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fact when the papers on this motion were served, and as soon as he learned of said fact he placed the case on the calendar this day, and therefore asks this court to deny this motion"; that an amended complaint was not served for the reason that, upon consultation, it was not deemed necessary.

These facts, offered in explanation of the presumptive failure of the plaintiff to prosecute this action with due diligence, arising from the fact that junior issues have been reached on the regular call of the calendar, are wholly insufficient, and constitute no excuse whatsoever. No one, having any responsible connection with the litigation, presents an affidavit. There is nothing to show that the plaintiff intends, or even desires, to prosecute the action. The motion was returnable on the 25th day of May, 1909, nearly 21⁄2 years after the action was at issue, and it appears without controversy that during the interim no attention was given to the action until after the service of the motion papers for a dismissal of the complaint. We have repeatedly declared the rule that where the moving papers on such a motion show a prima facie case of failure to prosecute the action with due diligence, and a satisfactory excuse for such failure is not presented, the motion should be granted, notwithstanding the fact that the plaintiff has been stirred to activity by the notice of motion, for subsequent diligence is no excuse for past negligence. Zafarano v. Baird, 80 App. Div. 144, 80 N. Y. Supp. 510; Anderson v. Hedden & Sons, 116 App. Div. 231, 101 N. Y. Supp. 585; Mladinich v. Livingston, 112 App. Div. 181, 98 N. Y. Supp. 46; Fisher Malting Co. v. Brown, 92 App. Div. 251, 87 N. Y. Supp. 37; McGrath, Adm'x, v. Murtha & Schmohl Co., 128 App. Div. 278, 112 N. Y. Supp. 679.

It follows, therefore, that the order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All

concur.

(134 App. Div. 356.)

BIER V. ROEBLING CONST. CO. (Supreme Court, Appellate Division, First Department. COURTS (91*)-PRIOR DECISIONS-STARE DECISIS.

October 22, 1909.)

Where, in a prior action for death of a contractor's servant by the collapse of a building, the Appellate Division and the Court of Appeals had both held against defendant's contention that it was an independent contractor and not responsible for the plans, and not liable for the erection and maintenance of a nuisance, such decisions were binding on the trial court in a subsequent action for death of another employé in the same catastrophe, in which the facts proved were the same as in the former case, except for additional evidence showing the faults in the plans on which the building had been constructed.

[Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 325, 326; Dec. Dig. § 91.*]

Appeal from Trial Term, New York County.

Action by Ottilia Bier, as administratrix of the estate of John Bier, deceased, against the Roebling Construction Company, for death of plaintiff's intestate. From a judgment of dismissal, plaintiff appeals. Reversed.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 119 N.Y.S.-4

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

Frank A. Acer (M. L. Malevinsky, of counsel, and Arthur Ofner, on the brief), for appellant.

Roe & McCombs (Gilbert E. Roe, of counsel, and Henry L. Scheuerman, on the brief), for respondent.

CLARKE, J. The plaintiff's intestate was an employé of the defendant, the Roebling Construction Company, which was engaged in constructing the fireproof flooring of the Hotel Darlington in the city of New York, and while so employed was killed by the disastrous collapse of said building on the 2d of March, 1904. In a previous action, entitled Haenschen, Administrator, etc., v. Roebling Construction Company, growing out of the same disaster, a judgment was obtained by the plaintiff for damages for the death of his intestate, which was affirmed by this court (124 App. Div. 920, 108 N. Y. Supp. 1134) and by the Court of Appeals (194 N. Y. 533, 87 N. E. 1120). That case was tried and determined upon the theory of nuisance, as appears from the record and briefs on file in this court, and from the memorandum of affirmance in the Court of Appeals:

"Appeal from a judgment * modifying, and affirming as modified, 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 occurred through the maintenance of a dangerous nuisance by the defendants."

We have carefully examined the record in this case, and compared it with the record in the Haenschen Case, supra, and find the facts substantially the same in the two records, with the exception that in the case at bar the plaintiff has given additional evidence tending to show the faults of the plans upon which the building was being constructed, although said plans had not been approved by the building department, and showing that said plans called for upwards of 33 tons less of steel in the framework of the building than in the first plans, which were approved by the department, but which were not followed.

The respondent claims that it was an independent contractor, in no way responsible for the making of the plans alleged to have been faulty and which were not approved, nor for their adoption by the owner of the property; that there is no proof that its own work was negligently or improperly executed, or that the material which it put in was defective; and, while it admits that the new plans were not approved by the department, it claims that it was neither its duty to file said plans nor to procure their approval, and that therefore it cannot be held liable as for the erection or maintenance of a dangerous nuisance. Each one of these claims was strongly urged in the former case, and, unless the decision of this court and the Court of Appeals had not been against them, the judgment there appealed from could not have been affirmed, for it was upon no other theory that the case was tried or argued upon appeal.

It seems unnecessary, therefore, to state in detail the facts shown by this record. The dismissal of the complaint at the close of the

tute a cause of action, when the appellate courts have determined that upon those facts there was a cause of action and sustained a judgment entered upon the verdict of a jury thereon, is obviously error.

The judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

(134 App. Div. 374.)

In re SAMMON.

(Supreme Court, Appellate Division, First Department. October 23, 1909.) ELECTIONS (§ 147*)-BALLOTS-SAME PERSON CANDIDATE OF TWO OR MORE PARTIES-FILLING VACANCIES.

Election Law (Consol. Laws, c. 17 [Laws 1909, c. 22]) § 136, providing that if no nomination is originally made by a political party or independent body, or if a vacancy exists, it shall not be lawful for the committee of such party or independent body authorized to make nominations or to fill vacancies to nominate or substitute the name of a candidate of another party or independent body for such office, it being the intention that, when a candidate of one party is placed on the ticket of another party or independent body, such nomination shall be made at the time and in the manner provided for making original nominations, is intended to prevent the committee authorized to fill vacancies from nominating a candidate already nominated on the ticket of another party or independent body, and thus presumably defeat the intention of the convention or nominators who named the committee, and does not apply where a person nominated by more than one convention or independent body declines such nominations; and in such event the committee to fill vacancies can respectively fill the vacancy on the ticket over which it has jurisdiction, though the same person is also selected by the committee of the other party or independent body.

[Ed. Note. For other cases, see Elections, Cent. Dig. 122; Dec. Dig. § 147.*]

Appeal from Special Term, New York County.

Application to the Special Term to compel the Board of Elections of New York City to place the name of John J. Sammon on the official ballot under the emblem of the Goddess of Justice and the name of Civic Alliance, to be voted for at the next ensuing election as Judge of the Municipal Court in the Third District, Borough of Manhattan. From an order denying the application, applicant appeals. Reversed, and application granted.

Argued before INGRAHAM, LAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

W. L. Rathborne, for appellant.
Terence Farley, for respondent.

PER CURIAM. It appears that one George W. Collins was nominated by the regular Republican organization and by independent nominators adopting the name and emblem of the Civic Alliance for judge of the Municipal Court in the Third district. Within the time allowed by statute Collins filed an instrument with the board of elections, which that board received, and which we consider to have been a sufficient declination of both nominations. Subsequently, and at the same mo

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

ment, there were filed with the board of elections nominations of John J. Sammon by the committee properly appointed by the Republican organization to fill vacancies and by the committee properly appointed by the Civic Alliance to fill vacancies. The board of elections refused to place Sammon's name in both columns, resting their refusal upon section 136 of the election law (chapter 17, Consolidated Laws, being chapter 22 of the Laws of 1909). That section, so far as material to the questions under consideration, provides as follows:

"When no nomination shall have been originally made by a political party or by an independent body for an office, or when a vacancy shall exist, it shall not be lawful for any committee of such party or independent body authorized to make nominations or to fill vacancies, to nominate or substitute the name of a candidate of another party or independent body for such office; it being the intention of this chapter that when a candidate of one party is nominated and placed on the ticket of another party or independent body, such nomination must be made at the time and in the manner provided for making original nominations by such party or independent body."

We do not think that the situation shown to exist in this case is within the prohibition contained in the provisions of section 136, above quoted. What was the expressed intention of that provision was to prevent the committee designated to fill vacancies from nominating to fill such a vancancy a candidate already nominated and on the ticket in the column of another party or independent body, and thus presumably defeat the intention of the convention or nominators who named the committee to fill vacancies. But where one person has been nominated by more than one convention, or by more than one independent body, and that candidate retires, the committee authorized to fill vacancies can respectively fill this vacancy on the ticket over which it has jurisdiction, although the same person is also selected by the committee of the other party or independent body.

We think, therefore, that the nomination of Sammon to fill the vacancy in both columns was valid, and that the board of elections should recognize it as a valid nomination for the office in both columns.

The order appealed from is therefore reversed, and the motion granted.

(64 Misc. Rep. 232.)

In re MILLER et al.

(Surrogate's Court, Kings County. July, 1909.)

1. WILLS (8 733*)-CONSTRUCTION-INTEREST GIVEN.

A gift of testator's residuary estate to his wife for life, to receive to her own use all the rents, profits, and income therefrom, did not give to her the mercantile profits from a business in which testator was a partner, accruing between his death and the time when the partnership affairs were finally liquidated.

[Ed. Note. For other ases, see Wills, Cent. Dig. § 1836; Dec. Dig. 733.*]

2. GIFTS (§§ 18, 62*)-DELIVERY.

Delivery is necessary to effect a gift, either causa mortis or inter vivos. [Fd. Note.-For other cases, see Gifts. Cent. Dig. §§ 29, 123; Dec. Dig. § 18, 62.*]

3. GIFTS (§ 30*)—DELIVERY-BANK ACCOUnt.

A letter from a husband to his wife, bespeaking either an intention that a savings bank account in his name should belong to his wife or an assurance that it already belonged to her, can in neither case be taken to evidence or effectuate the delivery necessary to a valid gift.

[Ed. Note. For other cases, see Gifts, Cent. Dig. § 52; Dec. Dig. § 30.*]

4. GIFTS (§ 30*)-DELIVERY-BANK ACCOUNT.

A statement by a bank depositor that an account in his name, represented by a book remaining in his possession, is the property of another, does not tend to show a previous delivery or assignment of the subject of the alleged gift.

[Ed. Note. For other cases, see Gifts, Cent. Dig. § 52; Dec. Dig. § 30.*] 5. EXECUTORS AND ADMINISTRATORS (§ 506*) — AccOUNTING BY-BURDEN OF PROOF.

A statement by an executrix in her account that proceeds of a sale of bonds by her were embraced in the schedule of her general cash receipts must prevail, in the absence of contrary proof, and the burden is upon the person objecting to show that she has not accounted therefor.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 2171; Dec. Dig. § 506.*]

6. WILLS (§ 733*)-ConstruCTION-TIME OF COMMENCEMENT OF INTEREST. A provision in testator's will that, if the income from his personal property should be less than $5,000 in any year during his wife's life, he thereby authorized a sale of personalty to provide an annual income of $5,000, or so much thereof as might be necessary for personal and living expenses, was for the maintenance of his wife, and her life estate, therefore, began at his death, and her right to the income then attached.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1836; Dec. Dig. § 733.*]

7. Executors ́AND ADMINISTRATORS (§ 118*)—Loss of AssETS—LIABILITY. An executrix is not subject to surcharge for losses incurred as life tenant.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. § 472; Dec. Dig. § 118.*]

Judicial settlement of the account of Theodore F. Miller and another, as executors of the will of Mary F. Farnham, deceased, of her acts and proceedings as executrix of the will of Stephen H. Farnham, deceased. Account settled.

Dykman, Oeland & Kuhn, for accounting executors.

James C. Church, for administrator c. t. a. of Stephen H. Farnham. Henry Wynans Jessup, for residuary legatee of Mary F. Farnham. Studin & Sonnenberg (William Reeda, of counsel), for next of kin and residuary legatees of Stephen H. Farnham.

KETCHAM, S. This is an accounting by executors of a deceased executrix. The will of the original decedent, after providing for certain annuities, proceeds in part as follows:

"Third. All the rest, residue and remainder of my estate, both real and personal, I give, devise and bequeath to my wife, Mary Frances Farnham, for and during her natural life, to possess, use and occupy the same, or any portion thereof, and to receive to her own use and benefit all of the rents, profits and income therefrom. The provisions of this will in favor of my said wife are to be accepted by her in lieu of all dower or claim of dower upon my estate."

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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