App. Div.]

First Department, May, 1908.

right to collect damages accruing down to the time of the conveyance by the plaintiff to Bernstein and Davis; and under the twenty-fifth finding of fact I do not see how this judgment can be sustained.

TITLE GUARANTEE AND TRUST COMPANY, Appellant, v. FANNY ARNOT HAVEN and MATHIAS H. ARNOT, Respondents.

Appeal from a judgment entered upon the report of a referee dismissing the complaint upon the merits.

Judgment affirmed, with costs.

Present Ingraham, McLaughlin, Laughlin, Houghton and Scott, JJ.

HOUGHTON, J. (concurring): In the present case the forged check went to pay taxes upon defendants' lands which had been levied during the lifetime of their testator. These taxes were a debt against the testator's estate. (Smith v. Cornell, 111 N. Y. 554) The money, therefore, did not go to relieve defendants' real property from a lien because it was the duty of the testator's estate to pay them and defendants could have compelled it so to do. There is no finding that there was no personalty in the Ogden estate from which the taxes could be paid, and it cannot be assumed there was none. The money in the present case was paid, therefore, not for the benefit of the defendants, but for the benefit of the Ogden estate, and any cause of action which the plaintiff may have lies against that estate rather than these defendants. Because of this fact I concur in an affirmance of the judgment. Laughlin, J., concurred.

In the Matter of the Application of the MANHATTAN RAILWAY COMPANY, Respondent, v. JOHN JACOB ASTOR and Others, Appellants, Impleaded with AVA W. ASTOR and Others, Defendants, Relative to Acquiring Title, etc. Eminent domain - statute permitting construction of elevated road on city street right to condemn easements to erect stairways on intersecting street. Appeal from an interlocutory judgment entered after trial at Special Term. Judgment affirmed, with costs. No opinion.

Present Ingraham, McLaughlin, Laughlin, Clarke and Scott, JJ. Dissenting opinion by Scott, J.

SCOTT, J. (dissenting): The plaintiff seeks to condemn certain easements of light, air and access in order to erect, wholly in Houston street, stairways leading to its stations at the intersection of Houston street and the Bowery. It possesses statutory authority to construct and operate an elevated railroad "over, through and along the Bowery," but I am unable to find that it has express authority to occupy any part of Houston street for that purpose, and it is now definitely settled that the right to construct such a railroad in a street or avenue does not include the right to encroach upon or use any portion of an intersecting street for the purpose of erecting or maintaining a station and stairways. (Bremer v. Manhattan R. Co., 191 N. Y. 333.) When a corporation claims the right to acquire lands under a delegation of the power of eminent domain it must show express authority of law to justify the claim. (Rensselaer & Saratoga R. R.

First Department, May, 1908.

[Vol. 126. Co. v. Davis, 43 N. Y. 146.) The street which it is now proposed to occupy was not a part of the route of the railroad as originally authorized, and has not been included in or added to the route by any competent authority, and for that reason I am unable to find any authority to acquire property rights in Houston street upon which a proceeding of this nature can be based. The recommendation of the Railroad Commissioners upon which reliance is placed merely goes to the extent of recommending that additional stairways be constructed at the Houston street station. It does not specify that they shall be constructed in Houston street, and it appears that they can be constructed in the Bowery which is within the petitioner's authorized route. No consent or approval has been obtained from the late rapid transit commission, or the present Public Service Commission, or any local authority. I am, therefore, of opinion that the petitioner has failed to show any authority to occupy Houston street for the construction of the stairways and hence cannot acquire the appellants' property therein by the right of eminent domain. The interlocutory judgment should be reversed and the petition dismissed.

MARY HANEY, Respondent, v. THE CITY OF NEW YORK, Appellant, Impleaded with JOSEPH G. MILLER.

Negligence—municipal corporation — injury from collapse of temporary foot bridge — damages — judgment reversed on ground that the evidence did not sustain a contention that certain internal injuries resulted from the accident.

Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial. SCOTT, J. Appeal by defendant from a judgment upon a verdict in favor of plaintiff. The injury complained of resulted from the collapse of a temporary foot bridge at the corner of Eighteenth street and Fifth avenue, in the city of New York, and the facts do not differ substantially from those shown in Parks v. City of New York (111 App. Div. 836; 187 N. Y. 555). There is, therefore, no doubt as to the defendants' liability, and the only question involved in the appeal is as to the amount of the damages recovered. The plaintiff suffered a Potts fracture of one ankle, for which it was conceded that she is entitled to recover. She claims, however, to be entitled also to recover for internal injuries which, in time, necessitated a serious surgical operation. That she did submit to such operation is unquestioned, but we consider that the evidence, and especially the weight of the expert medical testimony, is heavily against the plaintiff's claim that her internal ailments, which rendered the operation necessary, resulted from the accident of which she complains. It follows that the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event, unless the respond. ent stipulates to reduce the verdict to $3,000, in which case the judgment as thus reduced will be affirmed, without costs in this court. Ingraham, Laughlin, Clarke and Houghton, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce verdict to $3,000, in which case judgment as so modified and order affirmed, without costs. Settle order on notice.

App. Div.]

First Department, May, 1908.

Edward Hurley, Respondent, v. Barnet Feinberg, Appellant.- Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment by deducting therefrom $334.12, being $323.60 and $10.52 interest; in case such stipulation is given, judgment as so modified and order affirmed, without costs. No opinion. Settle order on notice.

William Weling and Others, Respondents, v. Francis J. Nekarda and Others, Appellants.- Order reversed, with ten dollars costs and disbursements, and motion for resettlement granted, with ten dollars costs, the order being resettled by inserting a recital that the complaint and amended complaint were read on the motion. No opinion. Settle order on notice.

In the Matter of the Application of the New York, Westchester and Boston Railway Company, Respondent, to Acquire Title to Lands of Arabella D. Huntington and Henry E. Huntington, Appellants.-Order affirmed, with costs. No opinion.

Samuel M. Brickner, Respondent, v. Joseph H. Sulzbacher and Albert Ulmann, Composing the Firm of J. H. Sulzbacher & Company, Appellants.- Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs. No opinion.

Samuel M. Brickner, Respondent, v. Joseph H. Sulzbacher, as Surviving Partner of the Firm of J. H. Sulzbacher & Company, Appellant.- Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs. No opinion.

Addelaide E. Scott, as Administratrix, etc., of William A. McGowan, Deceased, Appellant, v. Nauss Brothers Company, Respondent. - Order affirmed, with costs. No opinion.

Richard V. Harnett & Company, Incorporated, Respondent, v. Bethoven Englander, Appellant.-Judgment affirmed, with costs. No opinion. Mary M. Austen, Respondent, v. George J. Faour and Others, Appellants.— Judgment affirmed, with costs. No opinion. (Ingraham and Laughlin, JJ.,

dissenting.)

Mark N. Cormack, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.- Determination affirmed, with costs. No opinion. (Ingraham, J., dissenting.)

Hugh J. Reilly, Respondent, v. Frank Steinhart, Appellant.— Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs. No opinion.

Nellie Euretta Canty, Appellant, v. Matilda E. Henderson, Individually and as Executrix, etc, of John C. Henderson, Deceased, and Others, Respondents.— Judgment affirmed, with costs, with leave to plaintiff to amend on payment of costs. No opinion.

Samuel Roseff and Israel Lebowitz, Respondents, v. Abraham Ruth and Herman Cohen, Appellants. - Judgment affirmed, with costs. No opinion.

Samuel W. Levine, Respondent, v. United States Banking Company, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion.

First Department, May, 1908.

[Vol. 126.

In the Matter of Alexander McGarren, Deceased.-- Decree affirmed, with costs. No opinion.

The People of the State of New York v. Walter Henry.-Motion denied on conditions stated in order.

The People of the State of New York v. Frank Franzone.- Motion granted. In the Matter of Woodlawn Cemetery.- Motion granted, with ten dollars costs. Arthur J. Gormley v. Conrad M. Braker.- Motion denied, with ten dollars costs. Town Topics Company v. Peter F. Collier.-Motion denied, with ten dollars costs.

W. D. Mann v. Peter F. Collier.- Motion denied, with ten dollars costs. Anna Woerishoffer v. Sydney W. Peoples. Motion denied on terms stated in order.

-

In the Matter of Mabel R. Gushing-- Motion granted, with ten dollars costs. John S. Jones v. George J. Gould and Another.- Motion granted, with ten dollars costs.

Giovan batistta Tiscione v. Brooklyn Heights Railroad Company.- Motion granted, with ten dollars costs.

Bonniford Leslie v. Firemen's Insurance Company.— Motion granted, with ten dollars costs.

Alfred L. Hodge v. International Registry Company.- Motion denied on terms stated in order.

Alice R. Putraw v. Hester P. Lord. — Motion granted, with ten dollars costs. Covell & Crosby Company v. Ralph G. Lewis and Another.-Motion granted, with ten dollars costs.

Manufacturers' Commercial Company v. Henry Blitz.-Motion denied, with ten dollars costs.

James Gribble v. Raymond Van Praag Company.— Motion denied, with ten dollars costs.

Ernest M. Burrow v. Theodore Marceau.- Motion denied, with ten dollars costs.

Paul Gross v. Hugo Gorsch.-Motion denied, with ten dollars costs.

James M. Holland v. Augustus H. Grote.- Motion granted; question certified. Michael Romer v. Standard Plunger Company.- Motion denied, with ten dollars costs.

Ada O. Van Heusen v. De Mercy Argenteau.-Motion granted; question certified.

Hapgoods v. J. L. Crawford.— Motion granted as in memorandum. Settle order on notice.

George Renault v. Simpson-Crawford Company. Samuel Baumann v. Charles Dochterman. Templar Saxe v. Shubert Theatrical Company. Sigmund Ernst v. Antoinette Loeb. — Applications denied, with ten dollars costs in each case. Baltimore and Ohio Railway Company v. Charles LaDue and Another.Application granted.

Milton G. Bucky v. Ben Franklin Insurance Company.- Motion granted. In the Matter of Blanche L. Andrews.- Motion granted on conditions stated in memorandum. Settle order on notice.

App. Div.]

First Department, May, 1908.

In the Matter of Frank M. Hardenbrook.- Reference ordered. Settle order on notice.

Beatrice Dreyfus, Appellant, v. Emil Dreyfus, Respondent.- Motion granted so far as to vacate the order dismissing the appeal on condition that the appellant have her appeal ready for argument at the October term. Settle order on notice.

James Jeremiah Enright, Respondent, v. John Boyd, Individually and as Trustee for James J. Enright, and Others, Impleaded with Palmer Mountain Tunnel and Power Company, Appellant.- Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and answer on payment of costs. No opinion.

Milton S. Sommerich and Others, Respondents, v. W. A. Squire & Company, Appellant.— Judgment and order affirmed, with costs. No opinion. (Scott, J., dissenting.)

Joseph Harris, as Trustee in Bankruptcy of the Pequod Brewing Company, Bankrupt, Respondent, v. Arthur Wells, Appellant. — Judgment affirmed, with costs. No opinion.

Henry W. Cane, Respondent, v. Gustav Becker, Appellant.- Judgment and order affirmed, with costs. No opinion.

Mercy M. Plum, Respondent, v. Fedele Rinaldini, Appellant, Impleaded with Anna Rinaldini, His Wife, and Others.- Judgment affirmed, with costs. No opinion.

Elizabeth Reich, Respondent, v. Eva S. Cochran and Others, as Executors and Trustees, etc., of William F. Cochran, Deceased, Appellants - Judgment affirmed, with costs. No opinion.

Trust Company of New York, Respondent, v. Universal Talking Machine Company and Universal Talking Machine Manufacturing Company, Appellants, Impleaded with George H. Robinson and Others. - Judgment affirmed, with costs, with leave to defendants to withdraw demurrer and to answer on payment of costs. No opinion.

City Real Estate Company, Appellant, v. William F. King, Respondent, Impleaded with Martha K. King. Judgment affirmed, with costs, with leave to plaintiff to amend on payment of costs. No opinion.

In the Matter of the Petition of Carrie Boskowitz, Appellant, for the Payment of Funeral Expenses of Ignatz Boskowitz, Deceased. Jesse L. Boskowitz, as Administrator, etc., of Ignatz Boskowitz, Deceased, Respondent.- Order affirmed, with costs. No opinion.

Town Topics Publishing Company, Appellant, v. Peter F. Collier and Robert J. Collier, Respondents. - Order affirmed, with ten dollars costs and disbursements. No opinion.

William D. Mann, Appellant, v. Peter F. Collier and Robert J. Collier, Respondents. Order affirmed, with ten dollars costs and disbursements. No opinion.

Francis Millward Wilson, Appellant, v. The Puritan Steamship Company, Limited, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion.