N. Y. 202; Dawley v. Brown, 79 N. Y. 390; Frost v. Koon, 30 N. Y. 428; Merchants Bank v. Thompson, 55 N. Y. 11; Jacobie v. Mickel, 144 N. Y. 237; Code Civ. Pro. § 1207; Clapp v. McCabe, 155 N. Y. 525; Mathot v. Turtel, 102 App. Div. 426; Lawrence Mfg.

Appeal, by permission, from a judgment of -the Appellate Division of the Supreme Court in the first judicial department, entered October 28, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

The nature of the action and the facts, so far as material, are stated in the opinion. The provision of the Interstate Commerce Act requiring equality of service does not apply as between different localities where the circumstances and conditions are substantially different. (Boston C. of C. v. L. S. & M. S. Ry. Co., 1 I. C. C. R. 436; W. B. Assn. v. A., T. & S. F. Ry.

The nature of the action and the facts, so far as material, are stated in the opinion. The Appellate Division erred in finding that the plaintiff was guilty of contributory negligence as a matter of law. (Knapp v. Barrett, 216 N. Y. 226; Mullen v. Schenectady Ry. Co., 214 N. Y. 300; Breese v. Nassau E. R. Co., 162 App. Div. 455; Schoenfeld v. N. Y. Rys., 88 Misc. Rep. 21; Moebus v. Herrman, 108 N. Y. 349; Baker v. Close, 204 N. Y. 92; Hickman v. Schimper & Co., 125 App.

The nature of the action and the facts, so far as material, are stated in the opinion. There is no finding of fact that there was an oral consent to the transfer, but, even so, such oral consent was ineffectual. (Northam v. D. C. Mutual Ins. Co., 166 N. Y. 319; Baumgartel v. Ins. Co., 136 N. Y. 547; Armstrong v. Ins. Co., 130 N. Y. 560; Messelback v. Norman, 122 N. Y. 578; Gray v. Germania Fire Ins. Co., 155 N. Y. 180; Moore v. Ins.

18, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. No negligence was shown on the part of the defendant. (Stelter v. Cordes, 146 App. Div. 300; Lusk v. Peck, 132 App. Div. 426; McKeon v. P. & G. Mfg. Co., 154 App. Div. 740; Kline v. Abraham, 178 N. Y. 377.) The defendant was negligent in omitting to observe the duty imposed upon it by law. (Lusk v. Peck, 133 App.

The nature of the action and the facts, so far as material, are stated in the opinion. A municipality has a right to incumber the sides of its streets for any purpose that is reasonable, useful and necessary to the public, provided such incumbrance is reasonable and does not interfere with the passage of the public. (Dougherty v. Trustees, 159 N. Y. 154; Sautter v. Utica City Bank, 45 Misc. Rep. 15; Kent v. Town of Patterson, 80 Misc.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 8, 1918, unanimously affirming a judgment in favor of defendants entered • upon a' dismissal of the complaint by the court on trial at Special Term. The nature of the action and the facts, so far as material, aré stated in the opinion.

The nature of the action and the facts, so far as material, are stated in the opinion. A modification of a detail of performance of a contract by arrangement subsequently and for valuable consideration made between the parties, does not constitute a waiver of any of the provisions of the contract. (Penn.

<p>Beal estate broker — commissions for renting property — when broker entitled only to commissions on rental actually received by lessor.</p> <p>In an action brought by a real estate broker for commissions upon the rental of certain premises for a term of years, the evidence was sufficient to warrant the jury in finding that plaintiff produced a party who was acceptable to defendant as a tenant, but was not sufficient to establish that the prospective tenant, in the first instance, was prepared to accept or comply with the terms imposed by defendant, and communicated to the broker. The defendant and the prospective tenant thereupon entered into an agreement by which the premises were to be used as a hotel, from the net annual income of which defendant was to be paid a certain sum, less than the rental he wanted, and a certain percentage of the net income, over a designated amount, for a fixed term of years. It appears that the business was unsuccessful and discontinued after two years, and that the defendant did not secure rental save to a lesser amount and suffered loss. Held, that the broker is not entitled to commissions based on estimated profits covering a period of years, in addition to the commission on the rental agreed upon and received by defendant.</p>

The facts, so far as material, are stated in the opinion. A failure to comply literally with the direction of the governor concerning the publication of notice of the Extraordinary Term does not affect the validity of the term or impair its jurisdiction. (People ex rel.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiff’s claim was not presented within six months after the date of the termination of the defendant’s liability on the bond in suit and for that reason plaintiff was not entitled to judgment. (Home Ins.

The nature of the action and the facts, so far as material, are stated in the opinion. When respondent was injured, met with his accident, this taxicab was not a public conveyance, was not provided by a common carrier, and was not then a public conveyance for passenger service. The owner was not a common carrier. (Darnell v. F. & C. Co., 46 Ins. L. J. 523; Anderson v. F. & C. Co., 100 Misc. Rep. 411; Terminal Taxicab Co. v. Kutz, 241 U. S. 252; Dorr v. N. J. St. Nav.

The nature of the action and the facts, so far as material, are stated in the opinion. The plaintiffs as the owners of a mortgage upon the premises made prior to the execution of the conditional bill of sale herein, were bound by its conditions. (Bernheimer v. Adams, 175 N. Y. 472; Duffus v. Howard Furnace Co., 8 App. Div. 567; Fitzgibbons Boiler Co. v. Manhasset Realty Corporation, 125 App. Div. 767; 198 N. Y. 517; Colwell Co. v. Home T. J. Co., 154 App.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 19, 1919, unanimously affirming an award of the state industrial commission made under the Workmen’s Compensation Law. Claimant’s son died from the results of a fall from a stepladder he was using in the course of his employment.

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 21, 1917, which affirmed an order of Special Term vacating and setting aside a judgment heretofore entered in this action together with the stipulation and agreement upon which the said judgment was entered and certain deeds executed pursuant to such judgment.

Appeal, by permission, from two judgments of the Appellate Division of the Supreme Court in the second judicial department, entered March 13, 1919, and June 12, 1919, respectively, unanimously affirming a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term without a jury.

On the 15th day of March, 1916, plaintiff, respondent, while crossing Lexington avenue, from the northwest side to the northeast side, was run into and struck down by a north-bound Lexington avenue car operated by the defendant.

<p>Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered February 28, 1918, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for loss of services of plaintiff’s wife resulting from personal injuries alleged to have been received by her through the negligence of defendant, in that she was run down by one of its cars while she was crossing Lexington avenue at its intersection with Twenty-third street in the borough of Manhattan.</p>

The action was to recover damages for personal injuries sustained in a collision between a taxicab in which the plaintiff was riding and a motor ambulance owned by the defendant, claiming that such collision was due to the negligence of the driver of said ambulance.

<p>Motion for re-argument.</p>

Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered December 30, 1919, which affirmed an order of Special Term adjudging that, under subdivision 7 of section 4 of the Tax Law, the relator’s real property was exempt from taxation and setting aside an assessment thereon for purposes of taxation for the year 1918.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered October 18, 1919, which reversed an order of Special Term declaring invalid and ordering canceled a caucus or primary held in and for the town of Hanover and directing the holding of a primary in place of the one declared invalid.</p>

The action was brought to recover a balance shown to be due by the final certificate signed by the engineer in charge for work done under a contract between the plaintiff’s assignor and the city of New York for the construction of portions of the Esopus division of the Catskill aqueduct in Ulster county.

The action was brought to recover damages for personal injuries sustained by the plaintiff while employed by defendant in the state of Pennsylvania.

Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered May 11, 1918, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. The defendant issued an insurance policy to the plaintiff indemnifying the plaintiff for loss of time by sickness. The plaintiff claimed that he was entitled to the amount sued for by reason of his illness.

The defense was that defendant had been legally divorced prior to her second marriage. The trial court held that said divorce was illegal and void upon the ground that it was obtained without personal service of process upon the husband and that he had not voluntarily appeared in that action.

<p>Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 23, 1919, which reversed an order of Special Term sustaining a writ of habeas corpus, dismissed said writ and remanded relator to custody.</p>