the authority of Congress, established the same bulkhead line that had been established by the city under authority of the state in 1871. [4] The Hudson river is, of course, a navigable stream, and the power of Congress over such waters is an incident to its power to regulate commerce, and is paramount when exercised, to the power of the state. So long as Congress does not see fit to exercise this paramount power, the states have jurisdiction over navigable waters within their own confines; but there always remains the reserved power of the federal government to step in and supersede the state authority, and this it may do even with respect to navigable waters lying wholly within the state limits. Rhea v. Newport News & M. Valley R. R. Co. (C. C.) 50 Fed. 16. Hence it follows that the control and development of all navigable streams remains within the ultimate jurisdiction of the federal government, and that all persons who acquire, by grant from the state, title to lands under water within the limits of a navigable stream, do so subject to the exercise of the federal government of its power to determine how far such streams may be encroached upon. Garrison, Secretary of War, v. Greenleaf Johnson Lumber Co., 215 Fed. 576, 131 C. C. A. 644. See, also, Scranton v. Wheeler, 179 U. S. 141, 21 Sup. Ct. 48, 45 L. Ed. 126. It seems to us therefore to be clear beyond reasonable dispute that the owners of the land under water involved in this action lost in 1871, and certainly in 1890, whatever prospective right they may theretofore have had to fill in and reclaim outside of the bulkhead line then established. They never had the right, but only a duty, if called upon, to build the piers at the foot of and in extension of the intersecting streets. If these views are sound, there is no ground for the injunction sought by plaintiffs. The grants under which they claim, as already pointed out, were made with a view to filling in and reclaiming from the Hudson river the area granted. The right to so fill in having been taken away by subsequent acts of the state and the United States, the waters covering the granted lands have been preserved for the uses of commerce and navigation precisely as if no grant had been made. Plaintiffs retain the naked fee to the soil under water, but without the right to impede or prevent the use of the water for the purposes for which they have been so preserved. Plaintiffs could not fill in to the line of Thirteenth avenue, or throw booms across the spaces between the piers, and thus prevent the use of the waters by the public for commercial purposes. Nor can they achieve the same purpose by injunction. The order appealed from must be affirmed, as a matter of right, and not in the exercise of discretion, with $10 costs and disbursements. All concur. HULL v. FIFTY-SECOND ST. STORAGE HOUSE, Inc., et al. (Supreme Court, Appellate Division, Second Department. March 26, 1915.) 1. BANKRUPTCY 296-ACTION BY TRUSTEE IN BANKRUPTCY-APPOINTMENT OF RECEIVER. Where, in a suit by a trustee in bankruptcy to set aside conveyances by the bankrupt, the court appointed a receiver until the entry of judgment, and rendered judgment for the trustee, directing all persons in possession of the premises of the bankrupt to surrender and deliver the same to the trustee, the trustee should demand a surrender of the property by presenting a certified copy of the judgment and giving a receipt, but could not appropriate money without first communicating with the receiver, and the money so appropriated must be returned to the receiver, who must settle his accounts and comply with the judgment. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. § 414; Dec. Dig. 296.] 2. BANKRUPTCY 296-SUIT TO SET ASIDE CONVEYANCES BY BANKRUPT COURTS JURISDICTION. Under the Bankruptcy Act (Act July 1, 1898, c. 541, 30 Stat. 544), as amended in 1903 (Act Feb. 5, 1903, c. 487, 32 Stat. 797) and 1910 (Act June 25, 1910, c. 412, 36 Stat. 838) the state and federal courts have concurrent jurisdiction of a suit by a trustee in bankruptcy to set aside a conveyance by the bankrupt. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. § 414; Dec. Dig. 296.] Appeal from Special Term, Kings County. Action by Lawrence Hull, as trustee in bankruptcy of Clarence E. Hopkins, a bankrupt, against the Fifty-Second Street Storage House, Incorporated, and others. From an order directing the return by the trustee of money to the receiver, and declaring him still to be in possession of the property, with right to counsel fee, plaintiff appeals. Affirmed in part, and reversed in part. See, also, 151 N. Y. Supp. 1122. Argued before JENKS, P. J., and BURR, CARR, STAPLETON, and PUTNAM, JJ. Winifred Sullivan, of New York City, for appellant. Arnon L. Squiers, of New York City (Edward P. Lyon, of New York City, on the brief), for respondents. PUTNAM, J. Plaintiff is the trustee in bankruptcy of Clarence E. Hopkins, who was adjudged bankrupt in the District Court of the United States for the Eastern District of New York. The bankrupt property consisted principally of this warehouse, with the storage business there carried on. It was subject to a first mortgage of $15,000 to the Williamsburg Savings Bank, and had been further incumbered by conveyances and assignments executed by the bankrupt before his failure. Plaintiff, as such trustee, came into this court, suing in equity to set aside these conveyances made by the bankrupt. He applied for appointment of a receiver pendente lite. This court at Special Term, on December 2, 1914, appointed a receiver "during the pendency of this action and until the entry of judg For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes ment herein," giving him power to continue the business, and to collect all accounts and moneys due or to become due in connection with this storage warehouse business. On December 4th the receiver qualified and took possession. The suit came on for trial in January, and resulted in a judgment in favor of plaintiff, in which the court set aside the transfers attacked, adjudging also that this warehouse building, with all the personal property used in connection with it and all accounts receivable, were the property of the bankrupt on the date of the trustee's appointment; also that plaintiff, as such trustee, is vested with the title and right of possession of the property; that the FiftySecond Street Storage House, Incorporated, its officers, agents, and servants, "and all persons in possession of said premises or business or property, or any surplus income or profits of said business since July 25, 1914, surrender and deliver the same to the plaintiff, as trustee in bankruptcy of said Clarence E. Hopkins." This judgment of January 16, 1915, has not been appealed from. On January 18th plaintiff's attorney visited the warehouse, and informed Mr. Mead, who had continued to act as manager under the receiver, that plaintiff had taken possession. A copy of the judgment was served with notice of such taking possession. On the 19th plaintiff's attorney took from Mr. Mead, apparently without notice or demand on the receiver, the cash on hand, $274.17, receipting therefor to Mr. Mead. On the same day the federal court made an order authorizing the plaintiff to continue the business under the defendant's trade name. On January 23d the receiver appears to have demanded from plaintiff's attorney the return of the cash so taken. [1] A regrettable conflict has ensued between the two courts, each maintaining a present possession of this property of the bankrupt. In view, however, of the limits on the receiver's appointment, which was only pendente lite and until the entry of judgment, followed by the provision of such judgment directing all persons in possession of said premises to surrender and deliver the same to the plaintiff, the respective rights and duties were plain. Where a receiver has personal property, and a decree is made authorizing a party to have it, the Supreme Court of the United States has declared the orderly procedure. A demand should be made with a certified copy of the decree requiring the receiver to surrender the property upon giving a receipt to be filed, so as to show exact performance of the decree. Very v. Watkins, 23 How. 469, 16 L. Ed. 522. Here this money was appropriated under the general terms of the judgment, without first communicating with the receiver. This was irregular, and the Special Term rightly directed its return, which has since been done. [2] But the bankruptcy statutes are the law for the state courts, and not alone for the federal courts, in so far as relates to the recovery of the property from adverse claimants. Indeed, under the original act of 1898 the trustee could bring such a suit as this only in the state courts, unless by defendant's consent. Now, by amendments of 1903 and 1910, the jurisdiction is concurrent. The state courts are called on to carry out the spirit of the beneficial purpose of the bankruptcy statutes. Yet the professional zeal of attorneys, with the unconscious straining by courts to hold their jurisdiction in close cases, have often let them forget the due observance of comity between courts of concurrent powers. Under the bankruptcy statute of 1867 (Act March 2, 1867, c. 176, 14 Stat. 517), though less by the present act, the separate state and federal systems have been often made the occasion of burdensome charges, duplicate fees, and wasteful delays. It is a reproach. that courts should let the machinery devised to make a prompt and fair division of the wrecked estate work so badly and often fail of its purpose. The present situation is plain. The receiver should obey the judgment. After plaintiff had taken possession of the warehouse property under the judgment, the receiver was not thereafter to resist the adjudged rights of the trustee in bankruptcy, since the receiver's custody and control had been ended by the judgment. The outlays and liabilities disclosed by the affidavits did not entitle the receiver to demand to retake the real estate and property from the plaintiff. His duty was to turn over possession, file his accounts, and not obstruct the administration of the bankrupt's estate, or, if he had substantial ground to take a precautionary attitude by reason of liabilities incurred in his trust, then he should have applied to modify the judgment. Had he expended a large sum, or involved himself in future liabilities, which the affidavits show is not the case here, this court might stand on its right to secure its officer beyond the cash in his hands before directing delivery of possession. Order affirmed, so far as it requires the return of moneys taken from the receiver's custody, and directs the settlement in the Supreme Court of the receiver's accounts; otherwise, reversed, and the receiver's motion to continue his possession of the other property theretofore held by him as receiver denied, without costs. All concur. (89 Misc. Rep. 461) KUGELMAN et al. v. KATZ et al. (Supreme Court, Appellate Term, First Department. March 23, 1915.) 1. JUDGMENT 138-REFUSAL OF ATTORNEY TO TRY CASE-DEFAULT-OPENING GROUNDS. Where an attorney refuses to proceed before a judge having the right to hear a case, he has had his day in court, and cannot thereafter claim another opportunity to present his case. [Ed. Note. Dec. Dig. For other cases, see Judgment, Cent. Dig. §§ 249-251, 254; 138.] 2. ATTORNEY AND CLIENT 92-AUTHORITY OF ATTORNEY-REFUSAL TO TRY CASE. While a client is represented by his attorney, the refusal of such attorney to try a case before a judge having the right to hear it is as binding upon the client as any other act of the attorney at the trial. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 171173; Dec. Dig. ~92.] 3. JUDGMENT FECT. 143-DEFAULT-REFUSAL OF ATTORNEY TO TRY CASE-EF Where the examination of a witness gave rise to a heated discussion between the court and defendant's counsel, and to avoid any prejudice For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes to the defendant from his remarks the court declared a mistrial and impaneled another jury, and where the attorney stated that his encounter with the court had left him in no condition to do justice to his client's case, and, upon refusal of a continuance, asked if he might withdraw from the case, when the judge replied that trial or an inquest would be had, and the attorney stated that he withdrew, and left the room, judgment being entered for the plaintiffs, since the attorney's act in withdrawing terminated the relation of attorney and client between them for the purpose of the trial, and since this occurred before trial, the client was in default only by reason of his representative's refusal to proceed, was deprived of his day in court, and such defendant's motion to set aside the judgment by default should have been granted, if the offending attorney was actually out of the case. [Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 269, 270, 272– 291; Dec. Dig. 143.] Appeal from City Court of New York, Special Term. Action by Julius G. Kugelman and Charles Frankland against Harry Katz and Joseph Katz. From an order denying defendants' motion to open their default and set aside judgment entered for plaintiffs upon an inquest, defendants appeal. Reversed, on conditions. Argued March term, 1915, before LEHMAN, HENDRICK, and COHALAN, JJ. Samuel S. Breslin, of New York City, for appellants. LEHMAN, J. [1, 2] It appears that on January 14th this case was marked ready for trial in part III of the court and was sent from there to a vacant part for trial. The trial then proceeded, and one of the defendants was examined on behalf of the plaintiffs. During the examination a somewhat heated discussion occurred between the court and defendants' counsel. As a result of that discussion, and apparently in order to avoid any possible prejudice to the defendants from the remarks of the court to the defendants' counsel, the court very properly declared a mistrial. Thereafter the defendants' counsel asked to have the case sent back to the calendar in part III, but the judge ordered the trial to proceed before him. In order, however, to safeguard the defendants' rights completely, the trial justice sent to other parts of the court for an entirely new jury. Defendants' counsel then stated: "Before I examine the jury, I have a preliminary motion to make. I am frank to say that what transpired in court has practically taken all the strength out of me. I believe I can't do justice to my clients. I can't do justice to my clients in trying the case. My clients will be punished on my account, and I feel I can't go on trial before your honor at this time." The The trial justice overruled this objection, and the attorney then asked: "May I withdraw from the case at this time?" The trial justice responded that a trial or an inquest would be had. Thereupon the attorney stated, "I respectfully withdraw," and left the room. court stated to plaintiffs' counsel, "You may take an inquest," and, after he had presented his evidence, directed a judgment in plaintiffs' favor. The defendants then moved to open their default, and now appeal from the denial of their motion. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |