corn, so that the claimant's damages proven without contradiction amounted to about $900. The only justification which the Attorney General makes of this reduction of the damages proven from $900 to $300, the amount of the award, is that the court took into consideration that the injury to the potato crop was due in part only to the overflow of the canal, and in part to the hard rain. He asks us to hold as matter of law where the injury to crops is attributable to two causes for one of which the state is liable, and for one of which the state is not liable, that the damage which the state must pay is only proportionate to the injury by waters flowing over land through the negligence of the state. The difficulty with his proposition is that the facts proven in this case do not make applicable the rule. Hard rains do not harm a crop of potatoes as far as any evidence shows, unless they cause the flooding of the land. There is not one particle of evidence that this land was ever flooded except through the overflow of the canal. The record does not present a clear picture of the territory surrounding the land. The only stream which could overflow the land, apart from the canal, would seem to be Wood creek, which is situated about a quarter of a mile east. There is no evidence that that creek has ever risen so high as to flood this land. Between this land and the creek was the railroad. The evidence is wholly to the effect that this creek never overflowed upon this land. The record presents no evidence of any other cause of injury to the claimant's crops than the overflow of the canal. Claimant's evidence as to the extent of damage is corroborated by other witnesses and wholly uncontradicted in the evidence. The verity of claimant's evidence is not attempted to be shaken by cross-examination even. The court of claims has apparently arbitrarily divided the claimant's proven damage by three and given him only one-third thereof. We are asked instead of granting a new trial to ourselves modify. the judgment and give claimant judgment for the sum which the undisputed evidence shows to have been his damage. We are of the opinion that we are without power to grant this request. The power given us by the statute is to affirm, reverse or modify the judgment of the court of claims. The same power is given to this court in review of a judgment of the Supreme Court. Under well-settled authority we would not have this power if this appeal were from a judgment of the Supreme Court for insufficiency of damage. We know of no different rule of interpretation which would give us a greater power on an appeal from a judgment of the court of claims. In Sayre v. State, 123 N. Y. 291, 25 N. E. 163, which has been often cited to us in support of a similar request, the judgment as finally given by the court was in accordance with the findings of the board of claims, whose award was under review. Without a finding by the court of claims as to the extent of the damage, as claimed by claimant to have been caused by defendant's negligence, we are not authorized to make a new finding in accordance with which we may modify this judgment. The judgment should therefore be reversed, with costs, and a new trial granted. All concur. and 132 New York State Reporter MEMORANDUM DECISIONS. pany of New York City. B. H. Ames, for appellant. J. C. Robinson, for respondent. No opinion Judgment and order affirmed, with costs. ABRAMOWITZ et al., Appellants, v. Jadministrator, against the Union Railway ComGRAY, Respondent. (Supreme Court, Appellate Term. April 24, 1906.) Appeal from Municipal Court, Borough of Manhattan, Fourth District. Action by Rachmiel Abramowitz and another against Robert J. Gray. From a judgment for defendant, plaintiffs appeal. Affirmed. Charles Tolleris, for appellants. George T. Hogg, for respondent. SCOTT. P. J. The facts in this case bear no resemblance whatever to those in Weinberg v. Greenberger, 47 Misc. Rep. 117, 93 N .Y. Supp. 530. In that case the money was paid as a deposit on account of a lease to be thereafter made, and it was left quite obscure for what purpose the deposit was given, unless it was as security that the depositor would make the lease in due time. In this aspect it could be considered merely as security for any damage which might accrue from the depositor's failure to execute a lease, and no such damages were proven. As was pointed out in that case, the deposit could not under the terms of the receipt be considered as having been given on account of or as security for the rent which was to constitute the consideration for the lease. In the present case the money paid to defendant and now sued for is recited as having been paid on account of the purchase money for two lots, and the whole evidence shows that the payment was so made, and not merely as security for the making of some future contract. Thus considered. it is clear that the judgment is right, and should be affirmed, with costs. Judgment affirmed, with costs. All concur. In re ABRAMS. (Supreme Court, Appellate Division, Second Department. April 27, 1906.) In the matter of the application of David Abrams Jr., for the appointment of a_committee of the person and property of David Abrams, Sr., an alleged incompetent person. No opinion. Order affirmed, with $10 costs and disbursements. ARCIERI, Respondent, v. LONG ISLAND PER CURIAM. Judgment and order affirmed, with costs. Order filed. MCLAUGHLIN and HOUGHTON, JJ., dis sent. In re ASHHEIM. (Supreme Court, Appellate Division, First Department. April 6 1906.). In the matter of Solomon W. Ashheim No opinion. Motion granted. Settle order on notice. BACK et al., Respondents, v. MULLER, Appellant, et al. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Louis Back and Charles Fredrick as executors, e c., against Rosie Muller and the South Brooklyn Savings Institution. No opinion. Judgment affirmed, with costs. In re BAINBRIDGE'S ESTATE. (Supreme Court, Appellate Division, Second Department March 9, 1906.) In the matter of the estate of Hannah Maria Bainbridge, deceased. No opinlion. Motion granted. Order to be settled before Mr. Justice Woodward. Order BALDWIN, Appellant, v. McGRATH, Respondent, et al. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Ac tion by Clarence D. Baldwin against John J. McGrath, impleaded, etc. L. H. Beers, for appellant. C. F. Brown, for respondent. No opinAHRONS, Respondent, v. CUNEO TRAD-ion. Judgment affirmed, with costs. filed. ING CO., Appellant. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Percy Ahrons against the Guneo Trading Company. D. Flannagan, for appellant. W. E. Cooke, for respondent. No opinion. Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer, on payment of costs in this court and in the court below. Order filed. ALLEN, Respondent, v. UNION RY. CO. OF NEW YORK CITY, Appellant. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by Edward S. Allen, as BAMBACE v. INTERURBAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Joseph Bambace against the Interurban Street Railway Company. No opinion. Motion denied, without costs. Order filed. In re BANISTER'S WILL. (Supreme Court, Appellate Division, Fourth Department. March 14, 1906.) In the matter of probate of the alleged last will and testament of George Banister, deceased. CO., Appellant. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by William Belden against the Oldsmobile Company. C. Andrade, Jr., for appellant. G. W. Coleman, for respondent. PER CURIAM. Judgment and order af firmed, with costs. Order filed. O'BRIEN, P. J., and McLAUGHLIN, J., dissent. BARSON et al.. Respondents, v. MULLIGAN, Appellant. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by Charles H. Barson and another against William G. Mulligan, impleaded, etc. W. G. Mulligan, for appellant. H. A. Forster, BELLINGER, Respondent, v. RICE, Appellant. for respondents. No opinion. Order affirmed, (Supreme Court, Appellate Division, with $10 costs and disbursements. Order filed. tion by Charles J. Bellinger against William Fourth Department. March 14, 1906.) Ac BAUGHEN. Respondent, v. NEW YORK CITY RY. CO., Appellant. (Supreme Court. Appellate Divicion, Second Department. April 27, 1906.) Action by Samuel Baughen against the New York City Railway Company. No opinion. Judgment of the Municipal Court unanimously affirmed with costs. BEAVER, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Lucretia C. Beaver against the Metropolitan Street Railway Company. R. Goeller, for appellant. B. H. Ames, for respondent. PER CURIAM. Judgment affirmed, with costs. Order filed. O'BRIEN, P. J., and PATTERSON, J., dis sent. BEAVER, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Samuel Beaver against the Metropolitan Street Railway Company. R. Goeller, for appellant. B. H. Ames, for respondent. S. Rice. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. Held, that the affidavit upon which the order was granted was insufficient. MCLENNAN, P. J., not voting. BENEDICT, Appellant, v. PINCUS et al. Respondents. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by Julian Benedict against Louis Pincus and another. J. P. McGovern, for appellant. J. W. Weed, for respondents. No opinion. Judgment affirmed, with costs. Order filed. BENNETT, Respondent, v. PACKARD, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 2, 1906.) Action by Matthew W. Bennett against Mark Packard. No opinion. Judgment and order affirmed, with costs. BERKOWITZ, Appellant, v. CHICAGO, M. & ST. P. RY. CO. et al., Respondents. (Supreme Court, Appellate Division, Second Department. April 27, 1906.) Action by David Berkowitz against the Chicago, Milwaukee & St. Paul Railway Company and another. No and 132 New York State Reporter opinion. Judgment of the Municipal Court re- | route, in the borough of Queens. George B. versed as to the defendant the New York Cen- Young, David F. Manning, and William M. tral & Hudson River Railroad Company, Griffith appointed commissioners. and new trial ordered; costs to abide the event. B. F. BOYER CO., Respondent, v. SHAFFER, Appellant. (Supreme Court, Appellate Division, Second Department. April 27 1906.) Action by the B. F. Boyer Company against Isaac Shaffer. No opinion. Judgment of the Municipal Court affirmed by default, with costs. BISHOP et al., Respondents, v. AMERICAN BRIDGE CO. OF NEW YORK, Appellant. (Supreme Court, Appellate Division, Third Department. March 7, 1906.) Action by Nellie Bishop and another, as administrators, etc., against American Bridge Company of New York. PER CURIAM. Judgment and order unanimously aflirmed, with costs. KELLOGG, J., not sitting. In re BRADY'S ESTATE. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) In the matter of the estate of Rosetta Brady, deceased. No opinion. Motion granted, unless appellant serve his proposed case within 10 days and pay $10 costs, in which event the motion is denied. In re BROOKLYN BAR ASS'N. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) In the matter of the applica tion of the Brooklyn Bar Association to punish Benjamin E. Valentine, an attorney. No opinion. Petition granted, and, pursuant to section 67 of the Code of Civil Procedure, Benjamin E. Valentine is hereby disbarred, and his name is stricken from the roll of attorneys and counselors of the Supreme Court of the state of New York. BJERRUM, Respondent, v. SPRINGFIELD BROOKLYN UNION ELEVATED R. CO., BREWERIES CO., Appellant. (Supreme Court, Respondent, V. CITY OF NEW YORK, Appellate Division, Second Department. April Appellant. (Supreme Court, Appellate Divi20, 1906.) Action by Ernest A. T. Bjerrum sion, Second Department. April 27, 1906.) Acagainst the Springfield Breweries Company. Notion by the Brooklyn Union Elevated Railroad opinion. Judgment and order affirmed, with Company against the city of New York. No opinion. Judgment and orders affirmed, with costs. costs. BLANCK, Respondent, v. PRESTON, Appellant. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Mary Ann Blanck against Charles M. Preston, as receiver of the New York Building Loan Banking Company. No opinion. Motion for reargument granted, and case set down for Monday, May 7, 1906.) In re BOARD OF RAPID TRANSIT R. COM'RS FOR CITY OF NEW YORK. (Supreme Court Appellate Division, Second Department. April 20 1906.) In the matter of the application of the board of rapid transit railroad commissioners for the city of New York for the appointment of three commissioners, etc.; Fourth Avenue route. Abraham Abraham, George B. Abbott, and Norman S. Dike appointed commissioners. In re BOARD OF RAPID TRANSIT R. BROWN, Respondent, V. NEW YORK CENT. & II. R. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 7, 1906.) Action by Joseph Brown against the New York Central & Hudson River Railroad Company. PER CURIAM. Judgment and order affirmed, with costs. WILLIAMS and NASH, JJ., dissent. BUEL, Appellant, v. BROOKLYN HEIGHTS R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. March 9, 1906.) Action by Ida Buel against the Brooklyn Heights Railroad Company. No opinion. Order setting aside verdict and granting new trial affirmed, with costs. CANONICO v. CUNARD S. S. CO. (Supreme Court, Appellate Division, First Department. April 25, 1906.) Action by Errico Canonico against the Cunard Steamship Company. No opinion. Application denied, with $10 costs. Order signed. BUSKIST, Respondent, v. WAIT, Appellant. COM'RS FOR CITY OF NEW YORK. (Su-(Supreme Court, Appellate Division, Fourth De preme Court, Appellate Division, Second Department. March 14, 1906.) Action by Charles partment. April 20, 1906.) In the matter of J. Buskist against Orrin Wait. No opinion. the application of the board of rapid transit Judgment and order affirmed, with costs. railroad commissioners for the city of New York for the appointment of three commissioners, etc.; Brooklyn and Manhattan loop lines, Brooklyn route. Henry B. Ketcham, Edward S. Fowler, and Rudolph Block appointed commissioners. In re BOARD TRANSIT OF RAPID R. COM'RS FOR CITY OF NEW YORK. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) In the matter of the application of the board of rapid transit railroad commissioners for the city of New York for the appointment of three commissioners to determine and report, etc.; Thirty-Fourth Street CARROLL v. LONG ISLAND R. CO. et al. (Supreme Court, Appellate Division, Second Department. March 9, 1906.) Action by Margaret Carroll against the Long Island Railroad Company and another. No opinion. Judgment modified, by striking out the provision for an extra allowance, and judgment, as modified, and pellate Division, Second Department. March order, unanimously affirmed, with costs. 9, 1906.) Action by Oliver H. Clark against the General Chemical Company. No opinion. Judgment and order unanimously affirmed, with costs. CENTURY MERCANTILE CO., Respondent, v. HEERAN, Sheriff, Appellant. (Action No. 2). (Supreme Court, Appellate Division, Third Department. May 2, 1906.) Action by the Century Mercantile Company against Matthew A. Heeran, late sheriff of Rensselaer county. PER CURIAM. Interlocutory judgment affirmed, with costs, with usual leave to defendant to withdraw demurrer and answer, upon payment of costs of demurrer and of this appeal. CHESTER, J., dissents. PARKER, P. J., not voting. CHAPMAN, Respondent, v. DELAWARE, L. & W. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. May 2, 1906.) Action by Olive Chapman against the Delaware, Lackawanna & Western Railroad Company. No opinion. Judgment and order affirmed, with costs. CHEEVER, Respondent, v. NEW YORK TRANSP. CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Hattie Cheever against the New York Transportation Company. No opinion. Judgment and order unanimously affirmed, with costs. CHRISTIE, Appellant, v. MILLER et al., Respondents. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by David Christie against Henry F. Miller and another. P. Mitchell, for appellant. D. B. Ogden, for respondents. No opinion. ment affirmed, with costs. Order filed. Judg CLARK, Respondent, v. LYNCH et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May 2, 1906.) Action by Charles E. Clark against Michael Lynch and another. No opinion. Motion for reargument denied, with $10 costs and disbursements. COATSWORTH, Appellant, v. LEHIGH VALLEY R. CO. et al., Respondents. (two cases.) (Supreme Court, Appellate Division, Fourth Department. March 7, 1906.) Action by Reuben H. Coatsworth against the Lehigh Valley Railroad Company, and another. No opinion. The four justices qualified to sit in the hearing and determination of the appeals in the above cases being equally divided, the said appeals are ordered transferred to the Third Judicial Department for hearing and determination, pursuant to the provision of section 231 of the Code of Civil Procedure. in same case, reported 98 App. Div. 349, SPRING, J., dissents. Kruse, J., not sitting. PER CURIAM. Judgment and order affirmIn re CITIZENS' TRUST CO. OF BROOK-ed, with costs, on opinion of McLennan, P. J., LYN. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) In the 90 N. Y. Supp. 264. matter of the application of the Citizens' Trust Company of Brooklyn to be designated as a depositary for court funds. No opinion. Report of the referee confirmed, prayer of the petitioner granted, and order signed. CONLON, Respondent, v. CITY OF NEW In re CITY COLLEGE SITE. In re BERNHARDT. (Supreme Court, Appellate Division, First Department. April 6, 1906.) In the matter of the City College site. In the mat-ed ter of Bernhardt. T. Connoly, for City College site. J. S. Frank, for Bernhardt. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. CONNELL, Respondent, v. CONNELL, Appellant. (Supreme Court, Appellate Division, Second Department. April 20. 1906.) Action by Mary E. Connell against William F. Connell. No opinion. Order affirmed, with $10 costs and disbursements. In re CITY COLLEGE SITE. In re PINKNEY. (Supreme Court, Appellate Division, First Department. April 6, 1906.) In the matter of the City College site. In the matter of Pinkney. T. Connoly, for City College site. J. S. Frank, for Pinkney. No opinion. Order spondents. (Supreme Court, Appellate DiviCONROY, Appellant, v. ACKEN et al., Reaffirmed, with $10 costs and disbursements.sion, Second Department. Order filed. April 20, 1906.) Action by Bridget Conroy, as administratrix, etc., of Michael Conroy, deceased, against Samuel I. Acken and others. No opinion. Motion to amend order granted. CLARK, Respondent, v. GENERAL CHEMICAL CO., Appellant. (Supreme Court, Ap |