* * to or held for, by, or on account of, or on behalf of, or for the benefit of an enemy or ally of enemy not holding a license granted by the President hereunder, which the President after investigation shall determine is so owing or so belongs or is so held, shall be conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or the same may be seized by the Alien Property Custodian; and all property thus acquired shall be held, administered and disposed of as elsewhere provided in this act. The sole relief and remedy of any person having any claim to any money or other property heretofore or hereafter conveyed, transferred, assigned, delivered, or paid over to the Alien Property Custodian, or required so to be, or seized by him shall be that provided by the terms of this act, and in the event of sale or other disposition of such property by the Alien Property Custodian, shall be limited to and enforced against the net proceeds received therefrom and held by the Alien Property Custodian or by the Treasurer of the United States." U. S. Comp. Stat. Ann. Supp. 1919, § 31151⁄2d. Section 9 of the Trading with the Enemy Act (U. S. Comp. St. 1918, § 311512e) prescribes the procedure and regulations under which claims may be made against the Alien Property Custodian. This section also provides that if the claimant shall have fulfilled certain requirements "said claimant may, at any time before the expiration of six months after the end of the war, institute a suit in equity in the District Court of the United States for the district in which said claimant resides, or, if a corporation, where it has its principal place of business (to which suit the Alien Property Custodian or the Treasurer of the United States, as the case may be, shall be made a party defendant), to establish the interest, right, title, or debt so claimed, and if suit shall be so instituted then the money or other property of the enemy, or ally of enemy, against whom such interest, right, or title is asserted, or debt claimed, shall be retained in the custody of the Alien Property Custodian," etc. In support of its defenses the attorneys for the defendant cite the following cases decided in the federal courts: Spiegelberg v. Garvan (D. C.) 260 Fed. 302; Salamandra Ins. Co. v. N. Y. Life Ins. & Trust Co. (D. C.) 254 Fed. 852; Fischer v. Palmer (D. C.) 259 Fed. 355and two cases decided by the courts of New York state, Biesantz v. Supreme Council, Royal Arcanum, 106 Misc. Rep. 545, 175 N. Y. Supp. 46; Wageck v. Travelers' Ins. Co., 108 Misc. Rep. 65, 177 N. Y. Supp. 327. None of those cases, however, presented the point here raised for decision. In all of them there was a controversy over specific property that had either been delivered to the Alien Property Custodian or that had been seized or claimed by him. The language of the statute is that "the sole relief and remedy of any person having any claim to any money or other property delivered, or paid over to the Alien Property Custodian," etc., and each of the cases above cited came within that provision. * * * The present action, however, is not brought to recover any money or property in the possession of the Alien Property Custodian or any other specific money or property whatsoever. It is brought merely to determine the obligation of an alien enemy. If the plaintiff succeeds. in obtaining a judgment, it may some time in the future seek to reach property in the possession of the Alien Property Custodian; but, if it ever does so, then its proceedings will be governed by the statute. It (184 N.Y.S.) may, however, make no move to enforce its judgment until peace has been declared, and the remainder, if any, of the property now in the possession of the Alien Property Custodian has been turned back to the defendant, thus becoming subject to the ordinary processes of execution. Or again, the plaintiff may seek to satisfy its judgment in some other jurisdiction than the United States, and out of property of the defendant in some other jurisdiction. The policy of the statute in question, as I understand it, is to impound under control of the government of the United States the property of alien enemies, in order that such property may not be used in the interests of an enemy government or against the interests of our own government. I cannot discover that the purpose of this statute will be defeated or obstructed, or even touched, by permitting such an action as this to be prosecuted to judgment in the courts of this state, and I cannot find in the letter of the statute any prohibition against such a prosecution. There is nothing in the statute to indicate, and no reason to suppose, that our government intended that this act should handicap its own citizens. It may be presumed that the governmental intention was to the contrary. The construction which the defendant seeks to have placed upon the statute would, however, work an injury to our own citizens by depriving them of a jurisdiction which would, in normal conditions and in times of peace, be open to them and which, for some good reason or other, they might prefer to resort to, just as the plaintiff in this case prefers to resort to the jurisdiction of the courts of this state. I am therefore of the opinion that both defenses are insufficient, and that it is unnecessary to make the Alien Property Custodian a defendant, and that this court has jurisdiction of the action. The demurrer should therefore be sustained, with costs, with leave to the defendant to amend within 20 days after service of a copy of the interlocutory judgment to be entered hereon, with notice of entry thereof and upon payment of such costs. Ordered accordingly. D (113 Misc. Rep. 135) In re OAKLEY'S WILL, (Surrogate's Court, Westchester County. September 20. 1920.) Discovery 38-Examination before trial of proponent of will refused to contestants. Examination before trial of proponent of a will, after issue joined, refused, when the purpose of examination is to develop the truth, on the matters of the instrument not being the last will, and it not being executed as required by law, as they may be proved or disproved by the witnesses to the will; on the matter of decedent's being of unsound mind, which may be proved by witnesses other than proponent; and on the matter of the execution being obtained by undue influence, as any information thereon can just as well be obtained on the trial, to be heard in a few days. In the matter of the contested probate of the will of William H. Oakley, deceased. Order for examination of proponent before trial refused. Newmark & Miller, of New York City, for contestants. SLATER, S. The contestants seek an ex parte order for the examination before trial of the petitioner in the proceeding to probate the will of decedent, under sections 872 and 873 of the Code of Civil Procedure. The issues were joined by order dated September 7, 1920, and the matter is on the October calendar for trial by jury. Under the express provision of section 873, C. C. P., the surrogate is empowered to grant such an order in the exercise of his discretion. People ex rel. Lewis v. Fowler, 229 N. Y. 84, 127 N. E. 793. The proposed order as submitted requires the examination of the proponent upon the following matters: (1) That the said instrument is not the last will and testament of the decedent. (2) That said will was not executed as required by law. (3) That decedent was of unsound mind. (4) That the execution of the will was obtained by undue influence. There are certain differences between an examination of an adverse party after issues are joined, to obtain evidence for use at the trial, and an examination in order to frame a complaint. The true purpose of examination after issues are joined is to develop the truth. The first and second issue herein may be proven or disproven by the witnesses to the will. The third issue may be proven or disproven by witnesses other than the proponent. Therefore the examination after issues are joined and before trial can only avail as to the issue of undue influence. On the trial every opportunity is afforded to elicit all the facts in an orderly way, and to develop the truth. I am of the opinion that any information that may be obtained before trial after joinder of issues can just as well be obtained from the witness upon the trial of the proceeding before me and a jury, at the October term, to be heard within a few days. The petitioner is a party to the proceedings and before the court, and can be made to personally attend the trial. Decreed accordingly. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (113 Misc. Rep. 112) (184 N.Y.S.) KILTS v. STATE. October 4, 1920.) (Court of Claims of New York. Waters and water courses 118-No liability for obstruction of drain which backs up surface waters. No liability arises from the obstruction of a ditch carrying surface waters by a lower proprietor, though the result is to dam the water back upon the upper owner. Claim by Herman V. Kilts against the State of New York. Claim dismissed. A. T. Wilkinson, of Utica, for claimant. John H. Clogston, Deputy Atty. Gen., for the State. CUNNINGHAM, J. In the year 1916, and for several years previously, the claimant owned and cultivated a farm in the town of Verona, Oneida county. This farm is bounded on the north by property known as the Casterton farm. The state of New York appropriated a part of the Casterton farm, and constructed a portion of the Barge Canal across it in an easterly and westerly direction, at a point immediately south of the stream known