and 138 New York State Reporter

In the matter of Charles MacRae.
ion. Motion denied, with $10 costs.
filed.

No opin- pellate Division, Second Department. April
Order 19, 1907.) Action by Fritz Marienfeld against
Abraham Freundlich and another. No opinion.
Judgment of the Municipal Court unanimously
affirmed, with costs.

MAGNONI, v. GIFUNI. (Supreme Court, Appellate Term. May 16, 1907.) Appeal from Municipal Court, Borough of Manhattan, Second District. Action by Michael Magnoni against Joseph Gifuni. Appeal by defendant from a judgment in favor of plaintiff. Affirmed. Joseph Gifuni, in pro. per. Ely Rosenberg, for respondent.

SEABURY, J. The plaintiff has recovered a judgment for $250 and costs against the defendant. The defendant is an attorney and counselor at law, and the plaintiff was a clerk in his office. The testimony established, and the trial justice found, that the defendant agreed to pay the plaintiff one-half of the defendant's fees, after deducting costs and disbursements, from cases which the plaintiff sent or caused to be sent to the defendant. The evidence clearly shows that the plaintiff caused one Spinella to retain the defendant to collect his claim against the Pennsylvania Railroad Company. This claim, through the efforts of the defendant, was settled for $4.000, and 10 per centum of this sum was paid to the defendant as his fee. Spinella also paid the defendant an additional fee of $100. These facts being proven, the trial justice gave judgment for the plaintiff. The issue upon the trial was solely one of fact, and the evidence sustains the determination of the trial justice. Judgment affirmed, with costs. All concur.

MALHAMI et al., Respondents, v. ABDEL NOUR et al., Appellants. (Supreme Court, Appellate Division, Second Department. May 3, 1907.) Action by George Malhami and another against Selma Abdelnour and others. No opinion. Judgment of the Municipal Court affirmed, with costs.

MALLOY, Respondent, v. STARIN, Appellant. (Supreme Court, Appellate Division, First Department. May 10, 1907.) Action by Walter R. Malloy, an infant, against John H. Starin. D. W. Richards, for appellant. J. M. Gardner, for respondent.

PER CURIAM. Judgment and order affirmed, with costs. Order filed.

HOUGHTON, J., dissents.

MARKELL, Respondent, v. MORSE CHAIN WORKS, Appellant. (Supreme Court, Appellate Division, Third Department. May 8, 1907.) Action by George R. Markell, Jr., against the Morse Chain Works. No opinion. Judgment and order unanimously affirmed, with costs.

MARSON, Respondent, v. FOLEY et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May 1, 1907.) Action by William H. Marson against Frank F. Foley and another. No opinion. Order affirmed, with $10 costs and disbursements.

In re MARX. MANN et al. v. NUSTED et al. (Supreme Court, Appellate Division, Second Department. April 19, 1907.) In the matter of the judicial settlement of the account of Margarethe C. Marx, as executrix of Frederick Marx, deceased. Margarethe C. Marx, individually and as executrix of Frederick Marx, deceased, Ernestina Mann, and others, against Sophie L. C. Nusted and others. No opinion. Motion for reargument denied, with $10 costs.

MAUCHER, Respondent, v. FUCHS, Appellant. (Supreme Court, Appellate Division, Second Department. April 19, 1907.) Action by Elizabeth Maucher, as administratrix, etc., of Joseph Maucher, deceased, against Michael Fuchs.

PER CURIAM. Judgment and order affirmed, with costs.

JENKS, J., dissents.

MAXON, Respondent, v. MILLER et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May 8, 1907.) Action by Abe Maxon against Fred Miller and others.

PER CURIAM. Judgment and order affirmed, with costs.

SPRING and WILLIAMS, JJ., dissent.

In re MAYOR, ETC., OF CITY OF NEW YORK. In re VANDERBILT AVE. (SuMANCE. Respondent, v. HOSINGTON, Ap-preme Court, Appellate Division, First Departpellant. (Supreme Court, Appellate Division, ment. May 24, 1907.) Proceeding in the matFourth Department. May 1, 1907.) Action byter of the mayor, aldermen, and commonalty of Louis C. Mance against George A. Hosington. the city of New York, in relation to Vanderbilt avenue. Appeal from an order confirming PER CURIAM. Motion to dismiss appeal granted, with $10 costs, unless within 40 days John P. Dunn, for appellant. a report of commissioners. Order affirmed. from date of service of a copy of this order; Samuels, for respondent. S. Livingston with notice of entry hereof, appellant file and serve the printed papers on appeal, as required by rule 41, and pay $10 costs of this motion, in which event the motion is denied, without costs.

PER CURIAM. Order affirmed, with $10 costs and disbursements, on the authority of In re Mayor, 95 App. Div. 533, 88 N. Y. Supp.

769.

MARIENFELD, Respondent, v. FREUND- INGRAHAM, J. (dissenting). The respondLICH et al., Appellants. (Supreme Court, Ap-ent has been awarded $2,000 to compensate her

and 138 New York State Reporter

for a private easement that she had in a piece
of property which had been used as a road or
highway, and which she claims has been de-
stroyed because the city of New York had dis-
continued the use of that road as a public high-
way; but the city of New York has not in any
way interfered with respondent's private ease-
ment in this road. It has discontinued the use
of the road as a public road. The respondent
sustained no damage because of such discon-
tinuance, and no damage has been awarded to
her by reason of the discontinuance of the pub-
lic road. She acquired this easement over the
strip of land that was used as a road as ap-
purtenant to the property which she acquired.
No act either of the city or of the public au-
thorities granted her that easement, nor has the
easement which is vested in her, appurtenant
to her estate, been destroyed. Money raised
by taxation is thus paid to the respondent to
relinquish a private easement appurtenant to
her land in the land of another, so that the own-
er of the servient estate can own his land dis-
charged of the easement. When this case was
before this court on the former appeal (95 App.
Div. 533, 88 N. Y. Supp. 769) I dissented from
the order then made, and I dissent from the af-
firmance of the order here granted, for the rea-
sons stated upon that appeal. If chapter 1006,
p. 2037, of the Laws of 1895, affected this re-
spondent's private easement acquired by vir-
tue of her deed conveying the property to her,
I think it was clearly unconstitutional; but
certainly the provision which required the city
of New York to raise by taxation and to pay to
this respondent any sum of money as the value
of the private easement not acquired by the city
and not affecting any property of the city is an
express violation of section 10 of article 8 of
the Constitution, which provides that "no coun-
ty, city, town or village shall hereafter give any
money or property, or loan its money or credit
to or in aid of any individual, association or
corporation;
* nor shall any such coun-
ty, city, town or village be allowed to incur
any indebtedness, except for county, city, town
or village purposes." Money of the city of
New York raised by taxation is devoted in this
case to pay to this respondent the value of a
private easement appurtenant to her property,
and of which property not owned by the city
and in which the city has no interest is servient.
I do not think that such a payment is author-
ized by chapter 1006, p. 2037, of the Laws of
1895; but, if it is, it is clearly a violation of
the Constitution. I therefore dissent.

CLARKE, J., concurs.

MEISNER, Respondent, v. NEW YORK & Q. C. RY. CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 19, 1907.) Action by Charles Meisner against the New York & Queens County Railway Com

pany.

MORRISEY, Respondent, v. ANSTEY. Ap pellant. (Supreme Court, Appellate Division. Second Department. April 19, 1907.) Action PER CURIAM. Judgment of the Municipal by William G. Morrisey against Robert L Court reversed, and new trial ordered, costs to Anstey. No opinion. Judgment of the Munic abide the event, on the ground that the plain-ipal Court unanimously affirmed, with costs. tiff did not make out a case sufficient to uphold the judgment.

MORSE, Respondent, v. HIER, Appellant (Supreme Court, Appellate Division, Fourth Department. September, 1906.) Action by

George H. Morse against John P. Hier. No Ralph S. Rounds, for appellant. Andrew J. opinion. Judgment and order affirmed, with Shipman, for respondent.

costs.

PER CURIAM. The order appealed from should be reversed, and the motion for an open MOSER et al. v. TALMAN et al. (Supreme commission granted, with $10 costs and disCourt, Appellate Division, Second Depart-bursements of the appeal and $10 costs of moment. April 19, 1907.) Action by Mary Moser tion to the appellant to abide the event of the and others against Frederica Talman and oth-action, unless plaintiff files a stipulation within ers. No opinion. Final judgment affirmed, with costs. See 100 N. Y. Supp. 231.

MOSS, Appellant, v. BLANCHARD et al., Respondents. (Supreme Court, Appellate Division, First Department. May 10, 1907.) Action by Alexander Moss against John O. Blanchard and another. G. Ryall, for appellant. D. Emery, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

five days after the service of the order to be entered hereon that it will produce the witnesses Nichols and Austin for examination by the defendant upon the trial of the action, and that it will also produce the books and papers specified in the affidavit of the defendant necessary for the proper examination of said witnesses upon the trial. In the event that the plaintiff makes such a stipulation, and the witnesses or the necessary books and papers are not produced, the trial shall be adjourned pending the issue and execution of a commission. The defendant may then renew this application at the Special Term for a commission. If such stipMOULTON, Respondent, v. ERIE R. CO.,ulation is filed, the order appealed from is afAppellant. (Supreme Court, Appellate Divi- firmed, without costs. sion, Fourth Department. May 1, 1907.)_Action by Bryam Moulton against the Erie Railroad Company. No opinion. Judgment and orders affirmed, with costs.

MOWSON, Appellant, v. SALYERDS et al., Respondents. (Supreme Court, Appellate Division. Fourth Department. September, 1906.) Action by Eliza Mowson against Isaac N. Salyerds and another. No opinion. Judgment affirmed, with costs.

MULROY, Appellant, v. J. D. MURPHY CO., Respondent. (Supreme Court, Appellate Division, First Department. May 10, 1907.) Action by Annie Mulroy, as administratrix, against the J. D. Murphy Company. E. J. Gavegan, for appellant. F. V. Johnson, for respondent. No opinion. Judgment affirmed, with costs. Order filed.

MUNDSCHENCK, Respondent, v. QUICK TRANSIT CO., Appellant. (Supreme Court, Appellate Division, Second Department. May 10. 1907.) Action by Frederick P. Mundschenck against the Quick Transit Company. No opinion. Judgment of the Municipal Court affirmed by default, with costs.

MURRAY, Respondent, v. NARWOOD, Appellant. (Supreme Court, Appellate Division, Second Department. April 19, 1907.) Action by James D'O. Murray against Holmes N. Narwood. No opinion. Judgment and order affirmed, with costs.

NATIONAL BANK OF BATTLE CREEK, v. HOWARD. (Supreme Court, Appellate Division, First Department. May 31, 1907.) Action by the National Bank of Battle Creek against Oliver O. Howard. Appeal by defendant from an order denying a motion for the issuance of a commission to take testimony on oral interrogatories. Affirmed, on conditions.

NEHLS, Appellant, v. NEW YORK BREWERIES CO., Respondent. (Supreme Court, Appellate Division, First Department. May 10, 1907.) Action by George Nehls against the New York Breweries Company. A. J. Talley, for appellant. F. Hulse, for respondent. No opinion. Judgment affirmed, with costs. Order filed.

and 138 New York State Reporter

Department. April 12, 1907.) Action by PEOPLE v. MONTAGUE. (Supreme Court,
Adolph Pavenstedt against the New York Life
Insurance Company. No opinion. Motion
granted. Question certified. Order filed.