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and 140 New York State Reporter but there is no proof that she knew they were so charged, or that she ever authorized him to charge them to her.

The judgment should be affirmed, with costs. All concur, except SMITH, P. J., not voting.


In re LAURENT. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) CONTEMPT-GROUNDS-FAILURE TO COMPLY WITH ORDER OF COURT.

The fact that a referee in partition for a long time improperly withheld payment from a party of her distributive share of moneys in his hands payable to her under the judgment, while sufficient to render him subject to a proper application to the court to compel compliance on his part with the judgment, was no justification for holding him as for a contempt in failing to comply with an order directing plaintiff in the ac tion to proceed therewith and continue therein with all reasonable dis

patch to judgment. Appeal from Special Term, Fulton County.

Action by Alonzo Youker against Fremont Youker and others. From an order denying his application to vacate an order adjudging him guilty of a contempt and imposing a fine, Fred C. Laurent, referee in said action, appeals. Reversed.


Clarence A. Leavitt, for appellant.
Charles A. Stone, for respondent.

CHESTER, J. The appellant has been adjudged guilty of contempt of court in willfully disobeying the order of the court made on the 22d day of December, 1906, by refusing and neglecting to pay over to the defendant Fannie Barker her distributive share of the moneys in his hands, being the proceeds of the sale of land in this action as directed in said order. Reference to the order of December 22, 1906, shows that it contains no such direction. That order commands the plaintiff, and not the appellant, to proceed with said action and to continue therein with all reasonable dispatch to final judgment. There was no requirement in that order that the appellant should do anything, and nothing appears showing that he has in any respect violated it. The fact that he, as referee in partition, for a long time improperly withheld payment from the respondent of her distributive share of the moneys in his hands payable to her under the judgment, was sufficient to render him subject to a proper application to the court to compel compliance on his part with the judgment; but that fact is no justification for holding him as for a contempt in failing to comply with the order referred to, for he has not been shown guilty of any violation of that order.

The order should be reversed, with $10 costs and disbursements, and the motion granted, without costs. All concur.

MCCARTY V. NATURAL CARBONIC GAS CO. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) APPEAL-DISMISSAL-GROUNDS—WANT OF ACTUAL CONTROVERSY.

Where an appeal from an order of the Special Term suspending a judgment enjoining defendant from burning soft coal for generating steam, which order was entered after affirmance of the judgment by the Court of Appeals, and was therefore urged to have been entered without jurisdiction, was not argued until over a month after the period of suspension had expired, the appeal will be dismissed; nothing remaining but the abstract question.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3122.]

Appeal from Special Term, Saratoga County.

Action by Richard H. McCarty against the Natural Carbonic Gas Company to enjoin defendant from burning soft coal for generating

From an order suspending for 30 days the judgment enjoining defendant from so doing, after affirmance of such judgment by the Appellate Division and Court of Appeals, plaintiff appeals. Appeal dismissed.


George R. Salisbury, for appellant.
Hiram C. Todd, for respondent.

CHESTER, J. The order appealed from suspends for 30 days the provision in the judgment enjoining the defendant from burning soft coal on its property for generating steam; such suspension being for the purpose of allowing the defendant to make the necessary changes in its plant in order to use hard coal for generating steam. The order was made after the judgment containing such injunction had been affirmed by this court and the Court of Appeals. McCarty v. Natural Carbonic Gas Co., 114 App. Div. 908, 100 N. Y. Supp. 1127; S. C., 189 N. Y. 46, 81 N. E. 519. It is now urged by the appellant that the Special Term was without jurisdiction to grant the order in question, as its effect was to modify a judgment after its affirmance by the court of last resort.

The order was made July 19, 1907. It in terms suspended the injunction "for 30 days from the date hereof.” Such suspension expired, therefore, on August 19, 1907, over a month before the argument of this appeal. There remains, therefore, only an abstract or academic question for determination. Nothing now stands in the way of the enforcement of the plaintiff's judgment according to its terms. No practical result can be reached by deciding the question, and, following the course usual in such cases, we think we should dismiss the appeal. Fleischman v. Fleischman, 80 Hun, 90, 30 N. Y. Supp. 22; Matter of Woodworth, 64 Hun, 522, 19 N. Y. Supp. 525; People ex rel. Geer v. Com. Council of Troy, 82 N. Y. 579; Matter of Manning, 139 N. Y. 446, 34 N. E. 931.

Appeal dismissed, without costs. All concur.

and 140 New York State Reporter


(Supreme Court, Appellate Division, Second Department. November 22, 1907.) MUNICIPAL CORPORATIONS-OPEN MANHOLES IN STREET-ACTION FOR INJURIES


In action for injuries to a pedestrian by falling into a manhole in the street, held, that plaintiff was negligent and could not recover.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, $$ 1739-1743.]

Appeal from Trial Term, Kings County, Action by Anna M. Wrigley against the city of New York and another. From a judgment for plaintiff, and refusal to grant a new trial, defendants appeal. Reversed, and new trial granted.


James D. Bell, for appellant city of New York.

Frank V. Johnson (Knowlton Durham, on the brief), for appellant Eastern Bermudez Asphalt Paving Company.

James S. Lawson, for respondent.

RICH, J. This action is for damages alleged to have been sustained in consequence of plaintiff falling into an open manhole in Greene avenue, in the borough of Brooklyn; the accident occurring under the following circumstances: An asphalt pavement was being laid in said street by the defendant company under a contract with the defendant city. Greene avenue runs east from Bushwick avenue. On the east side of the latter avenue the distance from the curb line to the fence line is 18 feet, in the middle of which space there is a flag walk 6 feet in width. The balance of the space on each side is dirt. There were two manholes in Greene avenue just east of Bushwick avenue-one 5 feet 8 inches from the curb line of Greene avenue and 17 feet 6 inches from the east curb line of Bushwick avenue. The other (the one in which plaintiff fell) is in about the center of Greene avenue and 16 feet from the east curb line of Bushwick avenue. The defendant company had commenced laying the asphalt surface on the morning of the day on which the accident happened, at the Bushwick avenue end of Greene avenue, and had fully covered the surface of the latter avenue to a point east of the manholes at the time the accident occurred, and was engaged in rolling it with a steam roller. At the time plaintiff was injured the roller had been run into Bushwick avenue for the purpose of raising steam, and was standing still about 20 or 25 feet west of the manhole into which plaintiff fell. It was necessary to remove the manhole covers while the asphalt was being rolled, in order that the roller could come in contact with the asphalt surface next to the manholes, and to prevent the covers being broken they had been removed about a half hour before the accident happened. To give notice to the public that the street was in process of repair, four wooden horses, each 12 feet long, had been placed, two across the head of Greene avenue on a line with the east curb line of Bushwick avenue, and one across the sidewalk on the east side of said avenue on each side of Greene avenue. Each horse had painted on it in letters 4 or 5 inches long the words “Street Closed.”

The plaintiff, at about 11 o'clock in the forenoon of May 29th, was proceeding northerly on the easterly side of Bushwick avenue, and, as she approached Greene avenue, was walking on the dirt between the flag walk and the fence line, about a foot or two from such fence line. As she stepped from the curb down on the asphalt on Greene avenue she heard a loud noise back of her and turned her head to see what it was, and, as she says, “before I walked many steps” she fell into the manhole. Greene avenue is 30 feet wide between curbs. It is apparent, therefore, that from the time she turned her head to ascertain the cause of the noise she walked some 15 feet before she reached the manhole. She had passed one of the horses referred to, which crossed the flag walk entirely and projected 3 feet over the dirt on each side of it. As the distance between the flag walk and the fence line was 6 feet, 3 of which were covered by the horse, the plaintiff, traveling. 1 or 2 feet from the fence line, passed within 1 or 2 feet of the end of the horse, upon which she might have seen the notice that Greene avenue was closed. There was nothing to obstruct her view, and, as she testified, the surface of the street was bright, which attracted her attention some time before she reached it. The manhole, she says, “was a great black opening there in the middle of the street," and "if I had looked down I couldn't help seeing that opening. I could see it. If I looked down, I would have seen it." She saw the roller and the men at work, and the conclusion is irresistible that, had she exercised any care or vigilance in observing where she was going, she would have seen the manhole, and the accident would not have happened. The conditions there required her to exercise a greater degree of care than is required of a pedestrian passing over a street in normal condition. She could not recklessly disregard the precautions which the visible conditions required and proceed as if the street was free and unobstructed.

There is no satisfactory evidence in the case showing plaintiff free from contributory negligence, or that she did anything by way of exercising caution or care in attempting to cross Greene avenue. Had she exercised even an ordinary degree of care, it is difficult to conceive how she could have avoided seeing, not only the visible and actual conditions, including the open manhole, but the precautions taken by placing the lettered horses on each side of the avenue. It cannot be said that a pedestrian who fails to observe such surroundings and carelessly walks into an open manhole in broad daylight is free from negligence contributing to the accident. It is no answer to say that she testified that her attention was attracted from the street by some noise. She was standing within a few feet of four signs announcing that the street was closed, one of which she had just passed that prevented access to Greene avenue over the flag walk. She saw the roller, and men at work a little further on. She knew the street was in process of repair, and her assumption that she could safely walk some 15 feet, under such conditions, giving no attention and 140 New York State Reporter to or even looking to see where she was going or what danger she was walking into, was not warranted and cannot be justified. Ordinary prudence required that, if she was going to look elsewhere than at the obstructed street she was crossing, she should stop while so engaged, and not continue walking while her attention was diverted, Upon the evidence the plaintiff was not entitied to recover, there being no proof sufficient to meet the burden which the law places upon her of being herself free from negligence contributing to her injury, and the defendants' motions, for a nonsuit should have been granted.

For this reason, and without determining whether the evidence is sufficient to establish negligence on the part of the defendants, the judgment and order must be reversed, and a new trial granted; costs to abide the event. All concur.


(Supreme Court, Special Term, New York County. November 20, 1907.) 1. PROCESS-AMENDMENT.

Plaintiff may have correction of the spelling in the papers in the case of the Christian name of F., sued as "Edmond" F., whose correct name is “Edmund" F., and who has answered.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Process, $ 234.] 2. Sane.

Where Arthur B. “Cayce" was sued as Arthur B. “Cracy," and was sought to be held, with other defendants, as a member of the firm of Camman & Co., and on an order of publication being obtained and filed, pursuant to its direction, a copy of the summons, complaint, and order of publication was mailed to Arthur B. "Cracy," at the office of Camman & Co., and it was opened and returned with the inscription on the envelope : "Opened by mistake, but not read. Camman & Co.”—and the directory of the Stock Exchange, of which the company is a member, includes the name of Cayce as a member of the firm, and Cayce does not deny such membership or that he received and opened the envelope, the court will be held to have acquired jurisdiction, so that correction in the name may be made.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 40, Process, $ 234.]

Action by Minnie F. Hirsch, sole executrix of and trustee under the will of Ferdinand Hirsch, deceased, against C. L. Camman and others. Plaintiff moves to correct errors in the spelling of the names of defendants Cayce and Fish. Motion granted.

Quinn, Bostwick & Coleman (George Thomas, of counsel), for plaintiff.

John T. McGovern, for defendants Camman.
Frayer, Stotesbury & Gregg, for defendant Fish.

GIEGERICH, J. This is an application to correct a mistake in spelling in the name of the defendants Cayce and Fish, and under the facts disclosed by the motion papers there is ample authority for granting it. Stuyvesant v. Weill, 167 N. Y. 425, 60 N. E. 738, 53 L. R. X. 562; Holman v. Goslin, 63 App. Div. 204, 71 N. Y. Supp. 197; Boyd v. U. S. Mort. & Trust Co., 94 App. Div. 413, 88 N. Y.

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