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151 NEW YORK SUPPLEMENT

of the ground on which it stands.-Green v.
Horn, 151 N. Y. S. 215.

(F) Hostile Character of Possession,

§ 58 (N.Y.Sup.) Mere possession for 20 years not hostile in character, will not ripen into title. -Meighan v. Rohe, 151 N. Y. S. 785.

§ 60 (N.Y.Sup.) Possession for a long term of years, which originally was not adverse, held not to have ripened into adverse title.-Meighan v. Rohe, 151 N. Y. S. 785.

III. PLEADING, EVIDENCE, TRIAL,
AND REVIEW.

$114 (N.Y.Sup.) In proceedings to acquire land for public use, evidence held to require a finding that claimant company had acquired title to the land by adverse possession.-In re Willard Parker Hospital, 151 N. Y. S. 641.

$114 (N.Y.Sup.) Evidence held sufficient to support a finding that defendant had title to premises by adverse possession.—French Wray, 151 N. Y. S. 1015.

V.

§ 115 (N.Y.Sup.) Whether a building on a lot was so situated that it was an occupation of the whole lot was a question for the jury.-Green v. Horn, 151 N. Y. S. 215.

AFFIDAVITS.

APPEAL.

1154

See Costs, § 250; Courts, § 190; Criminal Law, §§ 1004-1186; Divorce, § 184; Eminent Domain, §§ 253, 254; Execution, § 418; Homicide, $$ 325, 340; Justices of the Peace, §§ 185, 190.

I. NATURE AND FORM OF REMEDY.

§ (N.Y.) The state can restrict the right of appeal in an action, though a party is insisting upon a federal right which the state cannot deny. Tyndall v. New York Cent. & H. R. R. Co., 107 N. E. 577.

III. DECISIONS REVIEWABLE.

(D) Finality of Determination. § 84 (N.Y.) An order of the Appellate Dividefendant's motion, held, under Code Civ. Proc. sion, reversing order of Special Term denying $ 190, appealable to the Court of Appeals as a final judgment.-Trust Co. of America v. United Boxboard Co., 107 N. E. 574, 213 N. Y. 334.

(E) Nature, Scope, and Effect of Decision.

§ 120 (N.Y.Sup.) No appeal lies from an order of the Appellate Term granting or denying a motion. In re Fred, 151 N. Y. S. 229. IV. RIGHT OF REVIEW.

See Evidence, § 251; Judgment, §§ 159, 167; (B) Estoppel, Waiver, or Agreements AfVenue, § 68.

AGENCY.

See Principal and Agent.

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See Municipal Corporations, §§ 123, 129.
ALIENS.

See Executors and Administrators, § 24.
ALTERATION OF INSTRUMENTS.

§ 27 (N.Y.Sup.) In an action on a note, the burden of explaining an alteration on its face was on the plaintiff.-Eisner v. Crommette, 151

N. Y. S. 3.

§ 29 (N.Y.Sup.) In an action on a note, where plaintiff's explanation of alterations on its face was inadequate, judgment for plaintiff will be reversed, and defendant given a new trial.-Eisner v. Crommette, 151 N. Y. S. 3.

AMBASSADORS AND CONSULS. See Executors and Administrators, § 24. AMBIGUITIES.

See Evidence, § 452.

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fecting Right.

§ 163 (N.Y.Sup.) Plaintiff waived his right of appeal from an order opening default judg ment by accepting and retaining the costs fixed by the court as terms for the granting of the motion.-Green v. Jereissati, 151 N. Y. S. 989. V. PRESENTATION AND RESERVATION IN LOWER COURT OF GROUNDS OF REVIEW. (B) Objections and Motions, and Rulings Thereon.

$185 (N.Y.Sup.) Objections going to the jurisdiction may be raised for the first time on appeal.-Meighan v. Rohe, 151 N. Y. S. 785.

§ 203 (N.Y.Sup.) An objection to defects in the proof, which were merely technical, will not be considered, when not presented below.Baker v. Donlin, 151 N. Y. S. 433.

the unsworn statement of a child is not ground for reversal where no objection was made in the § 203 (N.Y.Sup.) Admission in evidence of trial court.-Gavrilutz v. Savage, 151 N. Y. S. 808.

there was a jury question, where the evidence is
§ 237 (N.Y.Sup.) The failure of defendant to
move for a directed verdict is an admission that
unsatisfactory, and a verdict for the balance
which plaintiff testified to be due will be affirm-
ed.-Smith v. Ham, 151 N. Y. S. 998.

VII. REQUISITES AND PROCEEDINGS
FOR TRANSFER OF CAUSE.
(D) Writ of Error, Citation, or Notice.
§ 417 (N.Y.Sup.) When an appeal is allowed
from the Appellate Term by the justices thereof,
or by a justice of Appellate Division, a notice
of appeal, specifically setting forth the determi-
nation and the order entered thereon, is suffi

cient.-Locomobile Co. of America v. Nichols, | Lehrer v. Supreme Lodge Knights and Ladies 151 N. Y. S. 1010.

XVI. REVIEW.

(C) Parties Entitled to Allege Error. § 878 (N.Y.Sup.) The rule that an appellee can only be heard in support of a decree where he takes no cross-appeal is still applicable to the Appellate Division, notwithstanding the enlargement of its powers by Laws 1912, c. 380, amending Code Civ. Proc. § 1317.-People v. Steeplechase Park Co., 151 N. Y. S. 157.

(E) Presumptions.

§ 931 (N.Y.) The appellate court will not presume a finding which would be inconsistent with and necessitate a reversal of the judgment. -People v. Santa Clara Lumber Co., 107 N. E. 495, 213 N. Y. 226.

§ 936 (N.Y.Sur.) In view of Code Civ. Proc. §§ 2589, 2745-2747, held, that it would be presumed that costs allowed by the Appellate Division were merely the costs of appeal, and did not include costs in the proceeding in the Surrogate's Court.-In re Wright's Estate, 151 N. Y. S. 378.

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§ 1039 (N.Y.Sup.) That plaintiff without notice applied to open a default in furnishing a bill of particulars on defendant's motion to preclude the introduction of evidence held harmless to defendant.-Driscoll v. New York Veal & Mutton Co., 151 N. Y. S. 647.

$1046 (N.Y.Sup.) In summary proceeding by landlord, denial of tenant's right to close the case to the jury held prejudicial error, where the only issue tried was that as to an alleged extension of the lease.-Nagel Realty Co. v. Freund, 151 N. Y. S. 517.

§ 1050 (N.Y.Sup.) Evidence of a custom not to furnish lashings with a derrick held harmless, where the subcontractor who used the derrick used its own lashings.-Farelli v. Charles T. Wills Co., 151 N. Y. S. 541.

$1050 (N.Y.Sup.) Erroneous admission of defendant's books and testimony of his bookkeeper to show nondelivery of goods held prejudicial.— Winder v. Pollack, 151 N. Y. S. 870.

§ 1056 (N.Y.Sup.) The exclusion of a writing, which defendant claimed plaintiff had admitted contained the terms of an oral contract between them, held prejudicial to defendant.

of Honor, 151 N. Y. S. 991.

§ 1064 (N.Y.Sup.) An erroneous instruction that plaintiff need not show right to possession held harmless, where he did show it.-Pratt v. Prentice, 151 N. Y. S. 259.

burden of proof held prejudicial error.-Stein§ 1064 (N.Y.Sup.) Error in charging as to man v. Henry Morgenthau Co., 151 N. Y. S. 886.

§ 1066 (N.Y.Sup.) In absence of evidence that the negligence of plaintiff's intestate contributed to his injury, an instruction that the burden of proving contributory negligence was on defendant, although erroneous, simmons v. Isman, 151 Ń. Y. S. 552. was harmless.-Fitz

81071 (N.Y.Sup.) The failure of the court to file findings of fact and conclusions of law held harmless, under Code Civ. Proc. § 1317, where the conclusions to be drawn from the evidence 151 N. Y. S. 191. were apparent. Catskill Nat. Bank v. Lasher,

(J) Decisions of Intermediate Courts. $1091 (N.Y.) Under Const. art. 6, § 9, and Code Civ. Proc. § 191, subd. 4, a unanimous affirmance by the Appellate Division requires the Court of Appeals to presume that there was evidence for a finding that deceased was not engaged in interstate commerce.-Tyndall New York Cent. & H. R. R. Co., 107 N. E. 577.

V.

$1091 (N.Y.) Where a judgment of the trial court is unanimously affirmed by the Appellate Division, the Court of Appeals must assume that there was ample evidence to support 213 N. Y. 589. the judgment.-Simon v. Etgen, 107 N. E. 1066,

$1094 (N.Y.) While reversal by the Appellate Division on the facts is not reviewable, its further dismissal of the complaint for insufficient evidence is reviewable, notwithstanding Code Civ. Proc. § 1317, as amended by Laws 1912, c. 380.-Faber v. City of New York, 107 N. E. 756, 213 N. Y. 411.

late Division affirming judgment for plaintiff re81094 (N.Y.) Where an order of the Appelcited concurrence of all justices except one, who dissented on the allowance of interest, plaintiff could invoke the unanimous affirmance rule.Simon v. Etgen, 107 N. E. 1066, 213 N. Y. 589.

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$1170 (N.Y.Sup.) Under Code Civ. Proc. § 1317, requiring the court on appeal to disregard technical errors, it was not reversible error to charge that plaintiff was not guilty of contributory negligence, if he observed the ordinary degree of care to be expected of one of his age,

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

considering the rest of the charge.-Dunn v. Ruppert, 151 N. Y. S. 662.

APPLIANCES.

81175 (N.Y.) As regards power of the Appel- See Master and Servant, §§ 101-129. late Division to dismiss the complaint for insufficiency of the evidence, it may not disregard

APPOINTMENT.

testimony for plaintiff, based on estimates of See Executors and Administrators, § 17; Guardsize, because defendant's witnesses had made measurements.-Faber v. City of New York, 107 N. E. 756, 213 N. Y. 411.

ian and Ward, §§ 13-15.

APPORTIONMENT.

See Taxation, § 913.

§ 1175 (N.Y.Sup.) Though, in action to determine claims to real property, undisputed evidence showed resulting trust in defendants' favor, judgment for defendants held not to be directed; it not being clear that the evidence had been fully developed.-O'Brien v. Gill, 151 See Contracts, § 127; Reference.

N. Y. S. 682.

ARBITRATION AND AWARD.

ASSENT.

ASSESSMENT.

§ 1177 (N.Y.Sup.) In action to enjoin railroad's removal of a switch and siding construct- See Contracts, § 98. ed under an agreement, held that, on reversing a judgment for plaintiff, there should be a new trial to determine the nature of previous changes of the siding and whether they were within the agreement.-Adikes v. Long Island R. Co., 151 N. Y. S. 49.

See Municipal Corporations, §§ 408-503; Taxation, § 386.

ASSETS.

§ 1177 (N.Y.Sup.) A judgment entered upon a See Trade-Marks and Trade-Names, § 23. confusing agreed statement of facts will be reversed and the cause remanded for new trial.Mistretta v. Familiar Ass'n of Mut. Benevolence, 151 N. Y. S. 518.

(F) Mandate and Proceedings in Lower

Court.

$1194 (N.Y.Sup.) A judgment of the Appellate Division, passing on the sufficiency of the complaint, held not to conclude the question of the jurisdiction of the court over the subjectmatter.-Eldert v. Cross Country R. Co., 151 N. Y. S. 441.

$1195 (N.Y.Sup.) Determination on a prior appeal that proof of negligence resulting in decedent's death was insufficient held the law of the case on retrial.-Huscher v. New York & Queens Electric Light & Power Co., 151 N. Y.

S. 144.

XVIII. LIABILITIES ON BONDS AND

UNDERTAKINGS.

§ 1232 (N.Y.Sup.) An appeal bond given by a judgment debtor in supplementary proceedings held to estop him, after affirmance, to question the legality of the fine for contempt thereafter imposed.—Soule v. Lookstein, 151 N. Y. S. 67.

APPEARANCE.

See Bastards, § 47.

$8 (N.Y.Sup.) Voluntary appearance, to be effectual to confer jurisdiction, must be with knowledge that there is an action pending and with the intention to appear.-Duimo v. Arbuckle, 151 N. Y. S. 669.

$9 (N.Y.Sup.) A general appearance by defendant can only be made as prescribed by Code Civ. Proc. § 421.-Duimo v. Arbuckle, 151 N. Y. S. 669.

§ 19 (N.Y.Sup.) Where a nonresident defendant was not served, the court acquired no jurisdiction of him by the unauthorized general appearance for him of attorneys for his codefendant.-Duimo v. Arbuckle, 151 N. Y. S. 669.

ASSIGNMENTS.

See Action, § 65; Assignments for Benefit of Creditors; Banks and Banking, § 305; Drunkards, 5; Estoppel, § 102; Evidence, § 419; Insurance, § 214; Mechanics' Liens, § 114; Mortgages. §8 151, 213, 239, 244; Patents, § 195; Wills, § 743.

1. REQUISITES AND VALIDITY. (A) Property, Estates, and Rights Assignable.

§ 23 (N.Y.Sup.) An assignment of a claim for breach of contract of hiring, in writing, and made to a membership corporation composed of ball players formed to protect their interests, is valid.-Baseball Players' Fraternity v. Boston American League Baseball Club, 151 N. Y. S. 557.

IV. ACTIONS.

§ 131 (N.Y.Sup.) Where paragraph 3 of a complaint merely alleged the assignment of the cause of action to plaintiff, defendant's denial of information or knowledge sufficient to form a belief as to that paragraph was sufficient to put in issue the fact of the assignment.— Cohen v. Wolff, 151 N. Y. S. 936.

$137 (N.Y.Sup.) Testimony by a witness, not shown to be an officer of a corporation, that he assigned a claim due it, held not enough to warrant plaintiff in recovering as assignee of the corporation.-Cohen v. Wolff, 151 N. Y. S. 936.

ASSIGNMENTS FOR BENEFIT OF CREDITORS.

See Bankruptcy; Trade-Marks and TradeNames, § 37.

II. CONSTRUCTION AND OPERATION

IN GENERAL.

§ 179 (N.Y.Sup.) An assignee for benefit of creditors of an assignor, who had executed a

chattel mortgage fraudulent as against credi-
tors, takes title unaffected by the mortgage.-
Baillargeon v. Dumoulin, 151 N. Y. S. 112.
IV. ADMINISTRATION OF ASSIGNED

ESTATE.

§ 234 (N.Y.Sup.) Where a chattel mortgage, executed by an assignor for benefit of creditors, was fraudulent, there was no consideration for a delivery by the assignee of the mortgaged chattels to the mortgagee.-Baillargeon v. Dumoulin, 151 N. Y. S. 112.

$240 (N.Y.Sup.) Where an assignor for benefit of creditors had assigned a chattel mortgage fraudulent as against creditors, the assignee could dispose of the goods for the benefit of creditors.-Baillargeon v. Dumoulin, 151 N. Y.

S. 112.

A promise by the assignee to sell the mortgaged goods for the benefit of the mortgagee was without consideration.-Id.

VII. ACCOUNTING, SETTLEMENT,
AND DISCHARGE OF
ASSIGNEE.

§ 387 (N.Y.Sup.) Where, on the hearing of an intermediate report of an assignee for the benefit of creditors, the reasonableness of charges for attorney's fees and for a committee to operate the business was not clearly shown, the allowance will be suspended until the final accounting. In re Julius Bien Co., 151 N. Y. S. 103.

§ 390 (N.Y.Sup.) An agreement between W. and a committee of creditors that he should have 22 per cent. of the insolvent's assets for operating the business held not binding on the court. In re Julius Bien Co., 151 N. Y. S. 103..

ASSOCIATIONS.

See Beneficial Associations.

§ 20 (N.Y.Sup.) An unincorporated association is not an entity, and every member may be sued, though, if numerous, officers or members may, under Code Civ. Proc. § 1919, be sued as representatives of all.-Bossert v. Dhuy, 151 N. Y. S. 877.

ASSUMPSIT, ACTION OF.

See Work and Labor.

ATTACHMENT.

I. NATURE AND GROUNDS.

(B) Grounds of Attachment. $25 (N.Y.Sup.) Under Code Civ. Proc. §§ 2634, 2635, a New York creditor of a foreign intestate held not entitled to attach domestic assets on the ground of nonresidence, under section 1836a.-Bostwick v. Carr, 151 N. Y. S. 74.

ATTORNEY AND CLIENT.

See Action, § 12; Divorce, §§ 221, 228; Executors and Administrators, $$ 35, 281; Subrogation, § 21; Witnesses, § 206.

I. THE OFFICE OF ATTORNEY. (C) Suspension and Disbarment. § 38 (N.Y.Sup.) An attorney, instituting for his client several actions against defendant, held guilty of professional misconduct by abuse of process, justifying his suspension from practice. In re Krause, 151 N. Y. S. 299.

§ 44 (N.Y.Sup.) An attorney receiving $280 from a client to pay over to another, and having paid over only $40 and converted the balance, held guilty of misconduct warranting disbarment. In re Levien, 151 N. Y. S. 279. barment of an attorney, for fraud upon a client, § 53 (N.Y.Sup.) Evidence held to require diswho had loaned money through him upon the security of a mortgage.-In re Burlando, 151

N. Y. S. 181.

$60 (N.Y.Sup.) Under Code Civ. Proc. §§ 55, 65, plaintiff's suspension as an attorney did not prevent him from continuing to prosecute his own suit.-In re Secured Holdings Corporation, 151 N. Y. S. 422.

IV. COMPENSATION AND LIEN OF

ATTORNEY.

(A) Fees and Other Remuneration. § 140 (N.Y.Sur.) In the absence of any stipulated price to be paid for an attorney's services, there is an implied promise to pay their reasonable worth.-In re Brown, 151 N. Y. S. 390.

In determining the compensation to which attorneys were entitled, the magnitude of the client's interest involved, and the fact that the estate was managed so that there was a gain to the estate in addition to interest, were matters proper to be considered.-Id.

§ 141 (N.Y.Sur.) Where there was a large amount of property involved, a fee of $100 each for drawing several wills, and $50 for drawing a codicil, was not unreasonable.-In re Brown, 151 N. Y. S. 390.

§ 166 (N.Y.Sup.) Evidence held to show that a client impliedly promised to pay an attorney King, 151 N. Y. S. 58. the reasonable value of services.-Porter v.

§ 166 (N.Y.Sur.) Evidence in support of an attorney's claim against an estate for consultation fees held to show that a charge of $15 per week for consultations was not unreasonable.-In re Brown, 151 N. Y. S. 390.

(B) Lien.

§ 180 (N.Y.Sur.) Where an attorney, seeking to enforce a lien, claims only the costs taxed in a Supreme Court judgment, it is not essential that he shall have given notice of the lien. -In re Tierney's Estate, 151 N. Y. S. 972.

§ 182 (N.Y.Sup.) That costs belong to the client, and not to the attorney, does not affect the latter's lien on the judgment for costs.-In re Steele, 151 N. Y. S. 81.

$182 (N.Y.Sur.) Money in the hands of an administrator, applicable to a judgment recovered against the decedent, is money in the hands of a third person, to which the lien created by Judiciary Law, § 475, attaches.-In re Tierney's Estate, 151 N. Y. S. 972.

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and section (§) NUMBER

§ 184 (N.Y.Sur.) The lien of an attorney of a judgment creditor held entitled to payment from the proceeds of realty of a decedent before any of such proceeds were applied on judgments as provided by Code Civ. Proc. § 2729, subd. 3, but not entitled to priority over expenses of administration and funeral expenses.-In re Tierney's Estate, 151 N. Y. S. 972.

8189 (N.Y.Sup.) Parties to an action may settle it without the consent of their attorneys, leaving the latter to look each to his own client for compensation.-Sheeks v. Sample, 151 N. Y. S. 884.

AUTOMOBILES.

sonal check, crediting his account with the amount thereof, the funds used in paying the checks held not stolen and not recoverable by the bank, though the cashier subsequently misappropriated the bonds.-First Nat. Bank of High Bridge, N. J., v. Hudson, 151 N. Y. S. 595.

Credits by bank cashier in his deposit account held to amount to loans by the bank to the cashier as against persons receiving payments from the cashier's deposit.-Id.

Actual notice by persons receiving payment of checks drawn on cashier's personal account that the moneys received were the property of the bank held necessary, as distinguished from

See Highways, § 173; Insurance, § 325; Re- constructive notice.-Id. wards, 87; Street Railroads, § 101.

BAILMENT.

See Carriers, § 76; Sales, § 4.

§ 14 (N.Y.Sup.) Merchants held not liable to customer for loss by theft of pocketbook left in trousers pocket in dressing room while being fitted with a new suit.-Barnes v. Stern Bros., 151 N. Y. S. 887.

§ 31 (N.Y.Sup.) Testimony of a plaintiff, suing for loss of a horse and harness kept in defendant's stable, held to establish a prima facie case of negligence of defendant.-Nicoletti v. Dieckmann, 151 N. Y. S. 520.

BALLOTS.

See Elections, § 194.

BANKRUPTCY.

See Assignments for Benefit of Creditors.
III. ASSIGNMENT, ADMINISTRATION,
AND DISTRIBUTION OF BANK-
RUPT'S ESTATE.

(D) Administration of Estate.

In an action by a bank against stockbrokers to recover amounts paid on personal checks of the cashier, evidence held insufficient to show actual notice to the stockbrokers that the money so paid was the property of the bank and not of the cashier.-Id.

§ 118 (N.Y.Sup.) A bank, the payee of a note on which indorsements had been forged, will be presumed to have assented to the cashier's act in inducing the indorsers to guarantee their indorsements, on threat of prosecuting the maker. -Catskill Nat. Bank v. Lasher, 151 N. Y. S. 191.

(C) Deposits.

$145 (N.Y.) Where the G. Bank, in ignorance of plaintiff's insolvency, sent it a check as remittance for collections, which plaintiff's receiver immediately had certified by defendant. defendant could not resist payment because of the G. Bank's claimed right to offset a deposit account with plaintiff.-Carnegie Trust Co. v. First Nat. Bank of City of New York, 107 N. E. 693, 213 N. Y. 301.

A bank, having certified a check, may not resist the enforcement of its contract of certification in order to make a set-off available to its depositors.-Id.

The holder of a certified check cannot be compelled to litigate whether the maker had a right to counterclaim or set-off.-Id.

$ 249 (N.Y.Sup.) A trustee in bankruptcy, continuing the bankrupt's business, held personally liable, unless authorized by bankruptcy court, under Bankr. Act, § 2 (5).-McCauley v.ings bank at law to recover a deposit of her Jackson, 151 N. Y. S. 120.

BANKS AND BANKING.

See Executors and Administrators, § 105;
Mortgages, § 244; Taxation, §§ 386, 541,
543, 913.

I. CONTROL AND REGULATION IN
GENERAL.

$4 (N. Y. Sup.) Laws 1914, c. 369, § 500, which repeals Laws 1910, c. 348, as amended by Laws 1911, c. 393, authorizes canceling a bond given under the 1910 law and requiring a return of collaterals, but does not authorize such an order as to a bond given under Laws 1907, c. 185, as amended by Laws 1908, c. 479. In re Kovacs, 151 N. Y. S. 232.

III. FUNCTIONS AND DEALINGS. (B) Representation of Bank by Officers and Agents.

§ 154 (N.Y.Sup.) A wife may not sue a sav

money made by her husband in his name in trust for her.-Herpe v. Herpe, 151 N. Y. S. 503.

(H) Actions.

§ 229 (N.Y.) Under Code Civ. Proc. § 1251, a judgment docketed after the superintendent of banking has taken possession of the assets of a bank for liquidation does not affect the title of the purchaser of the bank's real property from the superintendent.-Lafayette Trust Co. v. Beggs, 107 N. E. 644, 213 N. Y. 280.

V. SAVINGS BANKS.

the depositor to appear in person to withdraw $305 (N.Y.Sup.) Although a bank rule requires his account, where a depositor assigns his account, the rule will not justify the bank's refusal to pay the assignee.-Bank of United States v. Public Bank of New York City, 151 N. Y. S. 26.

BASEBALL.

$112 (N.Y.Sup.) Where cashier of bank paid for bonds purchased for the bank with his per- See Assignments, § 23.

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