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CASES REPORTED WITH BRIEF SYLLABI

AND

DECISIONS HANDED DOWN WITHOUT

OPINION.

FOURTH DEPARTMENT, OCTOBER 1909.*

Mary A. Lane, Respondent, v. C. Augustus Koenig, Appellant, Impleaded with John Kolenick and Others.- Judgment affirmed, with costs. All concurred. Hammond Beef Company, Respondent, v. Mary Havrichak, Appellant.Judgment of County Court and of Justice's Court reversed, with costs in all courts to appellant. Held, that the complaint was not verified as required by law so as to entitle the plaintiff to judgment thereon by default. All concurred, except Spring and Williams, JJ., who dissented.

Niagara Loan Association, Appellant, v. Adeline Bentley, Respondent.Judgment affirmed, with costs. All concurred, except McLennan, P. J., and Spring, J., who dissented upon the ground that by the provisions of the statute under which the plaintiff was doing business and by the terms of the note in suit it was entitled to interest at the rate of two per cent per month after the loan became due.

Henry T. Buffum, Respondent, v. Buffalo and Lake Erie Traction Company, Appellant, Impleaded with the Town of Hamburg.-Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., and Williams, J., who dissented upon the ground that there is no evidence tending to establish negligence on the part of the defendant which was the proximate cause of the plaintiff's injury; that plaintiff failed to establish his freedom from contributory negligence and upon the further ground that the court committed reversible error in refusing to charge as requested by the defendant.

Washington H. Ransom, Respondent, v. Romeyn Brown, Appellant.- Judg. ment and order affirmed, with costs. All concurred.

Delia Waggoner, as Sole Executrix, etc., of Jacob Waggoner, Deceased, Plaintiff, v. Lehigh Valley Railroad Company, Defendant.- Plaintiff's exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant upon the nonsuit, with costs. All concurred.

*These decisions not received in time for publication in their proper place. See 134 App. Div. 955.-[REP.

Sce Code Civ. Proc. §§ 525, 526, 2936, cited by counsel. See, also, Code Civ. Proc. 2891.- [Rep.

See Laws of 1895, chap. 326, as amd. by Laws of 1902, chap. 78, and Laws of 1905, chap. 333; since revised into Banking Law (Consol. Laws, chap. 2; Laws of 1909, chap. 10), SS 310-314.— [REP.

Fourth Department, October, 1909.

[Vol. 137. Clarence E. Evans, an Infant, by Edward Evans, His Guardian ad Litem, Respondent, v. Eastman Kodak Company, Appellant.-Judgment and order reversed and new trial ordered, with costs to appellant to abide event, upon the authority of the decision in the same case on former appeal, reported at 129 Appellate Division, 768. All concurred, except Kruse and Robson, JJ., who dissented. Blanche Shermen, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.-Judgment reversed and new trial ordered with costs to appellant to abide event. Held, that the evidence as to defendant's negligence and plaintiff's freedom from contributory negligence presented questions of fact for the jury. All concurred, except Robson, J., who dissented.

William P. Tucker, Respondent, v. Syracuse Rapid Transit Railway Company, Appellant.-Judgment and order affirmed, with costs. All concurred, except Williams, J., who dissented.

Iva E. Sprague, Respondent, v. The Phoenix Insurance Company of Hartford, Conn., Appellant.- Judgment and order affirmed, with costs. All concurred. Cora B. Flynn, Respondent, v. The New York, Auburn and Lansing Railway Company, Appellant.— Order affirmed, with costs. All concurred.

Henry Shuler, Appellant, v. The R. S. Weston Truck Company, Respondent.
Judgment and order affirmed, with costs. All concurred.

Melvin P. Ellison, as Administrator, etc., of Jane Ellison, Deceased, Respond. ent, v. George W. Ford, as Administrator, etc., of Daniel A. Ford, Deceased, Appellant.-Judgment and order affirmed, with costs. All concurred.

Esther S. Stanfield, as Administratrix, etc., of Frederick Stanfield, Deceased, Appellant, v. Town of Hamburg, Respondent.- Order affirmed, with costs. All concurred; McLennan, P. J., upon the ground that it would not be proper to reinstate the verdict, but is of the opinion that the question of defendant's negligence and the question of the intestate's freedom from contributory negligence are questions of fact for the jury; Spring, J., on the ground that the plaintiff failed to establish the negligence of the defendant or the intestate's freedom from contributory negligence.

Irene Secord, Respondent, v. William Broadhead and Others, Appellants.— Judgment and order affirmed, with costs. All concurred.

International Text Book Company, Respondent, v. George E. Burmaster, Appellant.- Judgment affirmed, with costs. All concurred.

Addie E. Kline, Respondent, v. The City of Buffalo, Appellant.- Judgment and order affirmed, with costs. All concurred.

Elizabeth Schmitt, Respondent, v. New York Life Insurance Company, Appellant. Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over within twenty days upon payment of the costs of the demurrer and of this appeal. All concurred.

Margaret Flarety and Charles A. Case, as Administrators, etc., of John Kane, Deceased, Appellants, v. John Schuppenhauer, Respondent.— Judgment reversed and new trial ordered, before another referee, with costs to appellant to abide event, upon questions of fact. Held, that the decision is contrary to and against the weight of the evidence. All concurred, except Robson, J., who dissented; Kruse, J., not sitting.

App. Div.]

Fourth Department, October, 1909.

Samuel Kumin, Appellant, v. Oswego Falls Pulp and Paper Company, Respondent. Judgment affirmed, with costs. All concurred.

Kittie Fults, Appellant, v. John C. Munro, Respondent. — Judgment affirmed, with costs. All concurred.

Elizabeth Lawless, Respondent, v. Samuel H. Mora and William Kellerhouse, Appellants. Judgment affirmed, with costs. All concurred.

John J. Darcy, Respondent, v. National Tube Company, Appellant. — Judgment and order affirmed, with costs. All concurred.

Watson H. Whipple, Respondent, v. Lyons Beet Sugar Refining Company, Appellant.- Judgment affirmed, with costs. All concurred.

Lucretia C. Smither, Appellant, v. Robert K. Smither, Respondent. - Order affirmed, without costs. All concurred, except Kruse, J., who dissented.

J. P. Devine Company, Appellant, v. Buffalo Foundry Company and Oliver S. Sleeper, Respondents. - Order affirmed, with ten dollars costs and disbursements. All concurred.

Sarah Caroline Costello, Respondent, v. John H. Costello, Appellant.— Order affirmed, with ten dollars costs and disbursements. All concurred, except McLennan, P. J., and Robson, J., who dissented and voted for modification of the order by striking out the provision for the payment of $880.

In the Matter of Supplementary Proceedings for the Collection of a Tax of Beauty Springs Water Company. Frank H. Talcott, as President of the Village of Lyons Falls, Appellant, v. Beauty Springs Water Company, Respondent.— Motion for leave to appeal to Court of Appeals granted. Settle questions before Williams, J., on two days' notice.

Richard Radley, Appellant, v. Steel Cable Engineering Company, Respondent. - Motion for leave to appeal to Court of Appeals denied, with ten dollars costs. Assets Realization Company, Respondent, v. Cornelia A. Clark and Others, Appellants. Judgment affirmed, with costs. All concurred.

Herman W. Bode, Appellant, v. Charles H. Angel, Respondent.-Judgment affirmed, with costs. All concurred.

William McClatchy and Henry W. Hurlburt, Respondents, v. J. B. Malcolm & Company, Appellant.— Judgment and order affirmed, with costs. All concurred, except Williams, J., who dissented.

Frank A. Raymond and Elizabeth Raymond, Appellants, v. Elzer W. Bushnell and Melzer W. Bushnell, as Administrators, etc., of Harry E. Sandford, Deceased, and Each Individually, and Others, Respondents.- Judgment affirmed, with costs. All concurred.

Clarence E. Hedges and Others, Respondents, v. Mary L. Wells and Frank or Frances Wells McKay, Appellants.- Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, upon the authority of Heughes v. Galusha Stove Company (122 App. Div. 118). All concurred, except McLennan, P. J., and Robson, J., who dissented.

World's Dispensary Medical Association, Respondent, v. Robert J. Pierce, Appellant. Order affirmed, with ten dollars costs and disbursements. All concurred.

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Second Department, March, 1910.

[Vol. 137.

Harriet C. Callahan, Respondent, v. James Francis Callahan, Appellant.- Order affirmed, with ten dollars costs and disbursements. All concurred.

Manufacturers' Commercial Company, Appellant, v. Rochester Railway Com. pany and Josiah W. Place, Respondents.— Order affirmed, with ten dollars costs and disbursements. All concurred, except Kruse and Robson, JJ., who dissented.

Thomas S. Miller, Respondent, v. Harriet R. Miller, Appellant.- Orders affirmed, without costs. All concurred, except Williams, J., who dissented. Isaac Rosskam and Others, Appellants, v. John Hederman and Mary F. Heder man, Respondents. Order affirmed, with ten dollars costs and disbursements. All concurred.

Edward F. Hanlon, Respondent, v. James Farley, Appellant.-Judgment affirmed, with costs. All concurred.

George P. Senecal, Respondent, v. James C. Fargo, as President of the American Express Company, Appellant. — Judgment affirmed, with costs. All concurred.

National Supply Company, Respondent, v. William T. Jebb, Appellant.Appeal dismissed, without costs.

SECOND DEPARTMENT, MARCH, 1910.

WILLIAM SPENCE, Respondent, v. AUGUST CHARROT and ALPHONSE HENRY,

Landlord and tenant- lease

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Appellants.

· acquisition of title by city — destruction of premises -surrender.

Appeal by the defendants, August Charrot and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 22d day of January. 1909, by direction of the court upon the pleadings on a trial at the Kings County Trial Term.

THOMAS, J.: The defendants appeal from a judgment entered on the pleadings. The defendants were lessees of a store and a portion of the basement of 58 Flatbush avenue. The term was from January 1, 1903, to April 30, 1907. The plaintiff sues for the rent for the year 1906 and the following four months. The defendants denied rent due, and stated three defenses: First, that proceedings were begun March 6, 1905, by the city of New York for the widening of Livingston street; that the plaintiff and defendants above named were adverse parties in and to the aforesaid condemnation proceeding, in which the total destruction of the building or leasehold premises described in the complaint was a material issue, said issue being therein actually litigated and necessarily involved, and it was therein, by said final order, adjudged and determined on the merits that the said building or leasehold premises were totally destroyed and the plaintiff and defendants compensated in accordance with such determi nation by the award of full damages for a total destruction of said building or leasehold premises, according to their respective interests; that the city, on or about the 11th day of November, 1905, acquired title "to part" of the premises,

App. Div.]

Second Department, March, 1910.

and took possession of such part in January, 1906; that thereafter it tore down and removed the entire front wall of the building, and a part of the side walls, whereby the defendants were deprived of the use and possession of the premises, which became untenantable by reason of such destruction, and that the defendants elected to quit and surrender the part of the premises not acquired by the city, and did so quit and surrender the same to the plaintiff, who went into possession thereof. The second defense is that upon hearings before the commissioners the plaintiff proved that by reason of the city's acquiring title the building erected on the premises would be totally destroyed, and that the commissioners duly found that the removal of the front wall and part of the side wall of the building would cause a total loss of said building and awarded to plaintiff a sum which adequately compensated plaintiff for the total loss and destruction of said building. For a third defense the defendants allege that during the pendency of such proceedings plaintiff represented to defendants that upon the city acquiring title plaintiff would tear down the entire building and erect a new building, and that upon such acquisition of title the defendants' lease would cease and determine, and that defendants would thereupon be required to give up the use and possession of said premises and surrender the same to plaintiff; and in a separate paragraph it is alleged that defendants relied upon said representations, and caused another building owned by defendants to be altered so as to be suitable for their business "and thereafter quit and surrendered the said premises to plaintiff as said plaintiff represented they would be required to do." It will be observed that in the third defense the defendants do not state at what date they surrendered the premises. They "thereafter quit and surrendered," that is, after the things enumerated in paragraph II. They vaguely state that they quit and surrendered their premises at some time before the expiration of the term by reason of the direction that they should do so upon the city acquiring title. The first defense is in effect that the city sought the title to part of the lot against the present parties; that they and the city contested the question whether the taking would involve the destruction of the building; that it was adjudged that the leasehold premises were totally destroyed, and the landlord and tenants compensated as for total destruction; that in January, 1906, the city took possession of part of the premises, and later tore down the front wall and side wall of the building, whereby the defendants were deprived of the use and possession of the building thus made untenantable, and thereafter elected to surrender and did quit and surrender the part of the premises not acquired by the city, to the plaintiff. Here is the same indefinite statement as to the time of surrender. Non constat such surrender did not take place until the lease expired. I think that the allegation of surrender adds nothing to the effect of the other facts stated in this defense. Section 996 of the charter (Laws of 1901, chap. 466) is as follows: "In all cases where the whole of any lot or parcel of land or other premises, under lease or other contract, shall be taken for any of the purposes aforesaid, by virtue of this title, all the covenants, contracts and engagements between landlord and tenant, or any other contracting parties, touching the same, or any part thereof, shall, upon the vesting of the title in The City of New York, cease and determine and be absolutely discharged;

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