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law of the land, instead of the Constitution of the United States and the laws and treaties made in pursuance thereof."

Defendants, then, must rely solely upon Snyder's customary title. But that title has never been ratified nor recognized by Congress. Plaintiffs' lease has been so ratified, and it must control. We need go no further than to say that, even though the customary title by occupancy vests in the individual Indian for agricultural purposes, Congress refuses to recognize the right of the individual to acquire oil and gas rights by such occupancy, but recognizes the authority of the Indian Council to dispose of such rights, with congressional approval, for the benefit of the nation as a whole.

Judgment for plaintiffs accordingly.

(88 Misc. Rep. 20)

TOMPKINS v. INTERBOROUGH RAPID TRANSIT CO. (Supreme Court, Appellate Term, First Department. December 4, 1914.) CARRIERS (§ 320*)—INJURIES TO PASSENGERS-Sudden Jerk.

That a carrier's car was stopped so suddenly and violently as to throw plaintiff, a passenger, off her feet, justified an inference that due care in the operation of the car was not used, and in the absence of other evidence was sufficient to carry an action growing out of injuries sustained by plaintiff in her fall to the jury.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.*1

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by William M. Tompkins against the Interborough Rapid Transit Company. From a Municipal Court judgment, dismissing the complaint at the close of plaintiff's case, plaintiff appeals. Reversed, and new trial ordered.

Argued October term, 1914, before SEABURY, BIJUR, and COHALAN, JJ.

George Doan Russell, of New York City, for appellant.

James L. Quackenbush, of New York City (Bayard H. Ames and John Montgomery, both of New York City, of counsel), for respond

ent.

SEABURY, J. Plaintiff sues to recover damages for the loss of the services of his wife on account of personal injuries which his wife sustained through the alleged negligence of the defendant. The plaintiff's wife was a passenger on one of the trains on defendant's Third Avenue elevated road. The evidence showed that as she was about to leave the car, and had stepped forward toward the door, the car in stopping gave a sudden lurch, which caused her to fall. On cross-examination an attempt was made to make it appear that she had fallen over an obstruction in the aisle, but she adhered to her story that the suddenness with which the car stopped threw her against the obstruc*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

tion. The fact that the car was stopped so suddenly and violently as to throw the plaintiff off her feet justifies the inference that due care in the operation of the car was not used. The evidence of the jerk which the car gave indicated negligence in its operation, and, in the absence of other evidence, was sufficient to carry the case to the jury. The fact that the car gave a lurch or jerk sufficiently appeared from the testimony, and the use of these terms was not merely characterization. In view of the proof adduced and the circumstances proved, there was sufficient evidence to call upon the defendant to explain. The dismissal of the complaint requires a reversal of the judgment. Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.

ELDERT v. CROSS COUNTRY R. CO. et al.

(Supreme Court, Appellate Division, Second Department. November 27, 1914.) RECORDS (§ 9*)-REGISTRATION OF TITLE TO LAND-STATUTORY PROVISIONS— TITLE TO SUPPORT.

Under the statute, which requires that plaintiff shall be in possession of the land as a condition precedent to registering the title, plaintiff, alleging possession of land, is not entitled to judgment registering the title, where the complaint and certificate of title show that an estate has built structures on parts of the land, and that the structures are actually occupied by numerous persons, who recognize the estate or a third person as landlord, and who in no way recognize plaintiff, and who claim no interest through him.

[Ed. Note.-For other cases, see Records, Dec. Dig. § 9.*]

Appeal from Special Term, Queens County.

Action by Luke Eldert against the Cross Country Railroad Company and others. From an interlocutory judgment for plaintiff, defendants Samuel M. Meeker and Milford B. Streeter, as executors of Peter Wyckoff, deceased, appeal. Reversed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and PUTNAM, JJ.

William Bell Wait, Jr., of New York City (Henry Crofut White, of New York City, on the brief), for appellants.

Gilbert Ray Hawes, of New York City, for respondent.

PER CURIAM. Although the plaintiff alleges possession of the land, the complaint and certificate of title show that the Wyckoff estate have built several structures on portions of the land, which are actually occupied by numerous persons, who recognize the Wyckoff estate or Sarah Maria Streeter as their landlord. These persons in no way recognize the plaintiff, and claim no interest through him. The statute clearly requires that the plaintiff be in possession of the land as a condition precedent to registering the title. It is unnecessary to make the complaint more definite and certain, inasmuch as it clearly shows that the plaintiff does not occupy the land, either directly or

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

indirectly, and that his assertion of possession is denied by the physical fact that there is occupation under an adverse title.

The order and interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to plead over within 20 days upon payment of such costs.

ELDERT v. CROSS COUNTRY R. CO. et al.

(Supreme Court, Appellate Division, Second Department. November 27, 1914.) Appeal from Special Term, Queens County.

Action by Luke Eldert against the Cross Country Railroad Company and others. From an interlocutory judgment for plaintiff, defendant Sarah Maria Streeter appeals. Affirmed.

Argued before JENKS, P. J., and BURR, THOMAS, CARR, and PUTNAM, JJ.

PER CURIAM. Orders affirmed, with $10 cost and disbursements, on the authority of Eldert v. Cross Country R. R. Co., 150 N. Y. Supp. 220, decided herewith.

(87 Misc. Rep. 128)

In re PRAETZ.

(Supreme Court, Special Term, Kings County. October, 1914.)

1. EXECUTORS AND ADMINISTRATORS (§ 375*)-JURISDICTION OF SURROGATE'S COURT-APPROVAL OF SALE-ASSIGNMENT FOR BENEFIT OF CREDITORS.

Where executors have carried on the business of their decedent without authority, the Surrogate's Court has no jurisdiction to grant an application by the executors' assignee for the benefit of creditors for the approval of his sale of decedent's realty.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1529-1538; Dec. Dig. § 375.*]

2. EXECUTORS AND ADMINISTRATORS (§ 139*)-ASSIGNMENT FOR BENEFIT OF CREDITORS-SALE BY ASSIGNEE-VALIDITY.

Where executors have without authority carried on the business of their decedent, a conveyance by their assignee for the benefit of creditors of realty assigned to him by the executors is void.

[Ed. Note.-For other cases, see Executors and Administrators, Cent. Dig. 567; Dec. Dig. § 139.*]

In the matter of the general assignment of Joseph J. Praetz, as executor and trustee under the last will and testament of John Praetz, deceased, to Redmond Kersey, Jr., for the benefit of creditors. On motion by the assignee for approval of his sale of realty. Denied. George M. Schinzel, of Brooklyn, for assignee.

CRANE, J. [1, 2] This is most decidedly a very unique proceeding. Two executors have made a general assignment for the benefit of creditors under the Debtor and Creditor Law (Consol. Laws, c. 12). The assignment states that they have been doing business under the name and style of "the Estate of John Praetz." Executors and testamentary trustees are generally subject to the jurisdiction of

For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

the Surrogate's Court. 'In Bankers' Surety Co. v. Meyer, 205 N. Y. 219, 98 N. E. 399, Ann. Cas. 1913D, 1218, it was held:

"Ordinarily, where the Surrogate's Court has ample power to protect the rights of the parties by enforcing a just and proper administration of a decedent's assets, the Supreme Court will not undertake the administration of his estate. But it is well established that when a Surrogate's Court with its limited jurisdiction is unequal to the task of grappling with special circumstances, the Supreme Court will entertain jurisdiction and avoid a failure of remedy or a miscarriage of justice."

This is not such a case. Nowhere does it appear that the executors were given power to carry on business. If not, this court has no jurisdiction, and if they did have the power the debts subsequently accruing could not be collected out of the estate of the deceased to the exclusion of prior creditors. The powers and liabilities of executors continuing business are fully set forth in Willis v. Sharp, 113 N. Y. 586, 21 N. E. 705, 4 L. R. A. 493, and Redfield, Surrogate's Court Practice (6th Ed.) § 611.

The assignee for the benefit of creditors asks this court to approve his sale of real estate. If this be the real estate of the deceased a conveyance by the assignee, even with the approval of this court, would be absolutely void. Real estate of a deceased person cannot be thus disposed of for the benefit of creditors. But, even if this were the assignment of persons in their individual capacity, this court has no right to approve or disapprove sales except upon accounting or as provided in section 24 of Debtor and Creditor Law. The assignee is not an officer of this court.

Application denied.

(87 Misc. Rep. 65)

MELLEN et al. v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Special Term, Kings County. September, 1914.) INJUNCTION (§ 102*)-GROUNDS-VIOLATION OF ORDINANCE.

An injunction will not lie to restrain a street railway company from permitting smoking on its street cars in violation of a city ordinance making such smoking unlawful.

[Ed. Note. For other cases, see Injunction, Cent. Dig. § 176; Dec. Dig. § 102.*]

Action by Ida Mae Mellen and others against the Brooklyn Heights Railroad Company. On motion for injunction pendente lite. Denied Twyman O. Abbott, of New York City, for motion.

George D. Yeomans, of Brooklyn, and Howard L. Moody, opposed.

VAN SICLEN, J. Plaintiffs seek an injunction pendente lite restraining the defendant, a street surface railway company, from permitting smoking on its street cars. Plaintiffs urge in support of their application that a city ordinance renders smoking in the defendant's cars unlawful and that such smoking is injurious to their health. The defendant admits that it permits smoking during the summer months on the four rear seats of the so-called open and convertible cars, in

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

pursuance of an order of the public service commission. For the dis position of this motion it is not necessary to determine whether or not the public service commission had the power and authority to issue said order. The violation of a city ordinance is a misdemeanor, and therefore a crime. In effect the plaintiffs seek the mandate of this court to compel the defendant to prevent the commission of crime upon its cars. It has uniformly been held that the threatened commission of a crime will not be enjoined by a court of equity, unless there appear also "some interferences, actual or threatened, with property or rights of a pecuniary nature." See Matter of Debs, 158 U. S. 564, 15 Sup. Ct. 900, 39 L. Ed. 1092.

It remains, then, to determine whether or not the acts complained of constitute such an interference with property or right of a pecuniary nature as will entitle the plaintiffs to the benefit of this rule. I am satisfied that the papers do not show such an interference. In fact, I am not convinced that any right of property or of a pecuniary nature is involved at all. The claim of injury to health is at most conjectural and speculative. None of the allegations of the moving papers impresses me as sufficient to entitle the plaintiffs to the relief sought. It seems, furthermore, that the plaintiffs have sufficient protection from such acts as may constitute punishable violations of the law. Any of the offenses complained of must from the very nature thereof be committed in the immediate presence of the plaintiffs, and if the city ordinance is enforceable at all, as the plaintiffs claim it is, the offending violators thereof are amenable to a prosecution thereunder. It is merely necessary for the plaintiffs to make the requisite complaint to the proper authorities. It is in no wise necessary for the court to summarily enforce upon the defendant the duty of executing the criminal laws. Motion denied.

Motion denied.

(164 App. Div. 531)

SEABOTT v. JOHN WANAMAKER, NEW YORK.

(Supreme Court, Appellate Division, Second Department. November 13, 1914.) COURTS (§ 188*)—MUNICIPAL COURTS-JURISDICTION-CONDITIONAL SALE"ACTION ON IMPLIED CONTRACT"-"ACTION ON CONTRACT OF CONDITIONAL SALE."

An action in the Supreme Court to recover payments made on a conditional sale contract, under Personal Property Law (Consol. Laws, c. 41) § 65, providing that, when the seller of personal property under a conditional sale contract retakes the goods for default in payment, he must hold them for 30 days and then sell them at auction, or the buyer may recover the amounts paid, is not an "action on an implied contract," of which the Municipal Court has jurisdiction under Municipal Court Act (Laws of 1902, c. 580) § 1, subd. 1, as amended by Laws 1905, c. 513, § 1, but is an "action on a contract of conditional sale," within section 139 of that act, of which action the Municipal Court has jurisdiction to give only the particular relief therein specified, which does not include a recovery of installments paid, so that the plaintiff is not prevented from recovering costs by Code Civ. Proc. § 3228, subd. 5, providing that in actions in the Supreme Court triable in the county of New York, which For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

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