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App. Div.] Second Department, October, 1911. and Others, and Joseph Stejakowski, as Councilman, and Others, Appellants. (No. 2.)- Order affirmed, with ten dollars costs and disbursements. All concurred, except McLennan, P. J., who dissented.

Mathilde C. Wallace, Respondent, v. City of Niagara Falls and ReadCoddington Engineering Company, Appellants, Impleaded with Others.-Order affirmed, with ten dollars costs and disbursements to abide event, without prejudice to a renewal of the motion if the plaintiff shall refuse to try the case at the next Special Term. All concurred.

George W. Stallman and Edward G. Snyder, Respondents, v. Rose L. Barrowclough, Appellant.-Judginent affirmed, with costs. All concurred.

Albert Siebe, Respondent, v. International Railway Company, Appellant.— Judgment and order affirmed, with costs. All concurred.

Giuseppe Croce and Joseph Beccuti, Respondents, v. Antonio Buonomo, Appellant. — Judgment affirmed, with costs. All concurred.

Matie Herman and Another, as Administrators, etc., Appellants, v. The New York Central and Hudson River Railroad Company, Respondent.Motion granted and appeal dismissed, with costs.

Charles Dixon, Respondent, V. Cortland Snook, Appellant. Jane Mahanna, Appellant, v. Frank Philips, Respondent. James S. Otis, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. — The foregoing cases having been twice reached in their regular order upon the calendar, and twice passed, are dismissed under general rule 39.

Sarah H. Robbins, Respondent, v. Town of Evans, Appellant. — Motion for reargument denied, with ten dollars costs. Motion for leave to appeal to Court of Appeals denied.

Calvin Fogelsanger, Respondent, v. Anna Gehres, Appellant.- Motion for reargument denied, with ten dollars costs.

SECOND DEPARTMENT, OCTOBER, 1911, HERBERT Rex, an Infant, by CHARLES M. REX, His Guardian ad Litem,


Railroad, negligence - accident at crossing - improper charge. Appeal froin a judgment in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 23d day of November, 1910, and also from an order entered in said office on the 1st day of December, 1910, denying a motion for a new trial made upon the minutes.

PER CURIAM: The plaintiff has recovered a judgment against the Coney Island and Brooklyn Railroad Company and the appellant, the Long Island Railroad Company, for injuries sustained in August, 1907, at a point in the borough of Brooklyn where the tracks of the two companies cross at right angles, a place known as “Manhattan Crossing.” The plaintiff was a passenger on one of the trolley cars of the Coney Island Second Department, October, 1911.

(Vol. 146. and Brooklyn railroad, and the tracks of the Long Island railroad were used at the time by a dirt train engaged in carrying gravel and dirt for certain improvements then in progress. The train was backing at the time and collided with the trolley car at the crossing. The charge of the learned trial justice was very inflammatory and hostile to the appellant, and so obviously prejudicial and unfair as to require a new trial in the interests of justice. The following may be instanced as indicative: “But the real, the serious question as to the conduct of the Long Island Railroad Company is whether they were lacking in approaching the crossing, in approaching the point of collision with that stealthy tread whichperhaps I should not say that – but in approaching in the way they did approach the crossing.

If the engine had been on the other end; if it had been pulling the train instead of backing it, if something at the front end were making a noise, a compelling noise, which an approaching engine makes, do you believe that the motorman would have taken that trolley car across the track? Do you believe that the conductor of that car would ever have lacked such appreciation of the danger of the situation as would have led him to the incautious beckoning to his motorman to come forward? If that train had been making a noise, a compelling noise on the forward end, do you believe that either of the men in charge of that trolley would have taken the chances of trying to go across? Now, that is where, if anywhere, the serious question of negligence on the part of the Long Island Railroad Company lies. They are running a train tail end first, and the only living thing that is within 450 feet of the front of it is one man standing on top of the dirt with which the car is loaded; making no noise, making no signals, for all that the evidence shows as idle as the dirt he stood on, as far as any warning is concerned to anybody undertaking to cross his path. * The question is not a question of right of way at all; not a question of whether they should have kept back; pot a question of right of way, but whether they came with such sound of trumpets as was necessary to prevent other people using the crossing from being lulled into a false belief of security.

The idea that a railroad, because it has the right of way, can crush people to death absolutely, is a proposition too monstrous to be broached. ligence in this case is not in failing to keep back on the part of the Long Island Railroad Company, if it exists, the negligence is in failing to approach the crossing, as I said before, with a flourish of trumpets which would have given notice that they were there, and which nobody could have failed to understand and know.” The judgment and order should be reversed. Jenks, P. J., Hirschberg, Burr and Rich, JJ.,

concurred; Woodward, J., dissented. Judgment and order reversed and new trial granted, costs to abide the event.


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App. Div.]

Second Department, October, 1911.

THOMAS SAWYER, an Infant, by THOMAS C. LARKIN, His Guardian ad
Litem, Respondent, v. DRAVO CONTRACTING COMPANY, Appellant.

Master and servant - negligence -- inspection.
Appeal by the defendant froin a judgment of the Supreme Court,
entered in the office of the clerk of the county of Westchester on the 23d
day of January, 1911, in favor of the plaintiff; also from an order entered
in said clerk's office on the 23d day of February, 1911, denying a motion for
a new trial.

Judgment and order affirmed, with costs. No opinion. Thomas, Carr, Woodward and Rich, JJ., concurred; Burr, J., read for reversal.

BURR, J. (dissenting): I dissent. the master was ot negligent for failing to provide a safe place to work, the superintendent was under no obligation to inspect and see whether it was safe. The degree of care required of a superintendent is no higher than that required of the master. It possibly may be that this case does not fall within the doctrine of Citrone v. O'Rourke Engineering Const. Co. (188 N. Y. 339), but plaintiff's counsel, to avoid a possible exception, conceded that it did. When he conceded that, he conceded away his case, and plaintiff should have been nonsuited. It is impossible to tell under what rule the jury acted.



Practice - vacating judgment. Appeal by the plaintiff from an order of the Municipal Court of the city of New York, borough of Queens, made on April 27, 1911, setting aside a judgment in his favor.

THOMAS, J.: In this action the plaintiff sues for broker's commissions, stipulated in the contract for the sale of real estate. Both defendants interposed a general denial and were present at the trial. George Jung was sworn, and as plaintiff's affidavit shows, their lawyer was present, but asked that his appearance as such be not noted. Judgment was had for the plaintiff, and thereafter a motion was made to vacate the judgment upon grounds not stated, which was done, and from the order this appeal is taken. The judgment could not have been vacated on the ground that there was a default, for there was none, nor on the ground of newly-discovered evidence, for nothing of the kind is claimed; nor could fraud in the procurement of the judgment have been the basis of the court's action, for none appears. It is true that the defendants claim that they were induced to enter into the contract by plaintiff's fraud, but that is no ground for vacating the judgment. I can find no reason for the court's action. The order should be reversed, with costs. Jenks, P. J., Burr and Rich, JJ., concurred; Hirschberg, J., dissented. Order of the Municipal Court reversed, with costs.

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Second Department, October, 1911.

[Vol. 146.

In the Matter of the Petition of PASQUALE AULETTA, Appellant, to

Revoke and Cancel Liquor Tax Certificate No. 12,309, Issued to OTTO LEIBHOLZ, Respondent.

Intoxicating liquors revocation of license dwelling house. Appeal by the petitioner, Pasquale Auletta, from an order of the Special Term, entered in the office of the clerk of the county of Westchester on the 25th day of May, 1911.

THOMAS, J.: On September 30, 1910, Leibholz, respondent, succeeding to the saloon of one Freygang, applied for a liquor license for the year begin ning October 1, 1910, and secured it. He did not obtain original consents from persons within the limits required, but referred to and relied upon the consents given for the business to Freygang, whereby the latter obtained a license upon his application in March, 1910, expiring October 1, 1910. In his application Freygang stated that there were no buildings occupied exclusively for dwellings within the limited area. The petitioner seeks to revoke the license upon the ground that his house was such a dwelling and that the answer was false. The petitioner's house is a tenement house and was used exclusively for a dwelling house, although petitioner in his contract for a telephone requests the company “to establish at his Bus.

a telephone station,” and on the contract appears “ Matter for Telephone Directory. Auletta P. Contr., 8 Sterll’g Av. Yonkers." The petitioner states that there had not been for several years a business sign on his house, and at first he said that he never had one there. Several witnesses testified that there was no sign there indicating a business at the time of the application, and several that there was such sign. It is quite clear that it was used exclusively for dwelling purposes within the reasonable use of such expression. The order should be reversed, with ten dollars costs and disbursements, and the license revoked, with ten dollars costs. Jenks, P. J., Burr and Rich, JJ., concurred; Hirschberg, J.. dissented. Order reversed, with ten dollars costs and disbursements, and application to cancel license granted, with ten dollars costs.

LOUIS HALPERN, Appellant, v. BROOKLYN SAVINGS Bank and Others,

Respondents. (No. 2.) Mortgage agreement to hold part of money for stated use disposition

of sum. Appea! by the plaintiff from a judgment of the Special Term, entered in the office of the clerk of the county of Kings on the 23d day of May, 1911, dismissing the complaint. Judgment affirmed, with costs. No opinion. Jenks, P. J., Carr, Woodward and Rich, JJ., concurred; Thomas, J., read for reversal.

THOMAS, J. (dissenting): The Fein-Ball Company on July 19, 1909, borrowed $80,000 from the Brooklyn Savings Bank, secured by mortgage, and $1,000 of it was delivered by the mortgagor to the Title Guarantee and Trust Company to be held until consents were obtained to the mainteApp. Div.] Second Department, October, 1911. nance of a retaining wall encroaching on adjoining land, or if such consent could not be obtained until another retaining wall was erected, and in default of either of these things, the money less expenses was returnable to the Fein-Ball Company, or at the option of the mortgagee to apply said money on account of the reduction of the principal of said mortgages.” Pursuant to a contract of sale dated April 29, 1910, the Fein-Ball Company by deed dated June 6, 1910, conveyed the premises to one Brown, who later conveyed to Craig. The grant to Brown was in consideration of $100,000, $80,000 of which was to be and was met by deducting the mortgage at the stated amount of $80,000, and was subject to the encroachment. On September 1, 1910, the Title Guarantee and Trust Company paid the money to the mortgagee, and it was applied on the mortgage, thereby reducing it to $79,000. This action is to restore the lien of the mortgage to $80,000, to enable the mortgagee's assignee to have the benefit of the $1,000. The learned trial justice considered that “The agreement for the deposit and removal of the encroachment or reduction of the mortgage inured to the benefit of Brown." Brown was an absolute stranger to the agreement, and solemnly agreed to take the land with its encroaching wall, and to make the land a primary recourse for $80,000. And yet it has been decided that the $1,000 shall be taken from the mortgagor, and that it was properly applicable towards the discharge of the mortgage.

The money stood in the place of the encroachment. Brown agreed to take the land burdened with the encroachment, and yet he gets the benefit of the $1,000. Hence the contract of the Fein-Ball Company is recast, so that Brown is paid for an encroachment, which he assumed, and the mortgage, which he used to meet $80,000 of the purchase price, is in part paid with the money of his grantor. So Brown, instead of assuming the encroachment, as he said that he would, is paid for it, and instead of paying $100,000 for the property, pays for it $99,000. In accord with such decision, if the whole $80,000 had been withheld as was the $1,000, Brown would have had his mortgage paid in its entirety, at the expense of his grantor, although the parties appointed the land to the payment of the whole $80,000, and the company would receive but $20,000 for its land, although it sold it for $100,000. The money belonged to the Fein-Ball Company, and was delivered in trust for a purpose quite remote from Brown. The purpose failed, and the money was payable to the company unless the mortgagor exercised an option to receive and apply it. Meanwhile the land was sold under an agreement that gave the purchaser no legal or equitable right to the money, and to apply it on the mortgage is to take it from the Fein-Ball Company and give it to Brown. It would be strange if a court of equity were so feeble that it could not protect the mortgagee, and save the Fein-Ball Company from paying in part what its grantee agreed that his land should pay. It is a simple matter to decree that the application of the money to the mortgage shall not discharge it as to the land, but that it shall be held as a secondary security for the debt of $80,000. This does not harm the mortgagee, and Brown or his successor in title is thereby compelled to do what he agreed to do, and is not helped to avoid doing it by use of the money of the party to whom he made the promise to do it.

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