App. Div.]

Fourth Department, July, 1915.

Cora A. Foote, as Administratrix, etc., Respondent, v. Pennsylvania Railroad Company, Appellant.— Judgment and order affirmed, with costs. All concurred, except Lambert and Merrell, JJ., who dissented. Ella M. Adsit, Respondent, v. Franklin M. Adsit, Appellant.-Judgment and order affirmed, with costs. All concurred.

Alfonso Adams, Respondent, v. City of Rochester, Appellant.— Judgment and order affirmed, with costs. All concurred.

Lillian E. Stafford, Appellant, v. Brotherhood of Railroad Trainmen and Others, Respondents.- Judgment affirmed, with costs. All concurred. The People of the State of New York, Plaintiff, v. State Bank of Forestville, Defendant. In the Matter of the Final Accounting of Frank E. Smith, as Receiver, etc.- Decree affirmed, with costs. All concurred. George W. Pearson, Respondent, v. Frances O'Hern, Appellant.Judgment affirmed, with costs. All concurred.

Geneva National Bank, Respondent, v. The Frank Brewery, Appellant. - Judgment and order affirmed, with costs. All concurred.

Ernest L. Beebe, an Infant, etc., Respondent, v. New York, Ontario and Western Railway Company, Appellant.-Judgment and order affirmed, with costs. All concurred.

Ernest L. Beebe, an Infant, etc., Respondent. v. New York, Ontario and Western Railway Company, Appellant.- Order denying motion for new trial upon ground of newly-discovered evidence affirmed, with ten dollars costs and disbursements. All concurred.

In the Matter of the Application for Voluntary Dissolution of the Chas. Hetzler's Sons, Inc., a Domestic Corporation. Charles P. Hetzler and Another, Appellants; John E. Hetzler and Another, Respondents.Order affirmed, with ten dollars costs and disbursements. All concurred. Buffalo Board of Trade and Others, Respondents, v. Francis G. Ward, as Commissioner of Public Works of the City of Buffalo, New York, and Others, Appellants.- Judgment affirmed, with costs. All concurred, except Foote, J., who dissented upon the authority of People ex rel. Adams Co. v. Woodbury (88 App. Div. 443).

Louis Hagen, an Infant, etc., Plaintiff, v. The Crosby Company, Defendant.- Plaintiff's exceptions sustained and motion for new trial granted, with costs to the plaintiff to abide the event. Held, that upon the evidence a question of fact was presented both as to defendant's negligence and the absence of plaintiff's contributory negligence. All concurred.

Earl J. Davis and Another, Appellants, v. International Railway Company, Respondent.— Order affirmed, without costs and without prejudice to a renewal of the application in the event that the Court of Appeals shall set aside the stay. Held, that the associate judge of the Court of Appeals had authority to grant a stay. Whether the order was improvidently granted is a question which this court should not determine. All concurred.

John Kagelmacher, Respondent, v. International Railway Company and Another, Appellants.- Motion of defendant International Railway Company for leave to appeal to Court of Appeals denied, with ten dollars costs.

Third Department, September, 1915.

[Vol. 170. Miles Brott, as Executor, etc., Appellant, v. Auburn and Syracuse Electric Railroad Company, Respondent.― Motion for reargument denied, with ten dollars costs.

In the Matter of Proving the Last Will and Testament of Louisa Williams, Deceased. — Motion granted and appeal dismissed, without costs. Catherine A. Cowan, Appellant, v. Empire United Railways, Inc., Respondent.- Appeal dismissed, with twenty dollars costs to respondent upon stipulation filed.

In the Matter of Frederick T. Cahill, an Attorney at Law.— Upon reading and filing certified copy of record of conviction of said Frederick T. Cahill of the crime of grand larceny, second degree, on June 7, 1915, by County Court of Oswego county, the name of said Frederick T. Cahill is stricken from the roll of attorneys and counselors at law.

Augusta C. Stafford, Plaintiff, v. Frank B. Stafford, Defendant. Kate Heins, Corespondent, Appellant.-Stay granted until the opening day of September term of this court upon condition that the appellant be ready for argument and argue the appeal upon that day, or as soon as reached. Gilbert Mautz, Respondent, v. Consolidated Rendering Company and Others, Appellants. — Judgment affirmed, with costs. All concurred, except Merrell and Foote, JJ., who dissented and voted for reversal as to the Consolidated Rendering Company on the ground that it does not appear that said company was polluting the stream in question at the time the action was commenced.

In the Matter of the Appointment of a Trustee of the Supreme Court Library at Buffalo, to Fill the Vacancy Caused by the Death of William B. Hoyt. Mr. Charles Diebold, Jr., a lawyer of Buffalo, appointed to fill the vacancy.

THIRD DEPARTMENT, SEPTEMBER, 1915.

In the Matter of the Petition of the CITY OF AMSTERDAM, Respondent, to Widen, Alter and Straighten a Part of Bridge Street, in the City of Amsterdam, N. Y., v. W. N. CARPENTER Co., Appellant.

Appeal from a final order of the Supreme Court in a condemnation proceeding, entered in the Montgomery county clerk's office on the 24th day of November, 1914, disapproving and disaffirming an award of $500 to appellant as owner of the bed of the Mohawk river to the thread of the stream adjacent to the uplands described in the petition and condemned.

PER CURIAM: Practically the same question which is presented by this appeal has been considered and decided by us in Danes v. State of New York (169 App. Div. 443), and the opinion in that case is being handed down at this time. Therefore, in this matter, the order, so far as appealed from, is reversed on the opinion in Danes v. State of New York (supra). And the award of $500 made by the Commission to the landowner for his rights in the bed of the Mohawk river is reinstated. All concurred, except Smith, P. J., and Lyon, J., dissenting. Order affirmed, with costs.

App. Div.]

Third Department, September, 1915.

CLIFFORD WILLIAMS, by ROY WILLIAMS, His Guardian ad Litem, Appellant, v. BESSIE FALCONBERG, Impleaded with GEORGE H. BRESSETTE, Respondent.

Motor vehicle- negligence-pleading.

Appeal from an order of the Supreme Court, entered in the Columbia county clerk's office on the 28th day of January, 1915, and also from a judgment entered on the 1st day of February, 1915, upon said order.

Order and judgment reversed, with costs, and motion denied, without costs, upon the authority of Ferris v. Sterling (214 N. Y. 249). All concurred, except Kellogg, J., dissenting, in opinion.

KELLOGG, J. (dissenting): The contention raised by the demurrer of the defendant Bressette is that the complaint does not state a cause of action against him. It is alleged that while the plaintiff was lawfully upon the highway, an automobile "owned by the defendant Bressette and operated and driven by the defendant Falconberg." struck and injured the plaintiff, and that the automobile was negligently driven and controlled. The liability for the plaintiff's injury rests solely upon the person controlling the car. The owner of the car is not liable as owner; he can only be liable in this case if Falconberg, when she was negligently controlling the car, was his servant. Undoubtedly the fact that the defendant owned the car, upon the trial, would be some evidence that ne was controlling it. The complaint undertakes to define the relations of Falconberg and Bressette to the accident. The allegation that Bressette owned the car shows that Falconberg had nothing to do with the ownership; the allegation that Falconberg operated and drove the car makes it clear that Bressette was not operating and driving it. If Falconberg was the agent of Bressette then Bressette was operating and controlling the car by his agent. The complaint impliedly negatives agency; under the circumstances it was necessary to allege it. The case is on all fours with Rubin v. Bierman (87 Misc. Rep. 174) where the Appellate Term, composed of Seabury, Cohalan and Bijur, JJ., unanimously held such a complaint insufficient. The trial justice here evidently based his determination upon that decision. Ferris v. Sterling (214 N. Y. 249) is in no way in conflict with that decision. There the defendant's son, in charge of an automobile, killed the plaintiff's intestate. The defendant and son claimed the car belonged to the son; the license, however, by the Secretary of State, was issued to the father, also the insurance and accident policies were in his The jury found that the father owned the car and that the son was engaged in his business at the time of the accident. The nature of the defendant's business the court considered important as bearing upon the question of fact. He kept a livery stable, but in his ill-health the son managed it for him. The claim that the automobile was not included in the business was not credited. The court charged the jury "that even if the defendant owned it, there was no liability unless the son at the time of the collision was engaged in the defendant's business." The Court of Appeals recognized the charge as proper. The form of the pleadings was

name.

Third Department, September, 1915.

[Vol. 170. not mentioned. That case, therefore, in no way controls this case, which is strictly one of pleading and not of evidence. A complaint should contain a plain and concise statement of the facts, and it is an elementary rule of pleading that evidence is not to be alleged. Whether Bressette is or is not liable does not appear from the complaint; proof of his ownership upon the trial would be some evidence of control. The ownership creates no liability; the control is the important thing. Falconberg was controlling the car. If she was controlling it as agent for Bressette, that fact should have been alleged. Conceding everything alleged in the complaint, it cannot be said that Bressette is necessarily liable. He may and he may not be liable; that fact cannot be ascertained until the evidence is in. A complaint should allege the necessary facts in such a manner that if every allegation in it is true liability necessarily follows. It is common experience that a car, as well as all other kinds of personal property, is not always controlled by or for the owner. It may be leased, loaned or taken; many conditions may arise where the mere fact of ownership is entirely immaterial in fixing a liability for the negligent control of the car. It was easy to allege, if true, that Falconberg was the servant of Bressette, or that Bressette controlled the car through her. Evidently the pleader had in mind that the owner of the car, on account of the ownership, was liable without regard to the circumstances of its operation. The essential fact to be alleged was the negligent control of Bressette through Falconberg; that allegation is wanting. The demurrer was properly sustained.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. FRED KINGSLEY, Appellant.

PER CURIAM: We think, in the interests of justice, that this judgment should be reversed on the ground that the defendant should have been permitted to withdraw a juror and make a motion at Special Term for leave to amend his answer. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.

Globe Woolen Company, Appellant, v. Utica Gas and Electric Company, Respondent.— Appeal from a judgment of the Supreme Court, entered in the Oneida county clerk's office on the 26th day of January, 1914. Judgment modified so as to provide that the cancellation of the contracts in suit shall be only on condition that the defendant pay to the plaintiff $21,601.48, being the amount paid by plaintiff for installation of electrical equipment, with interest from September 14, 1911, and the costs of this action. Upon making such payments the defendant shall have the right to remove such equipment so far as removal can be had without materially interfering with plaintiff's business or material injury to its property; if any injury to the property be caused by such removal the defendant shall compensate the plaintiff therefor. The clutch system and improvements placed in the mills, other than as part of the original

App. Div.]

Third Department, September, 1915.

electrical equipment above specified, by the defendant, shall remain there and shall be the property of the plaintiff, except such parts thereof as are connected with and used solely with the electrical equipment or appliances and the removal of which will not interfere with the operation of the mills by steam, which defendant may remove. All claims of the ċefendant against the plaintiff for electricity furnished for power purposes, prior to September 14, 1911, and all claims of the plaintiff against the defendant for coal furnished and for supplies other than coal, amounting to $2,015.72, and upon the guaranty of a saving of $300 a month as to each mill, and all other claims by either party against the other arising out of or under said contracts, prior to September 14, 1911, shall be deemed canceled. Within thirty days after the entry of this judgment, taxation of costs, and notices thereof, the defendant shall notify the plaintiff whether it elects to accept the conditions under which these contracts are canceled, and shall make tender of the payments heretofore named. In case of the failure to so elect and make such tender, the contracts shall be deemed valid and binding, and the plaintiff may apply to the court for the assessment of damages as for a contract broken, which damages and costs it shall then be entitled to. After the payments are made, unless the parties shall agree as to the time, place and manner of the removal of the fixtures and the articles to be removed, and the restoration of the building as herein provided, the same shall be done at defendant's expense under and pursuant to the directions of a referee to be appointed by the Special Term. As thus modified the judgment is affirmed, without costs. The court bases this decision upon its finding that Maynard was not guilty of active fraud or bad faith in the transaction. All concurred, except Kellogg and Lyon, JJ., who voted for reversal, they finding that the contracts were made in good faith and that the fact that Maynard was a director in the defendant company did not influence them or have anything to do with their making or affect their validity; that the contracts, however, resulted solely from a mutual mistake of fact, and the defendant should be allowed to rescind for that reason upon the terms stated in the decision made; basing the right to rescission solely upon that ground they approve of the relief granted by the judgment directed. Robert A. Beatty v. John B. Ireland and Others.- Motion granted by default.

Fanny Bedell, an Infant, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.- Judgment and order reversed on the ground the damages are excessive and new trial granted, with costs to appellant to abide event, unless the plaintiff stipulates to reduce the verdict to $5,000; if so stipulated, the judgment is so modified and as modified judgment and order affirmed, without costs to either party. All concurred, except Howard and Woodward, JJ., who voted for

affirmance.

Helen A. Bunyan, as Executrix, etc., and Others v. Commissioners of the Palisades Interstate Park and Others.- Motion for leave to go to the Court of Appeals granted, and question certified: Does the complaint state facts sufficient to constitute a cause of action? Motion for a stay