MEMORANDUM DECISIONS city of New York, imposed pursuant to chap- PER CURIAM. Order affirmed, with costs, WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. ents. 1063 in the condition of the ways, works, machinery and plant, and that defendant failed to comply with section 81 of the Labor Law (Consol. Laws, c. 31), in that the aforesaid switch was alleges due notice of the time, place and cause of the death pursuant to the Labor Law. The not properly guarded. The complaint further answer denies the negligence and sets up the defenses of contributory negligence and assumption of risk. Benjamin Patterson and George Charles K. Carpenter and Joseph V. GallaBell, both of New York City, for appellant. gher, both of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. COCK, CHASE, COLLIN, HOGAN, CAR- COYNE, Appellant, v. VALLEY STREAM REALTY CO., Respondent. peals of New York. (Court of Apan order of the Appellate Division of the Sufrom a judgment, entered May 20, 1915, upon Nov. 21, 1916.) Appeal (166 App. Div. 696, 152 N. Y. Supp. 273), reversing a judgment in favor of plaintiff, enterpreme Court in the First Judicial Department Term without a jury and directing a dismissal of the complaint. This action was brought to ed upon a decision of the court at a Trial the defendant under a contract dated June 22, 1907, made between the defendant and said recover moneys paid by plaintiff's decedent to decedent for the purchase on installment paythe provision that "in the event of the death ments of lots at Valley Stream, which contained of the party of the second part before the comfirst part shall, upon demand, pay to the heirs, pletion of this contract, and provided no payment hereunder is in arrears, the party of the CONKLIN, Appellant, v. UNITED CONSTRUCTION & SUPPLY CO. et al., Respond(Court of Appeals of New York. Oct. 17, 1916.) Appeal from a judgment of the Appallate Division of the Supreme Court in the First Judicial Department (166 App. Div. 284, 151 N. Y. Supp. 624), entered February 25, 1915, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action for the cancellation of certain capital stock of the defendant United Construction & Supply Company, issued to Samuel M. Jarvis, originally a defendant, for an accounting between the plaintiff and the defendant corporation and to compel said Jarvis to account to it for dividends received by him, to impress a trust on certain sums of money and securities received by Jar-executors or administrator of the party of the vis from the defendant company and for an accounting between the plaintiff and said Jarvis. death, with full surrender and release of this second part, upon the proper proof of such 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. liam J. Patterson, all of New York City, for per annum." respondents. PER CURIAM. costs. Judgment affirmed, with CHASE. COLLIN. CUDDEBACK. HOGAN, and CARDOZO, JJ., BARTLETT, C. J., not voting. concur. WILLARD CONKLIN, Appellant, v. UNITED CONSTRUCTION & SUPPLY CO. et al., Respondents. (Court of Appeals of New York. Nov. 28, 1916.) PER CURIAM. Motion for reargument denied. with $10 costs. See 219 N. Y. —, 114 N. E. 1063. CONOSCENTI. Respondent, v. HOLBROOK, CABOT & ROLLINS CORP., Appellant. (Court of Appeals of New York. 1916.) Nov. 28, Defendant contended that by reason of the failure of plaintiff's decedent to provided for by the contract there were paymake all the monthly payments on the dates plaintiff could not, therefore, recover in this ments in arrears at the date of her death and action. Richard B. Hand and J. Baldwin Hand, both of New York City, for appellant. Benjamin Reass, Hugo Hirsh, and Emanuel Newman, all of Brooklyn, for respondent. costs. PER CURIAM. Judgment affirmed, with COCK, CHASE, COLLIN, HOGAN, CARDO- D'ARCY, Respondent, v. INTERBOROUGH from an order of the Appellate Division of the RAPID TRANSIT CO., Appellant. (Court of Supreme Court in the First Judicial DepartAppeals of New York. Oct. 31, 1916.) Appeal ment (165 App. Div. 757, 152 N. Y. Supp. 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 500), entered January 28, 1915, reversing 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 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 to have been been occasioned through the negligence of de direction, i. e., southerly, at high speed and occasioned 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 ceived an electric shock which instantly killed north-bound train. B. H. Ames, Frederick Alre- platform, was looking_over him, and that such death was caused by defects | lis, and James L. Quackenbush, all of New its edge for a York City, for appellant. Ralph Gillette, of PER CURIAM. Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK, CARDOZO, and POUND, JJ., concur. He was sentenced to Sing Sing prison for not less than two nor more than five years. His term of imprisonment began on the 20th day of July, 1905. On March 10, 1906, he was transferred to Dannemora State Hospital because he had become insane. He has been in Dannemora State Hospital ever since. Plaintiff, having been appointed committee of the estate of the incompetent, has brought this action for an accounting. See, alAlbert E. so, 215 N. Y. 720, 109 N. E. 1072. Richardson, of New York City, for appellant. Rawdon W. Kellogg, of Jamaica, for respondent. PER CURIAM. Judgment affirmed, with costs. DECKER, Respondent, v. CONSELYEA, APpellant. (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 Department (166 App. Div. 941, 151 N. Y. Supp. 1112), entered February 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 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, their parents, John Conselyea and Sarah ConY. They inherited considerable property from Appellate Divison, Second Department. Action by Leander J. De Bekker against Freder- reled. Charles, the incompetent, shot the apselyea. In April of 1905 the brothers quarick A. Stokes Company and others. From an order of the Appellate Division of the Supreme the first degree. He was tried in the County pellant. Charles was indicted for assault in Court (172 App. Div. 960, 157 N. Y. 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 oftiff equitable relief, defendants appeal by per- ficials came to the conclusion that there was mission; the Appellate Division certifying question was made and he was found sane. Then some question as to his sanity. An investigations. Order affirmed, and questions answered. he was tried. Plaintiff, the author of an encyclopedia, entered into a contract with the defendant for its publication, by the terms of which he was to be paid certain royalties. This action was for an accounting. The following questions were certified: "(1) Was the contract made between the defendants, Frederick A. Stokes Company and the University Society, Incorporated, on October 5, 1910, made in violation of the plaintiff's rights under or reserved to the plaintiff by his contract with the defendant Stokes Company, dated the 19th day of July, 1907? (2) Did the defendant Frederick A. Stokes Company, by the payment of $150 to the plaintiff under clause E of contract, acquire such complete rights in said work under the contract of July 19, 1907, as entitled the defendant Frederick A. Stokes Company to contract 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-volume set known as the Standard Music Encyclopedia bearing the imprint of the University Society, Incorporated, without the imprint of the Frederick A. Stokes Company, and without the name of the plaintiff annearing thereon in any way? (3) Was the making of the agreement between the defendants, Frederick A. Stokes Company and the University Society, Incorporated, followed by sales by the University Society, Incorporated, of the work of the plaintiff as two volumes of a set of ten volumes known as the 'Standard Music Encyclopedia,' such a violation of the rights of the plaintiff under or reserved by his contract with the defendant Frederick A. Stokes Company, dated the 19th day of July, 1907, as to warrant a judgment directing a recission of such contract as of the 5th day of October, 1910, the date of the contract between the University Society, Incorporated, and the Frederick A. Stokes Company? (4) Did the plaintiff, under his agreement with the defendant Frederick A. Stokes Company, dated the 19th day of July, 1907, retain any residuary interest in the work therein described other than the privileges contained in article fifth, subdivisions A and B. and a right to pecuniary compensation from said defendant after such work had been copyrighted in the name of the defendant Frederick A. Stokes Company, and the work had been published by sales of copies thereof?" Frederick Trevor Hill and Richard Steel, both of New York City, for appellants. Harold G. Aron, of New York City, for respondent. PER CURIAM. Order affirmed, with costs. First, third, and fourth questions certified answered in the affirmative; second question in the negative. HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZ), and POUND, JJ., concur. COCK, CHASE, COLLIN, CUDDEBACK, DE FILIPPIS v. FALKENBERG et al. (Court of Appeals of New York. Oct. 24, 1916.) Ploy of defendant Falkenberg went to the Eg PER CURIAM. Order affirmed, with costs against the State Industrial Commission. COCK, CHASE, COLLIN, CUDDEBACK, al., Appellants. exceptions were frivolous, that the record presented no question for review, and that the appeal was taken solely for purpose of delay. Frederick S. Martyn, of Brooklyn, for the motion. Lynn C. Norris, of Brooklyn, opposed. PER CURIAM. Motion denied, with $10 costs. DI PAOLO et al.. Respondents, v. THOMAS CRIMMINS CONTRACTING CO. et al., Appellants. (Court of Appeals of New York. Oct. 24, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (158 N. Y. Supp: 1113), entered May 11, 1916, which affirmed an award of the State Industrial Commission under the Workmen's Compensation Law for the death of Vincenzo Di Paolo, who was employed by the defendant contracting company as a foreman on work being done in one of the Brooklyn subways. He was struck by a train and killed a few minutes after the close of his day's work. The question was as to whether the accident arose out of and in the course of his employment. George A. Blauvelt. Francis J. MacIntyre, and Maurice J. O'Callaghan, all of New York City, for appellants. Egburt E. Woodbury, Atty. Gen. (E. C. Aiken, Deputy Atty. Gen., of counsel), for respondents. PER CURIAM. Order affirmed, with costs. HISCOCK, CHASE. COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ., concur. WILLARD BARTLETT, C. J., dissents. In re DONIHEE. (Court of Appeals of New York. Dec. 12, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (158 N. Y. Supp. 1113), entered May 12, 1916, which affirmed an order of Special Term granting a motion made by the petitioner herein to cancel the assessment levied on lot No. 24 in block No. 7053, section 21, on the land map of the county of Kings, for benefit to said property abutting West Twenty-Seventh street by reason of the acquisition of the title to the land in said street by the city of New York. Lamar Hardy, Corp. Counsel, of New York City (Paul Jones, of New York City, of counsel), for appellant. Arthur J. Stern, of Brooklyn, for respondent. PER CURIAM. Order affirmed wth costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDO ZO, and POUND, JJ., concur. DONOHUE v. CITY WATER POWER CO. 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 First Judicial Department (166 App. Div. 599, 152 N. Y. Supp. 61), entered May 26, 1915, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action by the receiver of an insolvent domestic corporation to impress a trust on assets of said corporation alleged to be in the hands of the defendants. George H. D. Foster, Lemuel E. Quigg, and Wendell P. McKown, all of New York City, for appellant. Morgan M. Mann, of New York City, for respondents. DOPPSTADT, Respondent, v. NEW YORK CENT. R. CO., Appellant. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (168 App. Div. 942, 152 N. Y. Supp. 1108), entered May 12, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the defendant, his employer. The complaint states two causes of action, one under the Employers' Liability Act of the state of New York (Consol. Laws. c. 31, §§ 200-204), and the other the federal Employers' Liability Act (Act April 22, 1908. c. 149, 35 Stat. 65 [U. S. Comp. St. 1913, §§ 865786651). The answer admits that the plaintiff's decedent was employed at the time by defendant as a freight brakeman and met with the accident as a result of which he died, and that at the time of the accident both the plaintiff's decedent and the defendant were engaged in interstate commerce, but it denies any negligence on the part of the defendant, and alleges contributory negligence and assumption of risk. Robert A. Kutschboch and Alexander S. Lyman, both of New York City, for appellant. Don R. Almy, William S. Evans, Samuel Orr, and William H. Woolley, all of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and POUND, JJ., concur. WILLARD BARTLETT, C. J., absent. DUFFEY, State Commissioner of Highways, Appellant, v. CLARK, County Treasurer, Respondent. Oct. 24, 1916.) Appeal from an order of (Court of Appeals of New York. the Appellate Division of the Supreme Court in the Fourth N. Y. Supp. 1110), entered May 23, 1916, which Judicial Department (159 affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the county treasurer of Onondaga county to pay a draft drawn by the commissioner of highways to P. H. Murray, contractor, for $3,855.94, representing the final payment on account of the contract for the construction of the county highway known as No. 670, situate in the town of Salina, Onondaga county, N. Y., and alleged to be the remainder of the contract price due and owing from the county in the first 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 of Onondaga in the first instance, and the town involved, the question being whether the county of Salina ultimately, were liable for the amount of said draft. Egburt E. Woodbury, Atty. Gen. (Edmund H. Lewis, of Syracuse, of counsel), for appellant. Ray B. Smith, of Syracuse, for respondent. PER CURIAM. Order affirmed, with costs. HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. WILLARD BARTLETT, C. J., absent. DUNN, Respondent, v. RUPPERT, Appellant. (Court of Appeals of New York. Dec. 15, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (166 App. Div. 390, 151 N. Y. Supp. 662), entered February 24, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of the defendant. The complaint alleged that plaintiff while driving a wagon south on Third avenue in the city of New York was thrown therefrom and received the injuries complained of as a consequence of a collision with one of defendant's trucks which was being driven north on the wrong side of the street in violation of city ordinances relating to rules of the road. Grant C. Fox, of New York City, for appellant. William S. Evans, Jacquin Frank, and David M. Fink, all of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs, under section 1317 of the Code of Civil Procedure. CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. WIL LARD BARTLETT, C. J., votes for reversal, on the opinion of McLaughlin, J., below. upon a claim that such writing is not the last WILLARD BARTLETT, C. J., and HIS- ESCOTT, Respondent, v. NATIONAL SURETY CO., Appellant. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (169 App. Div. 911, 153 N. Y. Supp. 1113), entered May 18, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court. The action is to recover on a bond exsurety for William G. Kerr, as administrator of Thomas E. Kerr, deceased, dated 16th day of June, 1911, and a contract of reinsurance between said Empire State Surety Company and defendant, National Surety Company, dated September 18, 1912. It is undisputed that the administrator embezzled large sums of money from the estate, that he was removed by the Erie county surrogate and the plaintiff appointed administratrix de bonis non, and that the amount of the shortage was duly fixed in proceedings before said surrogate. The question was as to the defendant's liability under the reinsurance agreement. Franklin D. L. Stowe, of Buffalo, for appellant. Hamilton Ward and Emil F. Lein, both of Buffalo, for respondent. DURKEE, Appellant, v. SMITH et al., Re-ecuted by the Empire State Surety Company as spondents. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (171 App. Div. 72, 156 N. Y. Supp. 920), entered January 11, 1916, affirming a judgment in favor of defendant entered upon a decision of the court at a Trial Term without a jury in an action for the partition of real property of one Henry Crandall, deceased, involving the validity of the will of said deceased. He gave his entire estate, subject to a life interest of his widow therein, to trustees named in his will for the purpose of establishing and maintaining public parks and a library in the city of Glens Falls, and by a separate clause of his will provided that if any devise or bequest should be held void, he gave, devised and bequeathed the property affected to the trustees named individually. Plaintiff, one of his heirs at law, having successfully attacked the devise to the trustees, for the purposes of the trust, the court held that the property 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. See, also, 112 N. E. 1057. Edward M. Angell, James McPhillips, and Beecher S. Clother, all of Glens Falls, for appellant. J. A. Kellogg and Louis M. Brown, both of Glens Falls, for respondents. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and POUND, JJ., concur. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and POUND, JJ., concur. FAIRCHILD, Appellant, v. SCARSDALE (Court of ApESTATES, Respondent, et al. Oct. 24, 1916.) Appeal peals of New York. from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (158 N. Y. Supp. 1115), entered May 12, 1916, which affirmed two orders of Special Term: (1) Granting leave to plaintiff to serve a second amended complaint upon payment of all costs to date, and the giving of a bond to pay interest and taxes on the $150,000 mortgage; 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.) PER CURIAM. Motion for reargument denied, with $10 costs. See 219 N. Y. 112, 113 N. E. 800. (Court EPSTEIN v. WERBELOVSKY et al. of Appeals of New York. Dec. 28, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (167 App. Div. 942, 152 N. Y. Supp. 1109) entered March 31, 1915, which affirmed a judgment entered upon a verdict decreeing that a certain paper writing dated February 28, 1912, admitted to probate by the Surrogate's Court of Kings county on May 29, 1913, is the last will and testament of Jacob H. Werbelovsky, deceased, and enjoining all parties to this action from bringing or maintaining any action based Rumsey, of New York City, for respondent. PER CURIAM. Appeal dismissed, with costs. HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ., concur. WILLARD BARTLETT, C. J., absent. FAIRCLOUGH, Appellant, v. SOUTHERN PAC. CO. et al., Respondents. (Court of Ap peals of New York. Dec. 28. 1916.) Appeal from a judgment entered March 7, 1916, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (171 App. Div. 496, 157 N. Y. Supp. 862), which reversed an order of Special Term denying a motion to dismiss the complaint and granted said motion in an action to recover for the 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 whereThe 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 nonresident 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 City, for appellant. Everett J. Esselstyn, J. Ard Haughwout, and C. P. Williamson, all of New York City, for respondents. PER CURIAM. Judgment affirmed, with costs, on the authority of Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315, 19 N. E. 625, 2 L. R. A. 636. PER CURIAM. Order affirmed, with costs; question certified answered in the negative. WILLARD BARTLETT, C. J.. and CHASE, COLLIN, CUDDEBACK, CARDOZO, and POUND, JJ., concur. HOGAN, J., absent. FITZSIMONS, Respondent, v. ISMAN, Ap pellant. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment of the Ap WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, and HOGAN, JJ., concur. CHASE and CARDOZO, JJ., dissent, on the ground that the amended Code section is retro-pellate Division of the Supreme Court in the active. FIRST CONGREGATIONAL CHURCH OF SCHENECTADY, Appellant, v. FAUST et al., Respondents. (Court of Appeals of New York, Oct. 10, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (155 N. Y. Supp. 1106), entered November 22, 1915, affirming a judgment in favor of defendants, entered upon a decision of the court on trial at Special Term. The motion was made upon the ground of failure to file the return. Frank Cooper, of Schenectady, for the motion. Robert J. Landon, of Schenectady, opposed. PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion, unless within 10 days appellant files return and serves cases on appeal, and pays $10 costs of motion. FIRST NAT. BANK OF HIGH BRIDGE, N. J., Appellant, v. HUDSON et al., Respondents. (Court of Appeals of New York. Oct. 10, 1916.) Motion to dismiss an appeal from a judgment entered February 10, 1915, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (166 App. Div. 51, 151 N. Y. Supp. 595), which reversed a judgment in favor of plaintiff entered upon a verdict and directed a dismissal of the complaint. The motion was made upon the ground that the Court of Appeals was without jurisdiction to review the order of reversal and the judgment entered thereon. John G. Saxe, of New York City, for the motion. Harold Nathan, of New York City, opposed. PER CURIAM. Motion denied, with $10 costs. FISH, Respondent, v. ISELIN, Appellant. (Court of Appeals of New York. Dec. 5, 1916.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (159 N. Y. Supp. 375), entered June 2, 1916, which affirmed an order of Special Term sustaining a demurrer to a defense set up in the answer. This is an action upon a policy of Lloyds insurance for $15,000 issued by 100 subscribers doing business under the name of Subscribers at United States "Lloyds," upon a yacht named Senta, alleged to have belonged to the plaintiff and to have been destroyed by fire. The fifth separate defense sets up, as a bar to this action, a former judgment entered in favor of the defendant in the First Judicial Department (166 App. Div. 262, 151 N. Y. Supp. 552), entered February 8, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant. On November 1, 1912, at about 1 a. m., a fine clear morning, decedent, a police officer, while in the performance of his duty, was struck and killed by defendant's automobile proceeding south on the west drive of Central Park between Seventy-Third and Seventy-Fourth streets. Theodore H. Lord and Lyman A. Spalding, both of New York City, for appellant. James M. Donohue, of New York City, for respondent. FOOTE, Respondent, v. PENNSYLVANIA R. Co., Appellant. (Court of Appeals of New York. Dec. 28, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (170 App. Div. 937, 154 N. Y. Supp. 1121), entered August 6, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the defendant, his employer. The complaint alleges that the death of the plaintiff's intestate, a railroad brakeman, was caused by reason of his coming in contact with a freight car alleged to have been placed upon a yard track in the defendant's yards near the City of Rochester, N. Y., without proper clearance between it and the lead track of the yard, along which a freight train, in connection with which the plaintiff was working, passed. The answer of the defendant, after admitting the death of the plaintiff's intestate while in its employ as a yard brakeman, is in the nature of a general denial. The answer interposes the separate defenses of contributory negligence and assumed risk. H. J. Adams, Judson S. Rumsey, and Frank Rumsey, all of Buffalo, for appellant. Frederick L. Dutcher, of Rochester, for respondent. |