Cause IV, Item 73: Delay Due to Bracket Arms, $93.51.

This item is not recoverable under section 12 of the contract. Cause IV, Item 1: Hand-mixing at Foster Avenue, $1,082.47.

The conclusion allowing this finding is reversed. The demand grows out of delay which was caused by the necessity of a new plan for the Foster avenue sewer, respecting which a new, particular contract was made with the plaintiff. The plaintiff was hindered from continuing the wall when, in his progress northward, he approached the locality, and such hindrance delayed him to a time when a condition of the work created by himself precluded the use of the machine for concreting; hence the matter falls within section 12 of the contract, which disables plaintiff from recovering damages arising out of hindrance or delay from any cause. Moreover, the cause of action, if any, takes its rise from the interruption of the performance of the main contract. The substituted, particular contract for the sewer discharged all claims from such cause.

Cause IV, Item 42: Cost of "Trucking to Wall above Avenue H, $342. It is quite inconsistent to allow this item and to disapprove of items 18, 20, and 40 of Cause IV. I discover no finding of fault on the part of the defendant which justifies its allowance, nor am I satisfied that the evidence would justify such a finding. Indeed, the finding would not be in harmony, I think, with the findings of the court respecting the matter out of which this claim grows.

Respecting the items disallowed the plaintiff, it is considered that finding 471 (Cause IV, Item 21; Material on Wood-Harmon Company Land), that it cost the contractor 26 cents per cubic yard more to haul the earth to raise the grades at Foster avenue and East Sixteenth street than it would have cost to place the material diverted to the WoodHarmon property, is not sustained by the evidence, although the evidence does show that there was an increased cost, and therefore finding 475, that plaintiff was not put to any extra expense and did not suffer any damages by reason of said earth on said Wood-Harmon Company's property, is reversed

[3] Respecting the items allowed in the defendant's counterclaim, I find no error, except the item for Excess Fill in Embankment, $602.89. Had the defendant placed the proposed grade stakes according to its agreement, the plaintiff would not, in the first instance, have fallen into error; and, while the mistake might have been corrected by sighting along the embankment between the two abutments at Avenues N and O, yet this was placing upon the contractor a responsibility which he did not assume. In any case, the plaintiff had left a hole near the Avenue N abutment, and it was agreed between the parties that the excess fill should be removed by depositing it at that place. Notwithstanding that arrangement, the defendant, after requiring the contractor's attention in another place, permitted another contractor to fill up the hole, thereby disabling the plaintiff from carrying out the arrangement that had been made. It is not equitable that the plaintiff should bear the expense, inasmuch as the defendant initially and finally contributed to the condition. This item should be disallowed.

GLASER v. BURNS et al.

(Supreme Court, Special Term, Kings County. May 30, 1915.)

1. EXECUTORS AND ADMINISTRATORS

158-PERSONAL PROPERTY-RIGHT OF ESTATE "ASSET"-"PERSONAL

PROP

A lease of which the unexpired term was less than one year is an "asset" in the hands of an administrator de bonis non, which is subject to sale by the administrator; it being "personal property," under Code Civ. Proc. § 1430, providing that real property includes leasehold property, where the lessee or his assignee is possessed of at least a five-year unexpired term.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 634, 635, 6462; Dec. Dig. 158.

For other definitions, see Words and Phrases, First and Second Series, Assets; Personal Property.]

2. PARTITION 46-NECESSARY PARTIES.

Where a city leased realty for a term of years, and, when less than a year of such term remained, the administrator of the lessee sold such unexpired interest, and contracted with the buyer to assign to it the renewal term to which the lessee was entitled, such buyer was a necessary party to a partition suit in which the lease was involved.

[Ed. Note. For other cases, see Partition, Cent. Dig. § 114; Dec. Dig. 46.]

Action by Urania U. Glaser against John N. Burns and others. The Bridge Café moves for leave to intervene as party defendant and for the appointment of a receiver. Motion granted.

Ferdinand E. M. Bullowa, of New York City (Lawrence E. Brown, of New York City, of counsel), for movant.

Harry E. Fajans, of Jamaica, for plaintiff.

James A. Donnelly, of New York City (Maurice J. Dix, of New York City, of counsel), for defendants Burns.

BENEDICT, J. This is a motion made by the Bridge Café, a domestic corporation, for leave to intervene as a party defendant in a partition suit brought in this court in Kings county, and for the appointment therein of a receiver of the rents of certain premises described in the complaint situated at No. 103 Park Row, in the borough of Manhattan, in the county of New York. The motion is made upon the theory that the moving party has an interest in said premises under a contract in writing, bearing date the 14th of November, 1910, for the assignment of the renewal term of a certain ground lease and building upon the demised premises, which lease was made many years ago by the city of New York.

[1, 2] The motion is resisted upon various grounds, but I think it should be granted. The contract was a valid contract, made upon sufficient consideration, for the assignment of an interest in the lease of the property in respect of which lease the action for partition was brought. The contract was to be carried out when the lease should be renewed. As I view it, it makes little difference whether the leasehold interest in the property be considered as real or personal, when the ad

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(Supreme Court, Trial Term, Franklin County. June 12, 1915.) TAXATION 701-TAX TITLES-NOTICE TO "OCCUPANT."

Tax Law (Consol. Laws, c. 60) § 134, declares that if any lot or tract of land, sold for taxes by the comptroller, shall at the time of the expiration of one year given for redemption, be in the actual occupancy of any person, the grantee to whom it shall have been conveyed or the person claiming under him shall within one year from the expiration of the time to redeem serve a written notice on the person occupying the land either personally, or by leaving same at the dwelling house of the occupant, etc., stating the sale and conveyance, and that, unless the consideration be paid into the state treasury within six months for the benefit of the grantee, the conveyance shall become absolute. The statute further declares that the term "occupant" shall be construed to mean a who has lawfully entered upon the land so occupied and is in

possession to the exclusion of others. The owner of a large tract of forest land built a summer camp thereon, which was at various times during the season between April and October occupied by himself and family, and was continuously occupied by his superintendent, who also visited it in the winter. Held, that though the owner resided in another city, yet as he had his property patrolled by guards and the boundaries were well marked, he was in actual occupancy, and a notice to redeem was necessary before a comptroller's deed could become absolute.

[Ed. Note. For other cases, see Taxation, Cent. Dig. §§ 1407, 1409– 1411; Dec. Dig. 701.

For other definitions, see Words and Phrases, First and Second Series, Occupant.]

Action by George L. Nichols and another, as executors and trustees under the last will and testament of Albert J. Milbank, deceased, against John P. Kellas. Judgment for plaintiffs.

Ellis J. Staley, of Albany (Cantwell & Cantwell, of Malone, of counsel), for plaintiffs.

Kellas, Genaway & Kellas, of Malone, for defendant.

BORST, J. This action was brought to cancel a tax deed given by the comptroller to certain lands of which the plaintiffs claim to be the owners. In 1902 the plaintiffs' testator acquired by purchase from the St. Regis Paper Company, for a consideration stated in the deed of $1,150, the title to the north four-fifths of lot 6 of Ward's subdivision of township 14, containing about 140 acres of land, the title to which property is traced back from the Paper Company to the state, which gave letters patent for these lands and others in 1850. In 1896, plaintiffs' testator purchased from the Everton Lumber Company for $2,000 three other parcels of land situate in townships 11, 12, and 15, Great Tract 1, Macomb's purchase, Franklin county, and northerly of and adjoining the parcel first noted. These four parcels of land, subdivided into lots, form a parallelogram and comprise in all about 1,128 acres of land. At or soon after the plaintiffs' testator acquired the property, he constructed a camp on the southerly half of lot 31 of said parcels, expending $5,000 or $6,000 in buildings, which consist of a main building, with seven or eight rooms, another building, with one bedroom and dressing room and bathroom, a building, known as the guide house, that would accommodate three or four guides, a stable, to accommodate four horses, an icehouse, with a capacity for about 40 tons of ice, and as a part of the icehouse there was a cooler room and storeroom. There was also a boathouse, with a capacity for three or four boats.

At the point where the buildings were located there was, at or shortly after the year 1903 and since, about 5 acres of cleared land, which extends down to the St. Regis river, which flows in a northerly and southerly direction through the property. This cleared land was used by plaintiffs' testator for a lawn and garden, all being under cultivation, partly plowed and partly seeded, and potatoes and vegetables and hay were raised thereon. About the time the plaintiffs' testator purchased the last parcels of property, he caused a survey to be made of the exFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes