KLAUDER-WELDON DYEING MACH. LAWRENCE v. LITTLEFIELD et al. (SuCO., Respondent, v. GILES, Appellant. (Supreme Court, Appellate Division, First Departpreme Court, Appellate Division, Third Department. April 30, 1915.) Action by Julia M. C. ment. March 3, 1915.) Action by the Klau- Lawrence against Charles E. Littlefield and der-Weldon Dyeing Machine Company against others. No opinion. Motion granted; question John H. Giles. No opinion. Judgment unan- certified. Order filed. See, also, 152 N. Y. imously affirmed, with costs, upon the opin- Supp. 130. ion in Klauder-Weldon Dyeing Machine Co. v. Weldon, 151 N. Y. Supp. 1068, decided herewith. KOEHNE, Respondent, v. HOTEL ASTOR, Inc., Appellant. (Supreme Court, Appellate Division, First Department. March 12, 1915.) Action by Joseph Koehne against Hotel Astor, Incorporated. T. H. Lord, of New York City, for appellant. C. M. Beattie, of New York City, for respondent. PER CURIAM. Judgment and order affirmed, with costs. Order filed. CLARKE and SCOTT, JJ., dissent. KOHN v. LEOPOLD POWELL & CO. (Supreme Court, Appellate Division, First Department. April 16, 1915.) Action by Charles M. Kohn against Leopold Powell & Co. No opinion. Application denied, with $10 costs. Order signed. KOPP, Appellant, v. ADLER MONUMENTAL & GRANITE WORKS, Respondent. (Supreme Court, Appellate Division, Second Department. April 1, 1915.) Action by John Kopp against the Adler Monumental & Granite Works. No opinion. Judgment and order unanimously affirmed, with costs. LA CHICOTTE, Appellant, v. KRACKE, Respondent (two cases). (Supreme Court, Ap pellate Division, First Department. March 26, 1915.) In the matter of Henry A. La Chicotte against Frederick J. H. Kracke, as commissioner. T. Farley, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. In re LEDER. (Supreme Court, Appellate Division, First Department. January 22, 1915.) In the matter of Benjamin Leder. No opinion. Referred to Hon. Roger A. Pryor, official referee. Settle order on notice. LEDERER, Appellant, v. FIELD & FANCY PUB. CO., Respondent. (Supreme Court, Appellate Division, Second Department. April 9, 1915.) Action by Alison M. Lederer against the Field & Fancy Publishing Company. PER CURIAM. Motion denied, upon condition that appellant print as an addendum that part of the judgment roll which was omitted from the printed papers on appeal, and be ready for argument on Thursday, April 15, 1915; otherwise, motion granted, with $10 of Philadelphia, 144 App. Div. 592, 129 N. Y. costs. Code Civ. Proc. § 1353; Muller v. City Supp. 1037. LEERBURGER v. WATSON. (Supreme Court, Appellate Division, First Department. April 16, 1915.) Action by Henry Leerburger against Henry R. C. Watson, executor, etc. PER CURIAM. Motion granted, and proceedings under the order stayed, upon plaintiff's giving a bond in the penalty of $18,000 for the payment of the amount to be paid by him according to the judgment for the specific performance of his contract within 10 days after the affirmance of the order, if the order appealed from is affirmed. See, also, 157 App. Div. 915, 142 N. Y. Supp. 1127. stein & Rosenfeld Company. In re LEFSTEIN & ROSENFELD CO. et al. (Supreme Court, Appellate Division, Second Department. April 16, 1915.) In the matLAMBERT, Appellant, v. LANEHART, Re-ter of supplementary proceedings as to the Lefspondent. (Supreme Court, Appellate Division, Second Department. March 19, 1915.) Action by Ismenia Lambert against Louis N. Lanehart. No opinion. Order affirmed by default, with $10 costs and disbursements. LANE, Appellant, v. JACOBS, Respondent. (Supreme Court, Appellate Division, Fourth Department. March 26, 1915.) Action by Charles M. Lane against Albert W. Jacobs. No opinion. Motion for reargument (152 N. Y. Supp. 605) denied, with $10 costs. ent. PER CURIAM. Order affirmed, without costs. The determination was within the discretion of the Justice. He might well be reluctant to convict of contempt on ex parte papers, and he might well remit the creditor to the remedy of procuring the attendance of the debtor by attachment. See Matter of Nejez. 54 Misc. Rep. 38, 104 N. Y. Supp. 505. BURR, J., not voting. LEIMAN, Appellant, v. KULLA et al., Re LA SALLE, Appellant, v. SMITH, Respond-spondents. (Supreme Court, Appellate Division, Second Department. March 19, 1915.) Action by Gladys Louise La Salle against William B. Smith. No opinion. Order affirmed, without costs, and without prejudice to a renewal of the motion at Special Term for a writ of inquiry upon proper papers. (Supreme Court, Appellate Division, First Department. March 26, 1915.) Aetion by Jennie Leiman against Jacob Kulis and another. J. Gans, of New York City, for appellant. R. Tally, of New York City, for respondents. No opinion. Judgment and order aflirmed, with costs. Order filed. See, also, 151 N. Y. Supp. 1126. LEONARD, Appellant, v. QUALE CO., Respondent. (Supreme Court, Appellate Division, First Department. March 26, 1915.) Action by William Leonard, an infant, against the Quale Company. B. L. Pettigrew, of New York City, for appellant. E. F. Lindsay, of New York City, for respondent. PER CURIAM. Judgment and order affirmed, with costs. Order filed. LAUGHLIN, J., dissents. LEVER, Appellant, v. GALLAGHER, Respondent. (Supreme Court, Appellate Division, First Department. March 19, 1915.) Action by John Lever against Peter C. Gallagher. F. L Mayham, of New York City, for appellant. W. J. Martin, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. LEVEY, Appellant, v. LEVEY, Respondent. (Supreme Court, Appellate Division, Second Department. March 19, 1915.) Action by Warrena D. Levey against Clarence D. Levey. No opinion. Motion denied, without prejudice to a renewal thereof in the event that the appeal is not speedily prosecuted. See, also, 88 Misc. Rep. 315, 150 N. Y. Supp. 610. LEVI, Respondent, v. HEISS et al., Appellants. (Supreme Court, Appellate Division, First Department. January 22, 1915.) Action by Harry Levi against Samuel W. Heiss and another. M. B. Blumenthal, of New York City, for appellants. L. S. Ehrich, Jr., of New York City, for respondent. No opinion. Judgment and order reversed, and new trial ordered, costs to appellant to abide event, on the ground that the verdict was against the weight of evidence. Settle order on notice. LEVIN v. WM. A. WHITE & SONS. (Supreme Court, Appellate Division, First Department. April 16, 1915.) Action by Morris Levin against Wm. A. White & Sons. No opinion. Motion to dismiss appeal granted, with $10 costs, unless appellant complies with terms stated in order. Order filed. given, motion for stay denied. Settle order on notice. See, also, 164 App. Div. 862, 149 N. Y. Supp. 1001. In re LINCOLN AVE. IN CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. April 16, 1915.) Appeal from Special Term, Kings County. In the matter of the application of the City of New York relative to acquiring title for opening a street. From an order setting aside an award to prop erty owners by commissioners of estimate and assessment, the City appeals. Order reversed, and motion to confirm the report of the commissioners granted. Brooklyn (Howard L. Campion, of New York Melville J. France, of City, on the brief), for appellant. Ferdinand Pecora, of New York City, for respondents. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion to confirm the report of the commissioners of estimate and assessment granted. We think that the the correct theory by the commissioners as to evidence clearly establishes the adoption of consequential damages, and, if the amount awarded by them is open to criticism at all, it is that it is liberal rather than otherwise. PUTNAM, J. (dissenting). The proposed opening of Lincoln avenue cuts through a large tract lying on Jamaica avenue, nearly opposite Cypress Hills Cemetery. It is used for manufacture of monuments. The value of the strip of intersecting land taken is not disputed. The issue is: How much is the resulting damage into two isolated parts, one of which is thereby to the plant, which this 50-foot street divides The obvious losses are cut off from power? not only that power is cut off, but in the means to carry back and forth the rough and worked blocks of granite in process of finishing, which now move along a diagonal tramway, used 15 or 20 times a day. The present power is by steam at the western end of the premises. It works a compressed air plant; also electric generators. An underground conduit takes the compressed air, beneath where the street now is to go, to the eastern yard. An overhead wire conducts the electric current across to operate an electric traveling crane. A tramway runs between the two yards to carry heavy blocks. The stone material first goes into the eastern yard, to the cutting plant. Swings it on the platform car on the tramway, where it comes across to the westerly plant. Two electric derricks then deposit the blocks at Afterwards it goes the polishing machines. back to the eastern yard on storage, and for exhibition. In this way the plant is so unified that one boiler and engine supply all the power at a daily cost of $8. Such a plant cannot be (Su-operated as a unit after it has been sundered by a public street. The damage estimates, therefore, primarily are for the changes so as to give the easterly yard the needed power to be run independently; also to arrange a mode of interchange of material which can no longer be effected by this tramway. Mr. Adamson estimated the entire plant at $75,000 in its present condition. Other witnesses made it more. In order to give power to the eastern yard, he figured on a new engine house there, with boil LEVITT, Respondent, v. J. M. HORTON ICE CREAM CO., Appellant. (Supreme Court, Appellate Division, First Department. May 7, 1915.) Action by Moris Levitt against the J. M. Horton Ice Cream Company. W. L. Glenney, of New York City, for appellant. M. Trowbridge, of New York City, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. LEVY v. LOUVRE REALTY CO. preme Court, Appellate Division, First Department. April 16, 1915.) Action by Leopold Levy against the Louvre Realty Company. PER CURIAM. Proceedings stayed, pending decision of the Court of Appeals, on condition that appellant give a bond in the penalty of $750, conditioned upon appellants' paying additional interest, costs, or damages to accrue by reason of the appeal. If, within 10 days after date of entry of this order, such bond is not The crane then er, engine, generator, compressor, and shafting connections, which items he detailed to make up $9,050. IIe proposed a truck, horses, and harness as a substitute for the tramway, by which to transfer the material, which he estimated at $2,550, making a total outlay, as a substitute for the present power, distribution, and track, of $11,600. Asked as to the damaged value of the plant, he subtracted this last figure from $75,000 and gave the remainder, $63,400, as his answer. But obviously this leaves a plant separated into two units, with duplicate cost of engineers, fuel, and other outlays, and (leaving out any increased cost of superintendence) would add to the yearly overhead charges over $3,000. When Adamson was recalled, he was asked to make this clear, namely, that $63,400 only represented the outlay to supply power in the part cut off, and for transferring the blocks. He attempted to capitalize the increased cost of operation, which perhaps he erroneously computed. The city's position, therefore, comes to this: The street as opened cuts off part of a united plant. To go on, two power plants must take the place of one. The award of $10,000 about represents the cost of the necessary structural changes. But two separate installations are obviously a wasteful duplication, compared with a plant that is intact. Hence an award of $10,000 either did not reckon these structural changes, or did not allow for the waste and loss of efficiency which the changes necessarily involved. Where an intervening street excludes an owner from the beneficial use of part of a manufacturing plant, he is entitled to the full resulting diminution of value, not only for the cost of installing new power, but to the extent that these changes have left the property damaged and impaired as compared with its condition before taking. Otherwise, the damages assessed are inadequate. Matter of Alexander Street, 145 App. Div. 495, 129 N. Y. Supp. 944. The discrepancy also in the assessments for benefits by which these respondents' lots are valued above those in the same block, and especially as compared with lots to the south of Wood street (the next street southerly and parallel with Jamaica avenue), seem to me to forbid confirmation. Hence I vote to affirm the order setting aside the report of the commissioners. tion by Lester Doctor against Edward A. Manico and another. M. G. Holstein, of New York City, for appellant. J. H. Iselin, of New York City, for respondents. No opinion. Judgment afirmed, with costs. Order filed. LOOMIS et al., Respondents, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department March 10, 1915.) Action by Leslie G. Loomis and another against the New York Central & Hudson River Railroad Company. No opinion. Motion granted, and order of reversal (153) App. Div. 938, 138 N. Y. Supp. 1126) entered November 20, 1912, amended, so as to state that the reversal was made upon questions of law only, and that the facts had been examined and no error found therein. See, also, 155 App. Div. 879, 139 N. Y. Supp. 1131.. LO RE v. FEDERMAN. (Supreme Court, Appellate Division, Second Department. March 12, 1915.) Action by Vincent Lo Re against Philip Federman and Carl Rieger. No opinion. Motion granted, without costs. See, also, 151 N. Y. Supp. 1127. LORENZ, Respondent, v. LORENZ, Appellant. (Supreme Court, Appellate Division, First Department. April 30, 1915.) Action by Ada C. Lorenz against Samuel Lorenz. H. Fluegelman, of New York City, for appellant A. 1. Nova, of Brooklyn, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. In re LOW et al., Board of Rapid Transit R. Com'rs. (Supreme Court, Appellate Division, Second Department. April 23, 1915.) In the matter of the application and petition of Seth Low and others, constituting the Board of Rapid Transit Railroad Commissioners, etc., for the appointment of commissioners of appraisal, etc. No opinion. Motion to require acceptance of the notice of appeal dated April 8, 1915, on behalf of the Public Service Commission, granted without costs. pellate Division, Second Department. April 16, 1915.) Action by William Luhman against the New York, Westchester & Boston Railway Company. No opinion. Judgment affirmed, with costs, upon authority of Luhman v. New York, Westchester & Boston Railroad Co., 163 App. Div. 964, 148 N. Y. Supp. 1127. LUKANIK v. BATOVIC. (No. 7284.) (Supreme Court, Appellate Division. First Department. April 30, 1915.) Appeal from Special Term, New York County. Action by Mike Lukanik against Mike Batovic. From an order granting a motion to open default and to answer, the plaintiff appeals. Order modified, so as to require an undertaking for the payment of any judgment rendered against defendant. Abram S. Jaffer, of New York City, for appellant. PER CURIAM. The order appealed from is modified, by adding to the conditions to the opening of the default that the defendant file an undertaking within 10 days after the service of the order to be entered hereon for the payment of any judgment that the plaintiff may ultimately recover against him. If such undertaking be not given within the time fixed, the order appealed from will be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. LYNCH, Respondent, v. CENTRAL BREWING CO., Appellant. (Supreme Court, Appellate Division, First Department. April 30, 1915.) Action by William Lynch, an infant, etc., against the Central Brewing Company. W. A. Jones, Jr., of New York City, for appellant. G. F. Hickey, of New York City, for respondent. No opinion. Judgment and order aflirmed, with costs. Order filed. MCCARTHY, Appellant, v. CITY OF FUL TON, Respondent. (Supreme Court, Appellate Division, Fourth Department. March 10, 1915.) Action by Josephine G. McCarthy against the City of Fulton. No opinion. der affirmed, with costs. Or McCHESNEY v. LUCIUS ENGINEERING CO. (Supreme Court, Appellate Division, Fourth Department. March 17, 1915.) Action by John McChesney against the Lucius Engineering Company. MCKENZIE, Appellant, v. WOOD, Respondant. (Supreme Court, Appellate Division, First Department. March 12, 1915.) Action by Peter A. McKenzie against Frederick R. Wood. C. E. Mundy, of New York City, for appellant. C. C. Marsh, of New York City, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. MacKINSTRY, Respondent, v. NEW YORK CENT. R. CO., Appellant. (Supreme Court, Appellate Division, Third Department. May 5, 1915.) Action by Everett MacKinstry against the New York Central Railroad Company, successor to the New York Central & Hudson River Railroad Company. PER CURIAM. Judgment and order reversed, and new trial granted, with costs to appellant to abide event, on the ground that the damages are excessive, unless the plaintiff stipulates to reduce the verdict to $2,500; in case modified, and, as modified, judgment and order such stipulation is filed, the judgment is so affirmed, without costs. HOWARD, J., votes for affirmance. MCKNIGHT, Appellant, v. McKNIGHT, Respondent. (Supreme Court, Appellate Division, First Department. March 19, 1915.) Action by Chauncey P. McKnight against Louise S. McKnight. R. L. Turk, of New York City, for appellant. P. Rooney, of New York City, for respondent. No opinion. Order modified, by reducing alimony to $7 per week, and, as modiPER CURIAM. Plaintiff's exceptions sus-fied, affirmed, without costs. Order filed. See, tained, and motion for new trial granted, with also, 151 N. Y. Supp. 1128. costs to plaintiff to abide event. Held, that it was a question of fact as to whether the defendant was negligent in furnishing a scaffold which was unsuitable and improper for the work which the plaintiff was required to do. ROBSON and FOOTE, JJ., dissent. MCINERNEY REALTY CO., Appellant, v. LANGSLOW, Respondent. (Supreme Court, Appellate Division, Fourth Department. March 26, 1915.) Action by the McInerney Realty Company against Harry Richard Langslow. No opinion. Judgment affirmed, with costs. MCLAUGHLIN v. NEW YORK RYS. CO. (Supreme Court, Appellate Division, First Department. March 19, 1915.) Action by James J. McLaughlin against the New York Railways Company. No opinion. Motion denied, with $10 costs. Order filed. See, also, 151 N. Y. Supp. 1128. MCLEAN, Appellant, V. BRONX PARKWAY COMMISSION, Respondent. (Supreme Court, Appellate Division, First Department. April 1, 1915.) In the matter of Charles F. McLean against the Bronx Parkway Commission. E. S. Clinch, of New York City, for appellant. T. F. Stevens, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. MCLEAN, Respondent, v. STUDEBAKER BROS. CO. OF NEW YORK, Appellant. (No. 7056.) (Supreme Court, Appellate Division, First Department. April 23, 1915.) Appeal from Trial Term, New York County. Action by William McLean against the Studebaker Bros. Company of New York. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Affirmed. Clayton J. Heermance, of New York City, for appellant. William F. Purdy, of New York City, for respondent. PER CURIAM. Judzment and order affirmed, with costs. Order filed. INGRAHAM, P. J. (dissenting). The plaintiff was not in the employ of the defendant, but in the employ of one who was working for the defendant under an independent contract. In the course of this work he fell off a ladder not furnished by the defendant. The defendant gave no directions as to how the work should be done, and, so far as appears, had no knowledge that the plaintiff was about to work at this particular fan light or window at the time of the accident. Unless it was the duty of the defendant to keep this fan light bolted at all times, I do not see how it would be negligence to have it unbolted at the time the plaintiff selected for cleaning it. I think there is not the slightest proof that the defendant was negligent, or that the accident resulted from any lack of care of the defendant or its employés. I think, therefore, the judgment should be reversed, and the complaint dismissed. HOTCHKISS, J., concurs. MCNAMEE v. CHENOWETH et al. (two cases.) (Supreme Court, Appellate Division, First Department. April 30, 1915.) Action by Mary J. McNamee as executrix, etc., against Catherine R. Chenoweth and others. ion. No opin Motion to dismiss appeal granted, with $10 costs, unless appellants comply with terms stated in order. Orders filed. MCNEILLY, Respondent, v. CHAMPLIN, Appellant. (Supreme Court, Appellate Division, Second Department. April 16, 1915.) Action by William T. McNeilly against Jane Q. Champlin. No opinion. Order of the County Court of Westchester County reversed, with $10 costs and disbursements, and the motion to strike out and disallow the item of $15 granted, with $10 costs, upon the ground that the amended answer rendered nugatory the notice of trial. In re MAHAR. (Supreme Court, Appellate Division, Second Department. March 26, 1915.) In the matter of the accounting by Franklin W. Mahar, substituted trustee, etc., of Susannah A. Dickie, deceased. PER CURIAM. Assuming the regularity cf the order appealed from, we think the circum stances shown in the moving papers did t justify the relief granted to respondent. Th trustee is under a large bond, and the duties of the trust terminate necessarily on July 5, 1927 Proceedings to settle his account as trase should not be multiplied at the expense of the estate. The order is therefore reversed $10 costs and disbursements, and respondents motion is denied, without prejudice to any ceedings that may be instituted either by te trustee or by any of the beneficiaries on e termination of the trust on July 5, 1915. |