as Wood creek. For many years before the construction of the Barge Canal a part of the claimant's farm was drained by means of an artificial drainage ditch extending across that part of his premises in a northerly direction to and across the Casterton farm, emptying into a natural stream at the location of the Barge Canal, or somewhat northerly of it. This stream formed a junction with Wood creek. The canal cut off the drainage ditch at the point where it emptied into the stream. In order to carry away the water flowing into the drainage ditch, the state excavated another ditch on its own property, leading from the drainage ditch first mentioned in an easterly direction and into the Barge Canal. Prior to the year 1916, the ditch so constructed by the state became partially filled up by vegetation and débris, so that it did not discharge or drain the water freely. In the summer of 1916, because of these obstructions in the state's ditch, the flow of water in the drainage ditch on the claimant's land was impeded, and it backed up, and inundated and saturated a part of the claimant's land, rendering it unfit for cultivation, and destroying the crops growing on it. We find from the evidence that the waters in the ditches were not those of any natural stream or streams, but were exclusively surface waters. Such being the case, it is clear that there can be no recovery by the claimant because of the interruption or interception of the first described ditch by the Barge Canal construction, or by the subsequent omission or failure on the part of the state to keep the ditch on its lands open and unimpeded. It is well settled that no liability arises. from the obstruction of surface waters and their flow by a lower proprietor, although the result is to dam the water back upon the land of an adjoining or upper owner. 40 Cyc. p. 642; Howard v. City of Buffalo, 211 N. Y. 241, 258, 105 N. E. 426; Erwin v. Erie R. R. Co., For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 98 App. Div. 402, 90 N. Y. Supp. 315, affirmed 186 N. Y. 550, 79 N. E. 1104; Barkley v. Wilcox, 86 N. Y. 140, 40 Am. Rep. 519; Gould v. Booth, 66 N. Y. 62. This court has applied this general rule or principle of law to the specific case of surface waters flowing or carried through a drainage ditch, and has asserted the principle of nonliability for interference therewith, in a recent case in which no opinion was written in this court, nor in the Appellate Division; the case being Byrnes v. State, affirmed in 189 App. Div. 923, 180 N. Y. Supp. 932. A motion by claimant for leave to appeal was denied by the Court of Appeals. This claim, therefore, should be dismissed. ACKERSON, P. J., and WEBB, J., concur. (113 Misc. Rep. 114) 1. States LAVENIA v. STATE. (Court of Claims, of New York. September 30, 1920.) 112-Not liable for negligence unless immunity is waived. The state is immune from prosecution in its courts and from liability for negligence, except where immunity is specifically waived. 2. States 184-Evidence on claim for injury in sham battle held not to show it was caused by state militia. Evidence on claim against the state, under Laws 1920, c. 814, for injury of spectator in a sham battle, the state having assumed liability only if it be found that the injury was caused by negligence of state militia, held not to show by necessary fair preponderance that injury was caused by militia, rather than by machine gun in tank furnished by federal government. 3. Evidence 587-Necessary showing for proof by circumstances stated. To prove facts by circumstances, there must be positive proof of the facts from which the inference is drawn, and the circumstances must fairly and reasonably lead to the conclusion sought and exclude any other. Claim by Matteo Lavenia against the State. Claim dismissed. Louis Silberman, of Albany, for claimant. Glenn A. Frank, Deputy Atty. Gen., for the State. MORSCHAUSER, J. The claimant filed a claim against the state, alleging that he sustained injuries and was damaged in the sum of $7,000. The claim was filed pursuant to chapter 814 of the Laws of 1920, which reads as follows: "An act to confer jurisdiction on the Court of Claims to hear, audit and determine the claims of Frank Di Marco, an infant, Frances Di Marco, an infant, and Matteo Lavenia, all of Albany, New York, against the state of New York for personal injuries alleged to have been sustained by them at the hands of a member of the National Guard of the state of New York, in or in the immediate vicinity of Lincoln Park, near Swan street, in the city of Albany and state of New York, and to render judgment therefor. "The people of the state of New York, represented in Senate and Assembly, do enact as follows: For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |