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Second Department, April, 1910. (Vol. 137, App. Div.] tate, grantor, bargainor or vendor, passing or transferred to those not herein specifically exempted from the provisions of this article, and not as the property or interest therein passing or transferred to individual legatees, devisees, heirs, next of kin, grantees, donees or vendees, and shall include all property or interest therein, whether situated within or without this State," and that “the word 'transfer,' as used in this article, shall be taken to include the passing of property or any interest therein in possession or enjoyment, present or future, by inheritance, descent, devise, bequest, grant, deed, bargain, sale or gift, in the manner herein prescribed.” That is, the word "property” used in section 220 relates to the property of Mrs. Starbuck at the time of her death ; it is the property of which she died seized, and which was transferred by operation of the intestate laws of this State, and the meaning of the word “ transfer," as used in that section, includes “the passing of property” as thus defined, “or any interest therein in possession or enjoyment, present or future, by inheritance," etc. It is a tax upon the transferring the passing of the property of the deceased under the intestate laws of this State, just as much as the fee passed to the heirs at law. The tax is levied, not upon the property, but upon the right of succession, and the estate of the deceased which passes, with “any interest therein in possession or enjoyment" determines the amount of the tax and the question of exemptions. The estate as a whole, as "estate” is defined in the act, is the estate which is to be considered, not the estates which vest in those who are to take, and as the decedent's estate which passed to her heirs at law, with a present right of possession in the husband, exceeded $10,000, it was not exempt under the law.*

The decree appealed from should be reversed, and the decree affirming the report of the appraiser assessing and fixing the tax upon the decedent's estate should be affirmed.

Decree of the Surrogate's Court of Westchester county affirmed, with costs.

* Sec Tax Law (Gen. Laws, chap. 24; Laws of 1896, chap. 908), SS 220, 221, as respectively amd. by Laws of 1905, chap. 368, and Laws of 1907, chap. 204; since amd. by Laws of 1908, chap. 316, and revised into Tax Law (Consol. Laws, chap. 60; Laws of 1909, chap. 62), SS 220, 221.– [REP.

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 bis 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, Plain. tiff, 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. SS 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. Lastman 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 avd 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 Phønix 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 coucurred.

Esther S. Stanfield, as Administratrix, etc., of Frederick Stapfield, 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. Klipe, 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. lleld, 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. — Judge ment 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 disburse. ments. 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 Compuny. 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 Compuny (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.

App. Div.–Vol. CXXXVII. 56

Second Department, Marchi, 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 Company 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.

Tel.

SECOND DEPARTMENT, March, 1910. WILLIAM SPENCE, Respondent, v. August CHARROT and ALPHONSE HENRY,

Appellants. Landlord and tenant - lease - acquisition of tille by city - destruction of premiks

- 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; thai 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,

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