(202 N.Y.S.) [3, 4] Whether plaintiff was bound to see that defendant would skid his car around to the east side of Van Rensselaer street and collide with plaintiff presents quite clearly a question of fact. The decision of the - trial court, upon all the facts, that the plaintiff was not guilty of contributory negligence, cannot be disturbed. Judgment affirmed. (206 App. Div. 561) PEOPLE ex rel. NEW YORK CENT. R. CO. v. STATE TAX COMMISSION. (Supreme Court, Appellate Division, Third Department. November 15, 1923.) Taxation 144-Grant of right of way to railroad over navigable river held not "special franchise." The right of a railroad to construct embankments and bridges over a bay of a navigable river, and to operate its trains thereon under a grant from the state of the land under water, is not a special franchise, subject to taxation. Appeal from Supreme Court, Albany County. Certiorari by the People of the State of New York, on the relation of the New York Central Railroad Company, against the State Tax Commission, to review special franchise tax assessments. From final orders entered on the report of a referee, canceling relator's assessments in the Town of Stockport, Columbia County, for the years 1919 to 1921, inclusive, the State Tax Commission appeals. Affirmed. Appeal by the state tax commission from a final order of the Supreme Court in certiorari proceedings to review a special franchise tax assessment, entered in the office of the clerk of the county of Albany on the 8th day of December, 1922, upon the report of a referee, canceling the relator's assessment in the town of Stockport, Columbia county, N. Y., for the year 1919. Appeals from two similar orders relating to the assessments for the years 1920 and 1921, respectively, and involving the same questions, by stipulation. were argued with this appeal and are decided herewith, only one opinion being delivered. Argued before COCHRANE, P. J., and HENRY T. KELLOGG, HINMAN, HASBROUCK, and McCANN, JJ. Carl Sherman, Atty. Gen. (John M. Farrell, Deputy Atty. Gen., of counsel), for appellant. Alexander S. Lyman, of New York City (George H. Walker, of New York City, of counsel), for respondent. HENRY T. KELLOGG, J. The Stockport creek, a stream in Columbia county, discharges its waters into a bay of the Hudson river. The relator's tracks, upon embankments and bridges, cross the mouth of the bay. The relator occupies the uplands by virtue of a grant from the upland owner, and occupies the land under water by virtue of a grant from the state of New York. The state tax commission has held that, because the tracks of the relator cross the waters of the Hudson river, a navigable stream. the relator exercises special franchises, and accordingly the commission has assessed the relator therefor. In People ex rel. Hudson & M. R. Co. v. State Board of Tax Com'rs, 203 N. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes Y. 119, 96 N. E. 435, the relator was the grantee of a right of way 160 feet wide and 40 feet high under the waters of the Hudson river, and within such strip constructed tunnels through which it operated its railway trains. The grant of the right of way was made to it by the commissioners of the land office of the state. It was held that the construction of the tunnels and the use of the same did not constitute an exercise of special franchises. In delivering the opinion of the court, Chief Judge Cullen took up the very question now presented, and said: "I do not see how it is possible to differentiate this case from great portions of the New York Central Railroad which, between New York and Albany, have for long distances been constructed within the bounds of the Hudson river under authority given that company's predecessor by the act of 1846 1 to so construct its road, and the title to the land acquired from grant of the land commissioners. N. Y. Central & H. R. R. R. Co. v. Aldridge, 135 N. Y. 83. Surely nobody has ever thought that that company was exercising any special franchise within the meaning of the statute, where the road runs in the bed of the river from point to point." The words of Chief Judge Cullen would seem to be conclusive to determine the question at issue. The orders should be affirmed, with costs. Final orders unanimously affirmed, with costs. COCHRANE, P. J., and HINMAN, HASBROUCK, and McCANN, JJ., concur. GLOBE CONST. CO. v. GLOBE TILE CO., Inc. (Supreme Court, Appellate Division, Second Department. December 27, 1923.) Contracts 303(1)—Plaintiff's sale of property after defendant's breach of contract held no defense. If defendant's breach of the contract sued on occurred before plaintiff sold the property, the sale would be no defense in favor of defendant, and in no event would it be a defense, unless defendant refused to go on because of the sale, or because plaintiff by the sale had made it impossible for defendant to perform. Appeal from Supreme Court, Kings County. Action by the Globe Construction Company against the Globe Tile Co., Inc. From an order setting aside a verdict in its favor, and granting a new trial, plaintiff appeals. Affirmed. Argued before KELLY, P. J., and JAYCOX, MANNING, YOUNG, and KAPPER, JJ. Julius Schwartz, of Brooklyn (Michael Furst, of Brooklyn, on the brief), for appellant. Herman S. Bachrach, of Brooklyn (Samuel S. Bisgyer, of Brooklyn, on the brief), for the respondent. PER CURIAM. We are of the opinion that a new trial should be had, in order that the issues in the case should be fully presented to the jury. Upon the trial already had the only issue submitted was the ques 1 Laws 1846, c. 216, since amended. (202 N.Y.S.) tion of the cancellation of the contract by the defendant. Whether the contract was broken by plaintiff by the sale of part of the property was also a question of fact. If defendant had breached the contract through failure to perform before plaintiff sold, the sale plainly would not then help the defendant. Nor in any event would it be a defense unless defendant refused to go on because of the sale, or unless plaintiff, by the sale, had made it impossible for defendant to perform. Whether the statement at the top of defendant's proposal should be considered part of the contract may be a question of fact in the case. Sturtevant Co. v. Fireproofing Film Co., 216 N. Y. 199, 110 N. E. 440, L. R. A. 1916D, 1069. We have examined the method adopted by plaintiff in proving damages, and do not consider it improper under the circumstances, nor do we find error in the allowance of the crossexamination of defendant's president as to his previous conviction. The order setting aside the verdict and granting a new trial should be affirmed, with costs. PANZICA v. BOASBERG. (Supreme Court, Special Term, Erie County. December, 1923.) 1. Pleading ~345 (1)—Judgment on pleadings on theory that note was accommodation note and purchase usurious not authorized. Allegations that defendant purchased plaintiff's $700 note for $500 from payee, that plaintiff paid defendant $200 on the note and gave him a $500 note for the balance due, and that in a suit on the $500 note the defense of usury was sustained, held not to authorize a judgment on the pleadings for the $200 paid, on the theory that plaintiff was an accommodation maker of the $700 note and defendant's purchase of it was usuri ous. 2. Pleading 8(6)—Allegations that note had been decreed void and was void held conclusions. In an action to recover money paid on a note, allegations that the note had been judicially decreed void, and that it was void, held conclusions. and not statements of fact. Appeal from City Court of Buffalo. Action by Joseph P. Panzica against Julius Boasberg. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed. Charles Diebold, Jr., of Buffalo, for appellant. BROWN, J. [1] The City Court rendered judgment in favor of plaintiff against defendant upon the pleadings, at the trial. The trial court based its judgment upon the admission contained in defendant's answer. The only facts established by the pleadings are: That on or about September 27, 1920, the defendant represented to plaintiff that he had a promissory note of the plaintiff by virtue of a transfer to defendant for the payment by plaintiff to defendant of $700, with interest from June 23, to September 27, 1920; that the note was made by the plaintiff to G. Louis Woodford for $700, and that he For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 202 N.Y.S.-21 had become the owner of said note by purchase of the same from said Woodford; that the plaintiff paid to defendant the sum of $200 in cash to apply on said alleged obligation, together with $10.85 interest, at the same time executing and delivering a note of $500 to the defendant, to secure the payment of the remainder unpaid on the $700 note; that the defendant paid Woodford $500 for the transfer to him of the $700 note; that in a suit upon the $500 note the defense of usury interposed by the plaintiff was sustained by the court; that prior to the commencement of this action plaintiff duly demanded repayment of the said $200, with interest. Solely upon these facts the trial court seems to have decided that the plaintiff was the accommodation maker of the $700 note; that defendant's purchase of the same from Woodford for $500 was usurious; that the courts had declared the $700 note usurious and void from its inception, and no validity given to the $500 note; that the plaintiff paid the $200 to the defendant under the mistaken belief that the $700 note was a valid obligation; that the $700 note being void, plaintiff was under no obligation to pay it, or any part thereof, and could recover his payment of $200. The established facts proved by the pleadings above recited do not prove that the plaintiff was the accommodation maker of the $700 note to Woodford; they do not prove that the $700 note was void for usury; they do not prove that plaintiff was not indebted to Woodford in the amount of $700 when he gave his note to Woodford; they do not prove that the initial consideration represented by the $700 note was its purchase by the defendant for $500; they do not prove what usury it was that constituted a successful defense to the $500 note; they do not prove that the $700 note was not enforceable by Woodford against plaintiff. The facts established by the pleadings do not constitute a cause of action. [2] The complaint does not allege that the plaintiff, was an accommodation maker of the $700 note. No fact is alleged in the complaint from which the conclusion could be reached that the $700 note was not the valid obligation of the plaintiff in the hands of the payee Woodford. The allegation in the complaint that the $700 note had been judicially declared void is the statement of a conclusion. Not a fact is stated that would warrant such a judicial declaration. The allegation in the complaint that the $700 note was void and a nullity is the statement of a conclusion. It is not alleged that defendant was a party to the judgment. Not a fact is stated that made the $700 note void or a nullity. The judgment appealed from must be reversed, and complaint dismissed, with costs. (203 N.Y.S.) In re DUFFY. (Supreme Court, Special Term, Livingston County. December, 1923.) Parent and child 2(3)-Mother held not entitled to custody of child left with defendants more than 5 years. Where a divorced wife left her 17 months old boy with defendants, a respectable and industrious young married couple owning their own farm, stating that she would never claim the child, and only came to visit him three times during more than 5 years, during which time defendants provided for his care and maintenance, and furnished him with a comfortable and happy home, and had come to love him as their own child, the mother's petition for custody of the child should be denied. Petition for writ of habeas corpus by Mary B. Duffy to obtain custody of her child. Writ and petition dismissed, and custody awarded to defendants. Austin W. Erwin, of Geneseo, for petitioner. G. W. Harding, of Hume, for defendants. BROWN, J. In October, 1915, the petitioner married John L. Butterworth in Kentucky; on August 21, 1916, the child, Frederick, whose custody is sought in these proceedings, was born of that marriage. In January, 1917, petitioner abandoned her husband and came to Houghton, N. Y., with her child. In 1920 John L. Butterworth obtained a divorce from the petitioner in an action in the circuit court of Indiana upon substituted service of the process of that court. The petitioner being unwilling to be burdened with the care and maintenance of the child, in March, 1918, when the infant was 17 months old, took the infant to the house of the defendants, in the town of Hume, Allegany county, and gave the child to the defendants, placing it in the arms of Myrtle Porter, stating that she gave the child to the defendants; that she would never claim the child, unless the defendants were willing to give it up. At the same time petitioner gave the defendants all the child's clothing and playthings. The defendants had no children of their own, are farmers owning and residing upon a small farm, a respectable, prudent, industrious, well thought of young married couple. From that date they have had exclusive care, support, and maintenance of the child, giving to the child their fondest care and attention, have grown to love it as a child of their own. The child knows no other father or mother. It is a very sweet, affectionate little boy, now 7 years old, very fond of the defendants, and has been the subject of their most tender love and affection. For more than 5 years the petitioner saw the child but three times, and then at the defendant's home, always speaking of the child as the defendant's child. In July, 1919, the petitioner wrote the defendants: "The pictures show that you have a fine boy. The Lord has taken my fear away concerning any one bothering you over the babe." In July, 1921, the petitioner wrote the defendants: "I enjoyed the visit to you home very much and was pleased with the interest you had in your little Frederic man." For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |