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Second Department, October, 1911.

[Vol. 146.

In the Matter of the Application of WILLIAM D. FARRINGTON,

an Attorney, Appellant, to Have a Lien Determined and Enforced upon the Property of GARRETT S. BRAISTED, Respondent.

Second Department, October 20, 1911.

Attorney and client - attorney's lien — failure to preserve client's

money intact-appeal.

An attorney at law holding money belonging to his client has an absolute

right to a summary determination by the court as to the existence and the amount of his lien. It is not necessary that he show that he has preserved the money intact; it is enough that he is ready, able and willing

to account to the client. The question as to whether an attorney has a general as well as a special

lien upon the client's money will not be determined by the Appellate Division in the first instance upon an appeal from an order of the Special Term denying an application for a determination of the lien, but the proceeding will be remitted to the Special Term with directions to proceed to a hearing and determination.

APPEAL by William D. Farrington from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 3d day of March, 1911.

Alexander S. Bacon (Richard C. Addy with him on the brief], for the appellant.

Albert A. Wray, for the respondent.

RICH, J.:

This appeal is brought by an attorney at law from an order denying his application for an order determining the amount of his lien upon money in his hands belonging to his client. The petition was denied upon the ground that it was not made to appear that the appellant had preserved the money intact.

An attorney with money in his hands belonging to his client has an absolute right to a summary determination by the court of the existence and amount of his lien (Judiciary Law [Consol. Laws, chap. 30; Laws of 1909, chap. 35], $ 475; Matter of King, 168 N. Y. 53), and it is not incumbent upon him to show that

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App. Div.] Second Department, October, 1911.
he had preserved the money intact; it is enough if he is ready,
able and willing to account to the client.

The question as to whether the appellant has a general as well as a special lien upon the money is to be determined upon the hearing at Special Term and not by this court in the first instance. The answer admits that the appellant has a lien upon the money, and the only controversy is as to the amount.

The order must be reversed, with ten dollars costs and disbursements, and the proceeding remitted to the Special Term, with directions to proceed to a hearing and determination.

JENKS, P. J., CARR and WOODWARD, JJ., concurred; THOMAS, J., concurred in result.

Order reversed, with ten dollars costs and disbursements, and proceeding remitted to the Special Terin, with directions to proceed to a hearing and determination.

MARY WHITE, as Administratrix, etc., of JAMES WHITE,

Deceased, Respondent, v. THE EMIGRANT INDUSTRIAL SAVINGS
BANK, Appellant.

Second Department, October 20, 1911,

Executors and administrators — presumption of death where person

has disappeared for seven years — power of surrogate to issue letters of administration - amendment of order so as to grant full letters of administration - right of administratrix to recover bank deposits owned by absentee when determination of Surrogate's Court conclusive - powers of temporary administratrix.

A person who has disappeared and who has not been heard from for seven

years is presumed to be dead, and at the expiration of that period the surrogate has power to issue full letters of administration upon his

estate. Although the surrogate only issued temporary letters of administration

upon the estate of such absentee, he may amend the order and grant full letters nunc pro tunc where the petition contains all the facts

necessary to authorize the granting of full letters. Where the Surrogate's Court has determined that such absentee is dead

for the purpose of adıninistering his estate, the decision is conclusive until revoked or set aside.

Second Department, October, 1911.

[Vol. 146. The administratrix is entitled to recover of a bank a deposit standing in

the name of such absentee. Although the administratrix made a demand upon the bank at a time

when she held only temporary letters of administration, no additional demand was necessary where the order was amended nunc pro tunc so

as to grant full letters. Moreover, the administratrix, holding temporary letters of administration

was entitled after demand upon the bank to maintain an action to recover the deposit standing in the name of the absentee.

APPEAL by the defendant, The Emigrant Industrial Savings Bank, 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 30th day of March, 1911, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 31st day of March, 1911, denying the defendant's motion for a new trial made upon the minutes.

Henry B. Hammond [Richard O'Gorman with him on the brief], for the appellant.

William F. Hagarty, for the respondent.

RICH, J.:

This action was brought to recover a deposit standing to the credit of James White in the defendant bank. At the close of the evidence both sides requested the direction of a verdict, and the trial court thereupon, with the consent of the parties, discharged the jury and later granted the plaintiff's motion. James White is not shown to be actually dead. In 1899 he was employed as an attendant at the Long Island State Hospital. He was a young man of exemplary habits, but was suffering from malaria and greatly run down in general health. On April tenth of that year he left the hospital for a ten days' vacation, and so far as known that was the last seen or heard of him. Search was instituted, inquiry made, and advertisements inserted in the papers, but without results. On April 18, 1906, more than seven years after his disappearance, the plaintiff

, his sister, applied to the Surrogate's Court of Kings county for the appointment of a temporary administrator and a decree was granted directing that temporary administration be granted

App. Div.] Second Department, October, 1911. to plaintiff and that “Letters of Administration upon the goods, chattels and credits of said James White issue to the said petitioner.” Full letters were accordingly issued on April twenty-fourth. On May first following the plaintiff called at the defendant bank, produced the pass book of the decedent and her letters of administration, and demanded payment of the account standing to the credit of said James White, which was refused. On June sixth the Surrogate's Court amended its order of April twenty-fourth by striking out the provisions relating to temporary administration, directing the issuance of full letters, ratified and confirmed all proceedings taken under the former order and directed the order as amended to be entered nunc pro tunc as of April 24, 1906.

I think the Surrogate's Court had jurisdiction to issue full letters of administration. The general rule that an absentee who has not been heard of for seven years may be presumed to be dead at the expiration of that period for the purpose of administering his estate, is well settled, and was last asserted by the courts in Matter of Wagener (143 App. Div. 286). If, as contended by the appellant, the court erred in issuing full letters upon an order directing temporary administration, its error was cured by the subsequent order. The petition contained all of the facts necessary to authorize the granting of full letters, and the amended order recites that the surrogate is “satisfied that the case is a proper one for the appointment of an Administratrix.” The Surrogate's Court having jurisdiction to determine as to whether White was dead or living, for the purpose of administering his estate, its decision is conclusive until revoked or set aside. (Code Civ. Proc. $ 2591.) No additional demand was necessary. If the order and letters issued thereunder are to be given the effect only of appointing the plaintiff temporary administratrix, her demand was good and this action maintainable. (Code Civ. Proc. $ 2672.)

The judgment must be affirmed, with costs.

JENKS, P. J., THOMAS, CARR and WOODWARD, JJ., concurred.

Judgment and order affirmed, with costs.

APP. DIV ,-- VOL. CXLVI. 38

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Second Departinent, October, 1911.

[Vol. 146.

In the Matter of the Petition and Application of GEORGE B.

MCCLELLAN and Others, Constituting the Board of Rapid Transit Railroad Commissioners of the City of New York, for and on Behalf of Said City, for the Appointment of Commissioners of Appraisal, etc., in Relation to Lands at Joralemon and Furman Streets, in the Borough of Brooklyn, City

of New York. THE PUBLIC SERVICE COMMISSION FOR THE FIRST DISTRICT OF

THE STATE OF NEW YORK, as Successor to the BOARD OF RAPID TRANSIT RAILROAD COMMISSIONERS FOR THE CITY OF NEW YORK, and THE CITY OF NEW YORK, Appellants; NEW YORK DOCK COMPANY and UNITED STATES MORTGAGE AND TRUST COMPANY, Respondents.

Second Department, October 27, 1911.

Water and watercourses — piers in city of New York - riparian rights

appurtenant to lands used for piers — title of city to lands under water between boundaries of projected streets - city charter, section 83, construed --subsequent grant to private owner - eminent domain - condemnation of lands to construct subway under East river – compensation to pier owners — inconsistent findings — “commerce" defined — damages for impairment of riparian rights.

The owner of piers in the borough of Brooklyn extending into the East

river has, at common law, as appurtenant to such ownership, the right to reasonable access over waters of the river between the piers, although the title to the lands beneath the waters is in the State. The owner likewise is under the duty, imposed by statute, to keep the slip between the piers dredged out so as to permit the ordinary use thereof for

commerce. Such appurtenant rights do not create any title in fee in the lands

alongside of or between the piers. Such title can only be acquired by

grant. Sections 83 to 88 of the charter of the city of New York giving to the

city control of its entire water front, subject to the rights of private owners of property, and granting to the city in fee all public streams, rivers and waters of all descriptions, and all the title and interest of the State therein, and such lands under water as are embraced in the projected boundary lines of any street intersecting the shore line, which may be in use or may be hereafter opened for public use, extending from the high-water mark out into said rivers, etc., even if not considered as a complete grant made a perinanent appropriation to the uses of the

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