$5,550, to the corporation by Mrs. Archer, for the purpose of pledging the same with the New York Trust Companý as collateral security for a loan of $4,000 to the National Liquid Recording Corporation, for the term of 90 days, it was agreed that upon the maturity of the said loan the said National Liquid Recording Corporation would (a) pay the amount of said loan; (b) redeem the said Liberty Bonds; and (c) restore them to Jennie W. Archer. The foregoing is a statement of the effect of the said agreement. Simultaneously with the execution of this agreement the parties to this action entered into an agreement in writing with Jennie W. Archer, whereby they jointly and severally guaranteed to her the performance of the aforesaid contract by the National Liquid Recording Corporation, and jointly and severally obligated themselves, in case of the failure of that corporation to perform the said contract, "to take such performance" upon themselves. The last-mentioned agreement was attached to the contract between the said National Liquid Recording Corporation and Jennie W. Archer. It is clear that the obligations of the several parties to Jennie W. Archer in relation to her Liberty Bonds loaned by her to the corporation for the purpose of the pledge were as follows: The National Liquid Recording Corporation was obligated at the maturity of the 90-day loan, $4,000, to pay the amount of said loan and interest, to redeem the Liberty Bonds pledged as collateral therefor with the Trust Company, and restore those bonds to Jennie W. Archer. The loan of $4,000 was actually negotiated and made by. the New York Trust Company to the National Liquid Recording Corporation. The loan was not paid at maturity by the corporation, and therefore the corporation did not redeem the bonds and did not restore them to Jennie W. Archer, all of which the corporation agreed in its contract should be done upon the maturity of the 90-day loan. Therefore, at the maturity of the 90-day loan, to wit, on the 14th day of July, 1921, it was the joint and several obligation of the parties to this action to take performance of the National Liquid Recording Corporation's contract with Jennie W. Archer upon themselves; that is to say, the parties to this action were jointly and severally obligated, immediately upon the National Liquid Recording Corporation's default, to do the things which the corporation had neglected to do, viz. to pay the loan, to redeem the securities, and to restore them to Jennie W. Archer. This obligation was carried out by one of the parties hereto, namely, the plaintiff, Herbert S. Barnes, who, with his own funds, paid the loan of $4,000 and interest, amounting to the sum of $30.67, on the 29th day of August, 1921. He paid also, in order to effectuate the actual redemption of the bonds from the trust company, the further sum of $165.26, which was the amount of an overdraft by the National Liquid Recording Corporation upon its deposit account in the New York Trust Company. The securities were redeemed, and there is no question in the pleadings that they were restored by the plaintiff to Jennie W. Archer. Therefore, unless other circumstances in the case lead to a different legal conclusion, it is clear that the plaintiff, one of the joint obligors under the agreement of guaranty with Jennie W. Archer, actually carried out the terms of the agreement and paid a sum of money, one-half of which should have been paid and contributed by the defendant. The circumstance that the National Liquid Recording Corporation, at the maturity of the loan from the New York Trust Company, obtained an extension of the loan and renewed the note, in no way mitigated, and in fact only emphasized, the National Liquid Recording Corporation's default of its obligation to pay the loan at the expiration of the 90-day period, to redeem the bonds and to restore them to Jennie W. Archer. The obligation of the plaintiff and defendant was to pay the loan of $4,000 and interest. There was no obligation on their part to pay the amount of any overdraft on the National Liquid Recording Corporation's account. There is nothing in the agreement signed by the parties to this action which in any way obligates either or both of them to pay the amount of such overdraft, or in fact to pay any amount, except the principal of the loan, $4,000, and by necessary implication the interest which presumably would be charged by the trust company. (202 N.Y.S.) In relation to the case of Metropolitan Trust Co. v. Truax, 154 App. Div. 442, 139 N. Y. Supp. 181, affirmed 210 N. Y. 528, 103 N. E. 1127, cited by the defendant, I have determined that the same is not relevant to the present inquiry. That was a case where the Metropolitan Trust Company held an agreement, by which the intestate of the defendant therein guaranteed the payment of a loan to be made to the principal upon certain terms. The loan was made upon terms differing materially from those specified in the guaranty, without the consent of the guarantors, and it was held that the defendant was not liable. In the case at bar Jennie W. Archer loaned her securities to the National Liquid Recording Corporation for the purpose of allowing the latter to pledge the same with the New York Trust Company, presumably upon any terms that might be agreed upon between the borrower and the trust company. The National Liquid Recording Corporation agreed to pay the 90-day loan at maturity, to redeem the bonds and restore them to her. The plaintiff and defendant guaranteed the performance of this obligation of the National Liquid Recording Corporation, and agreed, in effect, that, if it did not carry out its said agreement, they, the plaintiff and defendant, would jointly and severally take performance of the same upon themselves. Instead of paying the loan at maturity, the corporation omitted to pay it, and negotiated an extension of it, to which Mrs. Archer is not shown to have been a party, and therefore there was a breach of the National Liquid Recording Corporation's agreement, and it was incumbent upon plaintiff and defendant jointly and severally to take performance upon themselves; the plaintiff alone of the parties guarantor performed the agreement. He is entitled to contribution from the defendant of one-half of the amount of $4,000 paid by him and the interest thereon paid by him, but not of the amount of the overdraft paid by him. I conclude, therefore, that the motion of the defendant for a dismissal of the complaint must be denied; that the defendant's motion for a direction of a verdict in favor of the defendant must be denied; and that the plaintiff's motion for a direction of a verdict in his favor must be granted to the extent of one-half of the amount of the principal of the loan and interest paid, to wit, one-half of $4.030.67, or $2,015.34, less, however, the credits of $146.86 received by the plaintiff January 13, 1922, and $38.18 received by him November 15, 1922, with appropriate interest adjustments as follows: The plaintiff is entitled to principal of payment as above..... $2,015.34 174.34 Total ... $2,189.68 Less credits as follows: Amount received by plaintiff, January 13, 1922...... $146.86 1.29 225.73 $1,963.95 Total Balance I direct a verdict in favor of the plaintiff for the last-mentioned amount of $1,963.95; defendant's motion for a direction of a verdict in his favor denied; defendant's motion to dismiss the complaint denied. Exception is granted to the plaintiff to the court's refusal to direct a verdict in favor of the plaintiff for the larger amount requested in plaintiff's motion for a direction of a verdict, exception to the defendant upon the court's denial of his motion to dismiss the complaint, and a like exception to the defendant upon the court's denial of his motion for a direction of a verdict in favor of the defendant. Argued before KELLY, P. J., and RICH, JAYCOX, MANNING, and YOUNG, JJ. Rowe & Flagg, of New York City, for appellant. James D. Merriman, of New York City, for respondent. PER CURIAM. Judgment unanimously affirmed, with costs, upon the opinion of Mr. Justice TAYLOR at Trial Term. (121 Misc. Rep. 637) NOVI v. DEL PRETE et al. (Supreme Court, Kings County. October, 1923.) 1. Injunction 137(1)—Temporary injunction restraining alleged encroachment not issued, in view of plaintiff's permission. Where a large part of the work of putting shingles and tar paper oneeighth of an inch in thickness on a wall, which it is claimed already encroached on plaintiff's property, had been completed, and plaintiff granted permission to do the work but later ordered it stopped, a temporary injunction will not issue, restraining the continuance of the work, in view of an affidavit that the work done is within the line shown on plaintiff's survey as the extent of the property belonging to defendants. 2. Trespass l-Maxim "de minimis" not applicable to wrongful invasion of property. The maxim "de minimis non curat lex" is never applied to the positive and wrongful invasion of another's property. Action for a mandatory injunction by Rosina Novi against Giovanni Del Prete, also known as Del Petra or Del Pertre, and another. On motion for a temporary injunction. Motion denied. Thomas W. Constable, of New York City, for plaintiff. HAGARTY, J. Plaintiff moves for an order restraining the defendants from continuing the work of placing shingles and tar paper upon the wall adjoining the property of the plaintiff, for the reason that the wall encroaches upon the plaintiff's property and this would be an additional encroachment. The shingles and tar paper are oneeighth of an inch in thickness. The relief demanded in the complaint. is that the defendants be enjoined and restrained from the further construction of tar paper and shingles upon the wall, and from continuing the said wall and fence upon plaintiff's premises, and that plaintiff have judgment recovering possession of her property upon which said wall and fence are now erected. It appears from the affidavit submitted by the defendants, and is not disputed, that permission was granted the defendants to do this work and that a large part of it has been complet-. ed. Plaintiff then ordered the work stopped, and this suit resulted. [1] Defendants' house is a frame building, and was erected 35 or 40 years ago on the west side of Second avenue, between Forty-First and Forty-Second streets, Brooklyn. It is the southerly wall that plaintiff claims encroaches. It appears by affidavit that the work done, and of which plaintiff complains, is within the line shown upon the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (202 N.Y.S.) plaintiff's survey as the extent of the property belonging to the defendants. Mandatory injunctions to compel removal of encroachments are allowed, for the reason that it is often impracticable to put the owner in possession in the action of ejectment. Careful examination of the cases has failed to disclose any authority containing facts similar to those disclosed here. The nearest approach is Mulrein v. Weisbecker, 37 App. Div. 545, 56 N. Y. Supp. 240. In that case the trial judge had assumed that the encroachment did not exceed one-half an inch, and held that it was so insignificant and inconsiderable as to deprive the plaintiff of the equitable relief asked. The judgment was reversed, however, because of an erroneous finding of fact that the encroachment was only one-half an inch, it being from three to four inches. The appellate court took occasion to say in its opinion: "Whatever question there may be as to an appropriation of but one-half an inch, as to which, in view of the simple character of the extension and the absence of any element of special inconvenience in the surrounding conditions, we do not wish to be understood as agreeing with the learned trial judge, there can be none as to so serious an encroachment as from three to four inches." [2] While the maxim "de minimis non curat lex" is never applied to the positive and wrongful invasion of another's property, it appears that the work is within the survey lines, and that it was commenced with the plaintiff's permission, and hence was not wrongful. The plaintiff is not entitled to a temporary injunction restraining the continuance of the work described. If the plaintiff is entitled to a mandatory injunction compelling the removal of the encroachment, it will be granted upon the trial, including the improvements to the wall made and to be made. Motion denied. Submit order upon notice. Ordered accordingly. (121 Misc. Rep. 624) PEOPLE ex rel. PETRUCCI v. HANLEY. (Supreme Court, Special Term, New York County. October, 1923.) 1. Witnesses 21-Finding that witness' answer of not being able to remember was contumacious refusal to answer warranted. Where, on a hearing of an information, a witness in response to magistrate's question stated, "I cannot remember," held, that the magistrate was justified in finding that the answer was in effect a contumacious refusal to answer, authorizing punishment under Code Cr. Proc. § 619, for criminal contempt. 2. Contempt 36—Judge of New York County Court of General Sessions, sitting as magistrate, authorized to punish for criminal contempt; "magistrate." A judge of the Court of General Sessions of New York County, sitting as a magistrate, is not a city magistrate acting under the limited authority of city magistrates, but a "magistrate," within Code Cr. Proc. § 619, authorizing a court or magistrate to punish for criminal contempt. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Magistrate.] Habeas corpus by the People of the State of New York, on the relation of Nicholas Petrucci, against John J. Hanley, individually and as Keeper and Warden of the New York City Prison, or the Sheriff For other caseu see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes of New York County, or any other officer or person in whose custody or control relator may be. Writ dismissed, and relator remanded. Antonio C. Astarita, of New York City, for relator. Joab H. Banton, Dist. Atty., of New York City (John Caldwell Myers, of New York City, of counsel), for respondent. DAVIS, J. The relator, Nicholas Petrucci, after being adjudged guilty of a criminal contempt of court, committed in the immediate view and presence of the court, was sentenced to imprisonment for a period of thirty days and to pay a fine of $250. The commitment was made by Judge Crain, a judge of General Sessions, who at the time was sitting as a magistrate. The order of commitment was made and entered on September 5, 1923. It provides for the term of imprisonment, and also for an additional term of 30 days, commencing at the expiration of the definite sentence, in default of the payment of the fine imposed. The relator brings this proceeding by writ of habeas corpus to test the validity of the order of commitment. [1] It appears from the commitment that on May 9, 1923, Police Commissioner Enright laid before Judge Crain, then sitting as a magistrate, an information in writing charging on oath Joseph E. Corrigan and Louis A. Cuvillier with criminal libel, as defined by section 1340 of the Penal Law. The defendants Corrigan and Cuvillier appeared on May 22, 1923, before the magistrate and demanded an examination of the charge against them. Thereafter the examination was held on various days including August 28, 1923. On the last-mentioned day, the relator, being then on the witness stand and under oath, was interrogated as follows by the magistrate: "Nicholas Petrucci, when I put you the following question, I am not making an inquiry as to the state of your memory: State the name or names of the persons who, on or about May 17, 1921, purchased from Ernest Petrucci, or from the firm of which he was a member, and in which you were employed as a bookkeeper, 834 cases of liquor, or some portions of the same, at or about such time contained in a garage or building known as Greeley Garage in the county of New York." Referring to this interrogatory put by the magistrate, the commitment recites that relator, instead of answering the said interrogatory, then and there stated as follows: "I do not remember." The magistrate thereupon asked the relator, "Do you give as a reason for not answering the question that you cannot remember?" The relator answered, "Yes, sir." As appears from the commitment, the learned magistrate found "from all the testimony in the case touching the premises, including that given by the said Nicholas Petrucci and Ernest Petrucci, and from the appearance and demeanor of the said Nicholas Petrucci as a witness, and his manner of testifying, * * that the relator then and there could and did remember the name or names of the persons who on or about the said date so purchased the said 834 cases of liquor, or some portion thereof." * The magistrate also found that relator's response was in effect a refusal to answer the question, and for that reason his conduct was contumacious and unlawful. The magistrate proceeded under section 619 of the Code of Criminal Procedure, which provided, among other mat |