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city of New York, imposed pursuant to chap-, in the condition of the ways, works, machinery ter 729 of the Laws of 1915, which statement and plant. and that defendant failed to comply shall include the assessed valuation of real with section 81 of the Labor Law (Consol. property as equalized by said board and the Laws, c. 31), in that the aforesaid switch was assessed valuations of personal property, ex not properly guarded. The complaint further clusive of the assessed valuations of bank alleges due notice of the time, place and cause stock for 1914, for each of said counties and of the death pursuant to the Labor Law. The transmit to the state comptroller such state answer denies the negligence and sets up the ment. Lamar Hardy, Corp. Counsel, of New defenses of contributory negligence and assumpYork City (William H. King, of New York tion of risk. Benjamin Patterson and George City, of counsel), for appellant. Egburt E. Bell, both of New York City, for appellant. Woodbury, Atty. Gen. (Harold J. Hinman and Charles K. Carpenter and Joseph V. GallaEdward G. Griffin. Deputy Attys. Gen., of gher, both of New York City, for respondent. counsel), for respondents.

PER CURIAM. Judgment affirmed, with
PER CURIAM. Order affirmed, with costs, costs.
on authority of People ex rel. City of Geneva WILLARD BARTLETT, C. J., and HIS-
V. Board of Supervisors, 188 N. Y. 1, 80 N. COCK, CHASE, COLLIN, HOGAN, CAR-
E. 381.

DOZO, and POUND, JJ., concur.
WILLARD BARTLETT, C. J., and CHASE,
COLLIN, CUDDEBACK, HOGAN, CARDO-
Zo, and POUND, JJ., concur.

COYNE, Appellant, v. VALLEY STREAM
REALTY CO., Respondent. (Court of Ap-

peals of New York. Nov. 21, 1916.) Appeal CONKLIN. Appellant, v. UNITED CON- from a judgment, entered May 20, 1915, upon STRUCTION & SUPPLY CO.

et al., Respond- an order of the Appellate Division of the Suents. (Court of Appeals of New York.

preme Court in the First Judicial Department

Oct. pallate Division of the Supreme Court in ed upon a decision of the court at a Trial 17, 1916.). Appeal from a judgment of the Ap-|(166. App. Div. 696, 152 N. Y. Supp. 273), re

versing a judgment in favor of plaintiff, enterthe First Judicial Department (166 App: Term without a jury and directing a dismissal Div. 284, 151 N. Y. Supp. 624), entered of the complaint. This action was brought to February 25, 1915, affirming a judgment in favor of defendants entered upon a dismis, the defendant under a contract dated June 22,

recover moneys paid by plaintiff's decedent to sal of the complaint by the court on trial | 1907, made between the defendant and said at Special Term in an action for the cancel- decedent for the

purchase on installment pay; lation of certain capital stock of the defendments of lots at Valley Stream, which contained ant United Construction & Supply Company, the provision that

"in the event of the death issued to Samuel M. Jarvis, originally a de- of the party of the second part before the comfendant, for an accounting between the plain-pletion of this contract, and provided no paytiff and the defendant corporation and to compel said Jarvis to account to it for dividends ment hereunder is in arrears, the party of the received by him, to impress a trust on certain executors or administrator of the party of the

first part shall, upon demand, pay to the heirs, sums of money and securities received by Jarvis from the defendant company and for an second part, upon the proper proof of such accounting between the plaintiff and said Jarvis. death, with full surrender and release of this Nathan L. Miller, of Syracuse, for appellant. contract and all rights thereunder, all money Edward E. McCall , Henry Wollman, and Wil: paid hereunder with interest at 4 per cent.

Defendant contended that by liam J. Patterson, all of New York City, for per annum," respondents.

reason of the failure of plaintiff's decedent to

make all the monthly payments on the dates PER CURIAM. Judgment affirmed, with provided for by the contract there were pay; costs.

ments in arrears at the date of her death and CHASE. COLLIN, CUDDEBACK. HOGAN, plaintiff could not, therefore, recover in this and CARDOZO, JJ.,

WILLARD action. Richard B. Hand and J. Baldwin BARTLETT, C. J., not voting.

Hand, both of New York City, for appellant.
Benjamin Reass, Hugo Hirsh, and Emanuel
Newman, all of Brooklyn, for respondent.

PER CURIAM. Judgment affirmed, with CONKLIN, Appellant, v. UNITED CON- costs. .STRUCTION & SUPPLY CO. et al., Respond WILLARD BARTLETT, C. J., and HISents. (Court of Appeals of New York. Nov. COCK, CHASE, COLLIN, HOGAN, CARDO28, 1916.)

Zo, and POUND, JJ., concur.
PER CURIAM. Motion for reargument de
nied, with $10 costs. See 219 N. Y.
N. E. 1063.

D'ARCY, Respondent, v. INTERBOROUGH

RAPID TRANSIT CO., Appellant. (Court of CONOSCENTI. Respondent, v. HOLBROOK, from an order of the Appellate Division of the

Appeals of New York. Oct. 31, 1916.) Appeal CABOT & ROLLINS CORP. Appellant. Supreme Court in the First Judicial Depart(Court of Appeals of New York. Nov. 28, ment (165 App. Div. 757, 152 N. Y. Supp. 1916.)

500), entered January 28, 1915, reversing a Appeal from a judgment of the Appellate judgment in favor of defendant entered upon a Division of the Supreme Court in the First dismissal of the complaint by the court at a Judicial Department (169 App. Div. 923, 154 Trial Term and granting a new trial in an N. Y. Supp. 1116), entered July 2, 1915, affirm- action to recover for the death of plaintiff's ing a judgment in favor of plaintiff entered up- intestate alleged to have been occasioned on a verdict in an action to recover for the through the negligence of the defendant, a comdeath of plaintiff's intestate alleged to have mon carrier, in running a train in the reverse been occasioned through the negligence of de direction, i. e., southerly, at high speed and fendant, his employer. The complaint alleges without warning past a subway station platthat plaintiff's intestate was engaged in con- form for north-bound trains, striking and killveying steel bars which came in contact with an ing intestate, while she, a passenger on said unguarded electric switch and deceased re platform, was looking over its edge for a ceived an electric shock which instantly killed north-bound train. B. H. Ames, Frederick Alhim, and that such death was caused by defects lis, and James L. Quackenbush, all of New

concur.

, 114

York City, for appellant. Ralph Gillette, of
New York City, for respondent.

DECKER, Respondent, v. CONSELSEA, AP PER CURIAM. Order affirmed and judg- pellant. (Court of Appeals of New York. Dec. ment absolute ordered against appellant on the 28, 1916). Appeal from a judgment of the Apstipulation, with costs in all courts.

pellate Division of the Supreme Court in the WILLARD BARTLETT. C. J., and AIS- Second Judicial Department (166 App. Div. COCK, CHASE, COLLIN, CUDDEBACK, 941, 151 N. Y. Supp. 1112), entered February CARDOZO, and 'POUND, JJ., concur.

1, 1915, affirming a judgment in favor of plaintiff entered upon the report of the referee.

Charles Conselyea and the defendant are brothDE BEKKER v. FREDERICK A. STOKES i ers.

Until April of 1905 they were in business CO. et al. (Court of Appeals of New York together at 333. Graham avenue, Brooklyn, N. Oct. 24, 1916.) Appeal from Supreme Court, X.. They inherited considerable property from Appellate Divison, Second Department.

Ac

their parents, John Conselyea and Sarah Contion by Leander J. De Bekker against Freder- selyea. In April of 1905 the brothers quarick a. Stokes Company and others. From an reled. Charles, the incompetent, shot the ap order of the Appellate Division of the Supreme the first degree. He was tried in the County

Charles was indicted for assault in Court (172 App. Div. 960, 157 N. I Supp: Court of Kings County and convicted. After 576), modifying and affirming an interlocutory judgment of the Special Term awarding plain the assault and before his trial the public of. tiff equitable relief, defendants appeal by per- ficials came to the conclusion that there was mission; the Appellate Division certifying ques.

some question as to his sanity. An investigations. Order affirmed, and questions answered. tion was made and he was found sane. Then Plaintiff, the author of an encyclopedia, enter- he was tried. He was sentenced to Sing Sing ed into a contract with the defendant' for its prison for not less than two nor more than

five publication, by the terms of which he was to be

years, His term of imprisonment began paid certain royalties. This action was for on the 20th day of July, 1905. On March 10, an accounting. The following questions were

1906, he was transferred to Dannemora State certified: "(1) Was the contract made be- Hospital because he had become insane. He tween the defendants, Frederick A. Stokes has been in Dannemora State Hospital ever Company and the University Society, Incor

since. Plaintiff, having been appointed comporated, on October 5, 1910, 'made in violation mittee of the estate of the incompetent, has of the plaintiff's rights under or reserved to the brought this

action for an accounting. See, alplaintiff by his contract with the defendant so: 215 N. Y. 720. 109 N. E. 1072. Albert E. Stokes Company, dated the 19th day of July, Richardson, of New York City, for appellant. 1907? (2) Did the defendant Frederick X: Rawdon W. Kellogg, of Jamaica, for respondent. Stokes Company, by the payment of $150 to PER CURIAM. Judgment affirmed, with the plaintiff under clause E of contract, acquire costs. such complete rights in said work under the contract of July 19, 1907, as entitled the de- COCK, CHASE, COLLIN, OUDDEBACK,

WILLARD BARTLETT, C. J., and HISfendant Frederick A. Stokes Company to con- HOGA'N, and POUND, JJ., concur. tract with the defendant University Society, Incorporated, for the latter defendant to sell the work of the plaintiff in the name of the University Society, Incorporated, as two volumes of a ten-yolume set known as the Standard

DE FILIPPIS v. FALKENBERG et al. Music Encyclopedia bearing the imprint of the Court of Appeals of New York. Oct. 24, 1916.) University Society, Incorporated, without the Appeal from an order of the Appellate Division imprint of the Frederick A. Stokes Company, of the Supreme Court in the Third Judicial De and without the name of the plaintiff annearing partment (170 App. Div. 153, 155 N. Y. Supp. thereon in any way? (3) Was the making of 761), entered September 14, 1915, which reversed the agreement between the defendants, Fred- an award of the State Workmen's Compensation erick A. Stokes Company and the University Commission. The claimant while in the emSociety, Incorporated, followed by sales by the plop. of defendant Falkenberg went to the University, Society, Incorporated, of the work toilet, and being struck on the arm by someof the plaintiff as two volumes of a set of ten article had come from, when a girl in the ad

thing looked through a crack to see where the volumes known as the 'Standard Music Encyclopedia,' such a violation of the rights of the joining toilet thrust scissors in the crack into plaintiff under or reserved by his contract with her eye, causing a loss of the use of the eye. the defendant Frederick A. Stokes Company,

The question was whether the injury arose out dated the 19th day of July, 1907, as to warrant of and in the course of the employment. Ege a judgment directing a recission of such con- Deputy Atty. Gen., of counsel). for appellant.

burt E. Woodbury, Atty. Gen. (E. C. Aiken, tract as of the 5th day of October, 1910, the Otto V. Parker and Henry Siegrist, both of date of the contract between the University New York City, for respondents. Society, Incorporated, and the Frederick A. Stokes Company? (4) Did the plaintiff, under PER CURIAM. Order affirmed, with costs his agreement with the defendant Frederick A. against the State Industrial Commission. Stokes Company, dated the 19th day of July, 1907, retain any residuary interest in the work COCK, CHASE, COLLIN, CUDDEBACK,

WILLARD BARTLETT. C. J., and HIS. therein described other than the privileges con- HOGAN, and CARDOZO, JJ., concur. tained in article fifth, subdivisions A and B. and a right to pecuniary compensation from said defendant after such work had been coprrighted in the name of the defendant Frederick A. Stokes Company, and the work had been pub.al., Appellants.

DE GROFF, Respondent, V. PANSINI et lished by sales of copies thereof?"

Frederick | York.

(Court of Appeals of New

Oct. 10, 1916.) Motion to dismiss Trevor Ilill and Richard Steel, both of New

an appeal from a judgment of the Appellate York City, for appellants. Harold G. Aron, Division of the Supreme Court in the Second of New York City, for respondent.

Judicial Department (157 N. Y. Supp. 1122), PER CURIAM. Order affirmed, with costs. I entered March 20, 1916, affirming a judgment in First, third, and fourth questions certified an- favor of plaintiff entered upon a decision of swered in the affirmative; second question in the court on trial at Special Term in an action the negative.

to foreclose a mortgage. The motion was made HISCOCK, CHASE, CUDDEBACK, HO. upon the grounds that the Appellate Division GAN, CARDOZ). and POUND, JJ., concur. had unanimously decided that the findings of

exceptions were frivolous, that the record presented no question for review, and that the ap DOPPSTADT, Respondent, V. NEW YORK peal was taken solely for purpose of delay. CENT. R. CO., Appellant. (Court of Ap: Frederick S. Martyn, of Brooklyn, for the mo-peals of New York. Nov. 21, 1916.) Appeal tion. Lyon C. Norris, of Brooklyn, opposed. I from a judgment of the Appellate Divi

PER CURIAM. Motion denied, with $10 sion of the Supreme Court in the First Judicial costs.

Department (168 App. Div. 942, 152 N. Y. Supp. 1108), entered May 12, 1915, affirming judgment in favor of plaintiff entered upon a

verdict in an action to recover for the death of DI PAOLO et al.. Respondents, v. THOMAS plaintiff's intestate alleged to have been occaCRIMMINS CONTRACTING CO. et al., Ap- sioned through the negligence of the defendant, pellants. (Court of Appeals of New York. his employer. The complaint states two causes Oct. 24. 1916.). Appeal from an order of the of action, one under the Employers Liability Appellate Division of the Supreme Court in the Act of the state of New York (Consol. Laws. c. Third Judicial Department (158 N. Y. Supp: 31, SS 200-204), and the other the federal Em1113), entered May 11, 1916, which affirmed ployers Liability Act (Act April 22, 1908. C. an award of the State Industrial Commission 149, 35 Stat. 65 (U. S. Comn. St. 1913, $8 8657under the Workmen's Compensation Law for 8663]). The answer admits that the plaintiff's the death of Vincenzo Di Paolo, who was em

decedent was employed at the time by defendployed by the defendant contracting company ant as a freight brakeman and met with the as a foreman on work being done in one of the accident as a result of which he died, and that Brooklyn subways. He was struck by a train and killed a few minutes after the close of his at the time of the accident both the plaintiff's deday's work. The question was as to whether cedent and the defendant were engaged in inter

state commerce, but it denies any negligence on the accident arose out of and in the course of the part of the defendant, and alleges contribuhis employment. George A. Blauvelt. Francis tory negligence and assumption of risk. RobJ. MacIntyre, and Maurice J. O'Callaghan, ert A. Kutschboch and Alexander S. Lyman, all of New York City, for appellants. Egburt both of New York City, for appellant. Don R. E. Woodbury, Atty. Gen. (E. C. Aiken. Deputy Almy. William S. Evans, Samuel Orr, and WilAtty. Gen., of counsel), for respondents.

liam H. Woolley, all of New York City, for rePER CURIAM. Order affirmed, with costs. spondent.

HISCOCK, CHASE. COLLIX, CUDDE PER CURIAM. Judgment affirmed, with RACK, HOGAN. and CARDOZO, JJ., concur. costs. WILLARD BARTLETT, C. J., dissents.

HISCOCK, CHASE, COLLIN, HOGAN,
CARDOZO, and POUND, JJ., concur. WIL

LARD BARTLETT, C. J., absent.
In re DONIHEE. (Court of Appeals of
New York. Dec. 12, 1916.) Appeal from
an order of the Appellate Division of the Su-

DUFFEY, State Commissioner of Highways, preme Court in the Second Judicial Depart. Appellant, v. CLARK, County Treasurer, Rement (158 N. Y. Supp. 1113), entered May 12, spondent. (Court of Appeals of New York. 1916, which affirmed an order of Special Term Oct 24, 1916.) Appeal from an order of granting a motion made by the petitioner herein the Appellate Division of the Supreme Court to cancel the assessment levied on lot No. 24 in in the Fourth Judicial Department (159 block No. 7053, section 21, on the land map of X. Y. Supp. 1110), entered May 23, 1916, which the county of Kings, for benefit to said prop- affirmed an order of Special Term denying a erty abutting West Twenty-Seventh street by motion for a peremptory writ of mandamus to reason of the acquisition of the title to the land compel the county treasurer of Onondaga counin said street by the city of New York. Lamar ty to pay a draft drawn by the commissioner of Hardy, Corp. Counsel, of New York City. (Paul highways to P. H. Murray, contractor, for $3,Jones, of New York City, of counsel), for ap- 855.94, representing the final payment on acpellant. Arthur J. Stern, of Brooklyn, for recount of the contract for the construction of the spondent.

county highway known as No. 670, situate in PER CURIAM. Order affirmed wth costs. the town of Salina, Onondaga county, N. Y., WILLARD BARTLETT, C. J., and CHASE, and alleged to be the remainder of the contract COLLIN, CUDDEBACK, 'HOG'AN, CARDO price due and owing from the county in the first ZO, and POUND, JJ., concur.

instance, but ultimately chargeable to the said town, as the final payment on account of the contract price for the improvement of said highway. There was no controversy as to the facts

involved, the question being whether the county DONOHUE v. CITY WATER POWER CO. of Onondaga in the first instance, and the town et al. (Court of Appeals of New York. of Salina ultimately, were liable for the amount Dec. 28, 1916.) Appeal from a judgment of of said draft. Egburt E. Woodbury, Atty. Gen. the Appellate Division of the Supreme (Edmund H. Lewis, of Syracuse, of counsel), Court in the First Judicial Department (166 for appellant. Ray B, Smith, of Syracuse, for App. Div. 599, 152 N. Y. Supp. 61), entered May respondent. 26, 1915, affirming a judgment in favor of defendants entered upon a dismissal of the com

PER CURIAM. Order affirmed, with costs. plaint by the court on trial at Special Term in an HISCOCK, CHASE, CUDDEBACK, HO action by the receiver of an insolvent domestic GAN, CARDOZO, and POUND, JJ., concur. corporation to impress a trust on assets of said WILLARD BARTLETT, C. J., absent. corporation alleged to be in the hands of the de. fendants. George H. D. Foster, Lemuel E. Quigg, and Wendell P. McKown, all of New York City, for appellant. Morgan M. Mann, DUNN, Respondent, V. RUPPERT, Appelof New York City, for respondents.

lant. (Court of Appeals of New York. Dec. PER CURIAM.

15, 1916.) Appeal from a judgment of the Judgment affirmed, with Appellate Division of the Supreme Court costs.

in the First Judicial Department (166 App. HISCOCK. CHASE, COLLIN, CUDDE- Div. 390, 151 N. Y. Supp. 662), entered FebBACK, HOGAN, and POUND, JJ., concur. ruary 24, 1915, affirming a judgment in favor WILLARD BARTLETT, C. J., absent. of plaintiff entered upon a verdict in an action

to recover for personal injuries alleged to have, upon a claim that such writing is not the last been sustained by plaintiff through the negli, will and testament of said testator. Benjamin gence of the defendant. The complaint alleged Reass, Albert E. Richardson, Hugo Hirsh, and that plaintiff while driving a wagon_south on Emanuel Newman, all of Brooklyn, for appelThird avenue in the city of New York was lants. Herman S. Bachrach and Clarence G. thrown therefrom and received the injuries com- Bachrach, both of Brooklyn, for respondents. plained of as a consequence of a collision with

PER CURIAM. one of defendant's trucks which was being driv-costs, under last clause of section 1317 of the

Judgment affirmed, with en north on the wrong side of the street in vio- Code of Civil Procedure. lation of city ordinances relating to rules of the road. Grant C. Fox, of New York City, for WILLARD BARTLETT, C. J., and HISappellant. William S. Evans, Jacquin Frank, COCK, CHASE, COLLIN, HOGAN, CARDOand David M. Fink, all of New York City, for | ZO, and POUND, JJ., concur. respondent.

PER CURIAM. Judgment affirmed, with costs, under section 1317 of the Code of Civil ESCOTT, Respondent, v. NATIONAL SUREProcedure.

TY CO., Appellant. (Court of Appeals of New CHASE, COLLIN, CUDDEBACK, HOGAN, York. Nov. 21, 1916.) Appeal from a judg. CARDOZO, and POUND, JJ., concur.

WIL ment of the Appellate Division of the Supreme LARD BARTLETT, C. İ., votes for reversal, Court in the Fourth Judicial Department (169 on the opinion of McLaughlin, J., below.

App. Div. 911, 153 N. Y. Supp. 1113), entered May 18, 1915, affirming a judgment in favor of plaintiff entered upon à verdict directed by the

court. The action is to recover on a bond exDURKEE, Appellant, v. SMITH et al., Re- ecuted by the Empire State Surety Company as spondents. (Court of Appeals of New York. surety for William G. Kerr, as administrator of Nov. 21, 1916.) Appeal from a judgment of Thomas E. Kerr, deceased, dated 16th day of the Appellate Division of the Supreme Court in June, 1911, and a contract of reinsurance bethe Third Judicial Department (171 App. Div. tween said Empire State Surety Company and 72, 156 N. Y. Supp. 920), entered January 11, defendant, National Surety Company, dated Sep1916, affirming judgment in favor of defend-tember 18, 1912. It is undisputed that the adant entered upon a decision of the court at a ministrator embezzled large sums of money from Trial Term without a jury in an action for the the estate, that he was removed by the Erie partition of real property of one Henry Cran- county surrogate and the plaintiff appointed addall, deceased, involving the validity of the will ministratrix de bonis non, and that the amount of said deceased. He gave his entire estate, sub- of the shortage was duly fixed in proceedings ject to a life interest of his widow therein, to before said surrogate... The question was as to trustees named in his will for the purpose of es- the defendant's liability under the reinsurance tablishing and maintaining public parks and a agreement. Franklin Ď. L. Stowe, of Buffalo, library in the city of Glens Falls, and by a for appellant. Hamilton Ward and Emil F. separate clause of his will provided that if any Lein, both of Buffalo, for respondent. devise or bequest should be held void, be gave,

PER CURIAM. Judgment affirmed, with devised and bequeathed the property affected to

costs. the trustees named individually. Plaintiff, one of his heirs at law, having successfully attack

WILLARD BARTLETT, C. J., and HISed the devise to the trustees, for the purposes COCK, CHASE, COLLIN, HOGAN, CARDOof the trust, the court held that the property ZO, and POUND, JJ., concur. went to the trustees individually, free from any trust, overruling the plaintiff's contention that the gift was void as an attempt to create a secret trust to avoid provisions of the law. ESTATES, Respondent, et al. (Court of Ap;

FAIRCHILD, Appellant, V. SCARSDALE See, also, 112 N. E. 1057. Edward M. Angell, James McPhillips, and Beecher S. Clother, all peals of New York. Oct. 24, 1916.). Appeal of Glens Falls, for' appellant. J. A. Kellogg'and from an order of the Appellate Division of the Louis M. Brown, both of Glens Falls, for re- Supreme Court in the Second Judicial Departspondents.

ment (158 N. Y. Supp. 1115), entered May 12,

1916, which affirmed two orders of Special PER CURIAM. Judgment affirmed, with Term: (1) Granting leave to plaintiff to serve costs.

a second amended complaint upon payment of WILLARD BARTLETT, C. J., and HIS- all costs to date, and the giving of a bond to COCK,, CHASE, COLLIN, CUDDEBACK, pay interest and taxes on the $150,000 mortHOGAN, and POUND, JJ., concur.

gage; and (2) denying plaintiff's motion to compel defendant, Scarsdale Estates, to receive plaintiff's first amended complaint in an action

to foreclose a mortgage. Elmer E. Cooley, of ELY V. MEGIE et al. (Court of Appeals of New York City, for appellant. William L. New York, Oct. 31, 1916.)

Rumsey, of New York City, for respondent. PER CURIAM. Motion for reargument de PER CURIAM. Appeal dismissed, with pied, with $10 costs. See 219 N. Y. 112, 113 N. costs. E. 800.

HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ., concur.

WILLARD BARTLETT, C. J., absent. EPSTEIN v. WERBELOVSKY et al. (Court of Appeals of New York. Dec. 28, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial FAIRCLOUGH, Appellant, v. SOUTHERN Department (167 App. Div. 942, 152 N. Y. Supp. PAO. CO. et al., Respondents. (Court of Ap 1109) entered March 31, 1915, which affirmed a peals of New York. Dec. 28. 1916.) Appeal judgment entered upon a verdict decreeing that from a judgment entered March 7, 1916, upon a certain paper writing dated February 28, an order of the Appellate Division of the Su1912, admitted to probate by the Surrogate's preme Court in the First Judicial Department Court of Kings county on May 29, 1913, is the (171 App. Div. 496, 157 N. Y. Supp. 862), which last will and testament of Jacob H. Werbelovsky, reversed an order of Special Term denying a deceased, and enjoining all parties to this action motion to dismiss the complaint and granted

death of plaintiff's intestate alleged to have been | Municipal Court of the City of New York in occasioned through the negligence of defendant. the Eighth Manhattan District, in a case where The intestate, a resident of New Jersey, was in this plaintiff was plaintiff and one Douglas killed in Texas. The plaintiff, a resident of F. Cox, a subscriber, was defendant. The folNew Jersey, was appointed executrix in that lowing question was certified: "Does the fifth state and ancillary letters testamentary issued separate defense set up in the second amended to her in this state. The defendants are foreign answer on its face state facts sufficient to concorporations. It was contended that the action stitute a defense to the cause of action set forth was not one of those which might be brought in the complaint?' Harold S. Deming and against a foreign corporation by a non resident Harry A, Richards, both of New York City, for as specified in section 1780 of the Code of Civil appellant. Jesse W. Tobey, of New York City, Procedure as it existed at the time said action for respondent. was commenced. Ely J. Blair, of New York

PER CURIAM. Order affirmed, with costs ; City, for appellant. Everett J. Esselstyn, J. Ard Haugh wout, and C. P. Williamson, all of question certified answered in the 'negative. New York City, for respondents.

WILLARD BARTLETT, C. J., and CHASE,

COLLIN, CUDDEBACK, CARDOZO, and PER CURIAM. Judgment affirmed, with

POUND, JJ., concur. HOGAN, J., absent. costs, on the authority of Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315, 19 N. E. 625, 2 L, R. A. 636. WILLARD BARTLETT, C. J., and HIS

FITZSIMONS, Respondent, v. ISMAN, Ap COCK, COLLIN, and HOGAN, JJ., concur. pellant. (Court of Appeals of New York. Nov. CHASE and CARDOZO, JJ., dissent, on the 21, 1916.) Appeal from a judgment of the Apground that the amended Code section is retro-pellate Division of the Supreme Court in the active.

First Judicial Department (166 App. Div. 262, 151 N. Y. Supp. 552), entered February 8, 1915,

affirming a judgment in favor of plaintiff enterFIRST CONGREGATIONAL CHURCH OF ed upon a verdict in an action to recover for SCHENECTADY, Appellant, v. FAUST et al., the death of plaintiff's intestate alleged to bave Respondents. (Court of Appeals of New York: been occasioned through the negligence of deOct. 10, 1916.) Motion to dismiss an appeal fendant. On November 1, 1912, at about 1 a. from a judgment of the Appellate Division of m., a fine clear morning, decedent, a police offithe Supreme Court in the Third Judicial De-cer, while in the performance of his duty, was partment (155 N. Y. Supp. 1106), entered No-struck and killed by defendant's automobile provember 22, 1915, affirming a judgment in favor ceeding south on the west drive of Central Park of defendants, entered upon a decision of the between Seventy-Third and Seventy-Fourth court on trial at Special Term.

The motion streets.

Theodore H, Lord and Lyman A. was made upon the ground of failure to file the Spalding, both of New York City, for appellant. return. Frank Cooper, of Schenectady, for James M. Donohue, of New York City, for rethe motion. Robert J. Landon, of Schenectady, spondent. opposed.

PER CURIAM. Judgment affirmed, with PER CURIAM. Motion granted, and appeal costs. dismissed, with costs and $10 costs of motion, unless within 10 days appellant files return and

WILLARD BARTLETT, C. J., and HIS serves cases on appeal, and pays $10 costs of COCK, CHASE. COLLIN, 'HOGAN, CARDO motion,

zo, and POUND, JJ., concur.

FIRST NAT. BANK OF HIGH BRIDGE, N. J., Appellant, v. HUDSON et al., Respond FOOTE, Respondent, V. PENNSYLVANIA ents.' (Court of Appeals of New York. Oct, 10, R. Co., Appellant. (Court of Appeals of New 1916.) Motion to dismiss an appeal from a York. Dec. 28, 1916.) Appeal from a judgment judgment entered February 10, 1915, upon an of the Appellate Division of the Supreme Court order of the Appellate Division of the Supreme in the Fourth Judicial Department (170 App. Court in the First Judicial Department (166 Div. 937, 154 N. Y. Supp. 1121), entered August App. Div. 51, 151 N. Y. Supp. 595), which re: 6, 1915, affirming a judgment in favor of plainversed a judgment in favor of plaintiff entered tiff entered upon a verdict in an action to reupon a verdict and directed a dismissal of the cover for the death of plaintiff's intestate alcomplaint. The motion was made upon the leged to have been occasioned through the neg. ground that the Court of Appeals was without ligence of the defendant, his employer. The comjurisdiction to review the order of reversai and plaint alleges that the death of the plaintiff's the judgment entered thereon.. Jobn G. Saxe, intestate, à railroad brakeman, was caused by of New York City, for the motion. Harold Na- reason of his coming in contact with a freight than, of New York City, opposed.

car alleged to have been placed upon a yard PER CURIAM. Motion denied, with $10 track in the defendant's yards near the City of costs.

Rochester, N. Y., without proper clearance between it and the lead track of the yard, along

which a freight train, in connection with which FISH, Respondent, V. ISELIN, Appellant. the plaintiff was working, passed. The answer (Court of Appeals of New York. Dec. 5, 1916.) of the defendant, after admitting the death of Appeal, by permission, from an order of the the plaintiff's intestate while in its employ as Appellate Division of the Supreme Court in the a yard brakeman, is in the nature of a general First Judicial Department (159 N. Y. Supp. denial. The answer interposes the separate de375), entered June 2, 1916, which affirmed an fenses of contributory negligence and assumed order of Special Term sustaining a demurrer risk. H. J. Adams, Judson S. Rumsey, and to a defense set up in the answer. This is an Frank Rumsey, all of Buffalo, for appellant. action upon a policy of Lloyds insurance for Frederick L. Dutcher, of Rochester, for respond$15,000 issued by 100 subscribers doing business ent. under the name of Subscribers at United States

PER CURIAM. Judgment affirmed, with "Lloyds," upon a yacht named Senta, alleged to

costs. have belonged to the plaintiff and to have been destroyed by fire. The fifth separate defense WILLARD BARTLETT, C. J., and HISsets up, as a bar to this action, a former judg- COCK, CHASE, COLLIN, CUDDEBACK, ment entered in favor of the defendant in the HOGAN, and POUND, JJ., concur.

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