primary receivership continues in Delaware, claimants may prove their claims there. They cannot be compelled to do so here. Even if it be assumed that at some time in the future the Delaware receivership will be vacated, of which no real prospect appears, the situation would be no different. In such event the ancillary receivership would fall too. The corporation would then resume function, and, being of Delaware birth, it could be sued in the courts of that state by such creditors as might prefer that forum. It follows, therefore, that on no conceivable theory can distribution of the corporation's assets be made without recognizing the validity of claims found to exist by the courts of that state. Their judgments would be entitled to full faith and credit here. It must be manifest that nothing can be gained by continuing a retention of the funds even if that could legally be accomplished.

In the circumstances, the motion is granted. Order signed.

JOLLY v. KELLY.

Supreme Court, Appellate Division, Second Department. March 21, 1928. Negligence 56(1)—Failure to provide guard held not proximate cause of injury to plaintiff, appreciating danger when stepping on platform without giving available signal.

Where plaintiff, when taking position on platform, appreciated danger involved, and assumed position after observing conditions and without notice to defendant's signalman or engineer, though such signal might have been given readily, defendant's failure to provide guard between top of elevator and platform was not proximate cause of accident; purpose of guard being to protect those ignorant of danger or seeking to enter through inadvertence.

Carswell, J., dissenting.

Action by John Jolly against George T. Kelly. Judgment for plaintiff, and defendant appeals. Reversed, and complaint dismissed. Argued before LAZANSKY, P. J., and KAPPER, HAGARTY, SEEGER, and CARSWELL, JJ.

PER CURIAM. Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. Plaintiff appreciat

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1

(227 N.Y.S.)

ed the danger when he took a position upon the platform which resulted in a part of his body protruding into the hoist shaft. He had watched the hoist for several minutes before the accident to determine for himself whether or not it was about to rise. He assumed his position without notice to the defendant's signalman or the engineer, although it appears from the testimony that such a signal might have been given readily. Defendant's failure to provide a guard between the top of the elevator and the platform was not the proximate cause of the accident, since the purpose of a guard is to protect those ignorant of the danger, or seeking to enter through inadvertence. Lynch v. Elektron Mfg. Co., 195 N. Y. 171, 88 N. E. 48; Andersen v. Thompson-Starrett Co., 153 App. Div. 740, 138 N. Y. S. 762; Kolacki v. American Sugar Refining Co., 173 App. Div. 942, 158 N. Y. S. 559.

In view of this disposition of the case, the appeal from the order denying defendant's motion for a new trial is dismissed.

LAZANSKY, P. J., and KAPPER, HAGARTY, and SEEGER, JJ., concur.

CARSWELL, J., dissents.

O'BRIEN v. RENISON et al.

Supreme Court, Appellate Division, Second Department. March 21, 1928. Pleading 362(2)—Recital in answer that denials of first defense are repeated should be stricken out under rule precluding further denial of facts once denied (Rules of Civil Practice, rule 90).

Under Rules of Civil Practice, rule 90, providing that facts once denied shall be deemed denied for all purposes of pleading, portions of answer reciting, "repeating all the denials of her first defense hereinbefore set forth," should be stricken out.

Action by Thomas E. O'Brien against Bertha Anna Renison and others. From an order denying plaintiff's motion to strike out certain portions of the answer of defendant named and for judgment. on the pleadings as against said defendant, plaintiff appeals. Modified and affirmed.

Argued before LAZANSKY, P. J., and RICH, HAGARTY, SEEGER, and CARSWELL, JJ.

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PER CURIAM. Order denying plaintiff's motion to strike out certain portions of defendant Renison's answer, and for judgment on the pleadings as against said defendant, modified by striking from the first separate defense the words, "repeating all the denials of her first defense hereinbefore set forth," and by striking from the second separate defense the words, "repeating herein all the denials of her first defense hereinbefore set forth, and." As so modified, the order is affirmed, without costs. Facts once denied shall be deemed denied for all purposes of pleading. Rule 90, Rules of Civil Practice.

ERIT REALTY CORPORATION V. SEA GATE ASS’N.

Supreme Court, Appellate Division, Second Department. March 5, 1928. 1. Easements 61(10)-Realty company could not enforce unrestricted easement over streets of residential park, but could use streets as restricted and recover damages.

In suit by realty company claiming unrestricted easement over streets of adjoining private residence park to enjoin park association from maintaining fence across streets leading into park and restricting free use of streets to owners of property in park, realty company was entitled to use of streets as other owners in residential park, either by extending fence to include its property or maintaining fence as built, plus damages based on difference in value of realty company's property with unlimited use of streets and use as limited, but not to unrestricted use of streets in park which would destroy residential section. 2. Easements ~61(2)—Equity will not grant entire relief by injunction where benefit to plaintiff is insignificant compared to defendant's loss.

Where benefit to plaintiff claiming unrestricted easement over streets of private residential park and seeking to enjoin restriction on use of streets would be insignificant compared to loss to residential park by unrestricted use of streets, equity will not grant all relief sought.

Action by the Erit Realty Corporation against the Sea Gate Association. Judgment for plaintiff, and defendant appeals. Reversed with directions.

Argued before LAZANSKY, P. J., and RICH, YOUNG, KAPPER, and SEEGER, JJ.

Meier Steinbrink, of Brooklyn, for appellant.

Harry L. Kreeger, of New York City, for respondent.

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(227 N.Y.S.)

PER CURIAM. Judgment reversed upon the law and the facts, without costs, and judgment directed as follows: (1) Plaintiff may file a stipulation within twenty days that the fence or barrier about the Sea Gate property shall be restored so as to include within it plaintiff's property; then plaintiff and all holding through or under it may hold and maintain their property and shall have the right of admission to and use of the streets in Sea Gate, under reasonable. rules and regulations of the Sea Gate Association, the same as owners of property subject to such regulations, and defendant will be restrained from interfering with such use and maintenance. (2) In the event that plaintiff fails to file such stipulation, then defendant will be restrained from interfering with the use of the streets of Sea Gate by plaintiff, and those holding through or under it, in the same manner and to the same extent as owners of Sea Gate property use them, under reasonable rules and regulations of the association, the fence or barriers to remain as now constructed. In either event, the cause is remitted to trial term for the assessment of plaintiff's damages, if any-the difference in value of plaintiff's property with an unlimited use of said streets, and the use under one of the foregoing limitations, as the case may be. The plaintiff should have judgment for such amount.

[1,2] While we are in accord with the views of the learned trial court as to the legal rights of the parties, we are of the opinion that it would be inequitable to give plaintiff the relief afforded by the judgment from which the appeal is taken. The development of Sea Gate as a private residential section has been going on for a period of thirty years. It was begun by the Norton Point Land Company, of which plaintiff's immediate predecessor in title was at one time president. He was thoroughly acquainted with the conditions as they were under that company and as they have been under the defendant. True, he has saved his legal rights and thus those of the plaintiff. The effect of the injunction as granted is to destroy this residential section. Many thousands of dollars have been expended upon the basis of it, and investments for homes have been made because of it. The benefit to the plaintiff through the enforcement of its rights would be insignificant, compared to the loss to the defendant and others. In such case, equity should not give all the relief sought. McClure v. Leaycraft, 183 N. Y. 36, 41, 75 N. E. 961, 5 Ann. Cas. 45; 32 Corpus Juris, p. 77. Under the relief proposed by this court, plaintiff may have the use of the streets as other owners in Sea Gate,

and such damages as may flow from the limitation of its easement, while defendant and those associated with it will not lose the benefit of their community proposition. Settle order on notice.

(223 App. Div. 155)

FIRST NAT. BANK OF BRIDGEPORT, CONN., v. BLACKMAN et al. Supreme Court, Appellate Division, First Department. March 23, 1928. 1. Bills and notes 167-Right to rely on warehouse receipts securing notes to warehouse held not limitation of absolute promise to pay in notes.

Where defendant gave notes to warehouse company for loan secured by warehouse receipts on goods stored in warehouse, right to rely on warehouse receipts was entirely at option of person seeking to avail himself thereof and was in addition to and not limitation or derogation of absolute promise to pay contained in notes.

2. Principal and agent 119 (5)—Where plaintiff held defendant's notes to warehouse as security, defendant must show warehouse's authority express or implied to receive payment.

Where defendant executed negotiable notes to warehouse secured by warehouse receipts, which notes were transferred to trustee for plaintiff bank as security for plaintiff's loan to warehouse, plaintiff would not be bound by payment of notes to warehouse unless defendants could establish fact that authority had been granted expressly or impliedly by plaintiff to warehouse to receive payment on plaintiff's behalf.

3. Customs and usages ~17—Custom showing bank holding defendants' notes to warehouse authorized warehouse to receive payment and to estop bank from denying authority of warehouse was improperly excluded.

In action on notes executed by defendant to warehouse and transferred to trustee for plaintiff bank as security for loan to warehouse, evidence of trade custom in warehouse business of depositing merchandise with the warehouse, obtaining loans from warehouse, payment of loans, and withdrawal of proportionate share of collateral at time of corresponding payment, offered to show express or implied authority by bank to warehouse to receive payment on notes for its benefit, was improperly excluded, since custom, if proved, would estop plaintiff bank from denying that warehouse company accepted payment from defendants with its express or implied consent and would bind plaintiff by payment to warehouse.

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