[2] The respondent contends, however, that if the notes were not assessable to the petitioners as owners the tax was valid under clause 7 of St. 1909, c. 490, pt. 1, § 23, which provides that personal property of deceased persons shall be assessed to the executor or administrator for three years or until it has been distributed and notice of such distribution has been given to the assessors. See Welch v. Boston, 211 Mass. 178, 97 N. E. 893. In our opinion the facts do not bring the case at bar within the letter or spirit of that statute. Its language and history indicate that the purpose of the Legislature in allowing the assessors to tax an executor on property that has been distributed by him, if he has failed to give notice of such distribution, is to secure a full disclosure of the facts. See Vaughan v. Street Com'rs, 154 Mass. 143, 28 N. E. 144. Here the petitioners never had the ownership or possession of the notes, nor control of their distribution; in fact had no official means of knowing their value on April 1st, or when or to whom they would be distributed by the ancillary administrator who had exclusive charge of them. It is not necessary to consider what title, if any, the executors had before the appointment of the ancillary administrator, or whether the notes were properly included in their inventory and in the list of property of the estate taxable to them in 1909. Any and all right they may have had in the notes was extinguished on the appointment of such administrator, not by any distribution, but by operation of law without the consent or co-operation of the petitioners. There is no suggestion of collusion. Notice to the assessors of the ap

of the ancillary administrator in Pennsyl- | transmit such funds to the domiciliary exevania; and as he was duly appointed under utor or to order him to distribute them dithe authority and jurisdiction of the state rectly to the legatees or next of kin." where the property was found, and the notes came to his hands by virtue of such appointment, he acquired the full and exclusive title to them, under the long-established rule of the common law. Stevens v. Gaylord, 11 Mass. 256; Putnam v. Middleborough, 209 Mass. 456, 95 N. E. 749. He was in no sense the agent of the executors here. His authority was independent and exclusive within the jurisdiction of his appointment. Low v. Bartlett, 8 Allen, 259; Merrill v. New England Ins. Co., 103 Mass. 245, 249, 4 Am. Rep. 548. The petitioners had no right to demand from him the notes, or even the balance of the proceeds thereof after the payment of local creditors. It rested in the discretion of the orphans' court to order him either to transmit such balance to the executors or to distribute it directly to legatees. Norton v. Palmer, 7 Cush. 523; Welch v. Adams, 152 Mass. 74, 25 N. E. 34, 9 L. R. A. 244; Putnam v. Middleborough, 209 Mass. 456, 95 N. E. 749. It appears by the following extracts from the agreed facts that such also was the law in Pennsylvania: "No executor or administrator not appointed as such by a court of Pennsylvania could legally discharge, release or assign any mortgage of lands in Pennsylvania, the mortgage title to which was in his testator at his testator's death, nor sue in Pennsylvania on any notes or debts owned by said testator at his death; and if there was an executor or administrator appointed by court of Pennsylvania no other executor could lawfully demand or receive payment of principal or interest from any debtor, resident in Pennsylvania, of the estate of such decedent, or give a valid release or discharge to such debtor, or law-pointment of the ancillary administrator was fully intermeddle with any property of such estate within the jurisdiction of the state of Pennsylvania." "Every administrator must give bond with sureties to perform his duties as administrator; and an administrator there appointed cannot be compelled to distribute or pay over the funds of the estate collected by him within less than one year from the date of his appointment; nor can he do so except at the risk of himself and of the sureties on his probate bond." "An ancillary administrator, after the expiration of one year as aforesaid, is not obliged to remit the net funds of the estate to the domiciliary executor or administrator; but it rests in the discretion of the court by which he was appointed either to order him to

given by the executors when they duly filed their sworn list of the property of the estate in their hands on April 1, 1910. The petitioners even requested the ancillary administrator to pay the funds to them as soon as he could collect them, but he declined to part with the funds until he had settled his account in the Pennsylvania court, especially for the reason that the surety on his bond refused to allow him to pay over sooner.

On the facts agreed upon we are of opinion that the petitioners were not taxable on the notes in question for the year 1910, and that the tax assessed by the town of Lenox and the interest and other charges thereon should be abated; and it is Ordered accordingly.

MEMORANDUM DECISIONS

AINSWORTH, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Court of Appeals of New York. May 23, 1913.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (151 App. Div. 332, 135 N. Y. Supp. 474) entered June 5, 1912, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant, his employer. William L. Visscher, of Albany, for appellant. Richard O. Bassett, of Albany, for respondent.

PER CURIAM. Order affirmed, and judgment absolute ordered against appellant on the stipulation, with costs in all courts.

CULLEN, C. J., and WERNER, CUDDEBACK, and MILLER, JJ., concur. GRAY, HISCOCK, and COLLIN, JJ., dissent.

BELLO, Appellant, v. WILLEY, Respondent. (Court of Appeals of New York. May 13, 1913.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (151 App. Div. 905, 135 N. Y. Supp. 1077), entered May 14, 1912, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover

for the death of plaintiff's intestate alleged to
have been occasioned through the negligence of
defendant, his employer. James A. Leary, of
Saratoga Springs, for appellant. H. D. Wright,
of Gloversville, for respondent.
PER CURIAM.
costs.

Judgment affirmed, with

CULLEN, C. J., and WERNER, WILLARD BARTLETT, HISCOCK, CHASE, COLLIN, and HOGAN, JJ., concur.

BONITO, Respondent, v. H. E. TAYLOR & CO., Appellant. (Court of Appeals of New York. April 29, 1913.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (150 App. Div. 917, 135 N. Y. Supp. 742), entered June 7, 1912, upon an order which reversed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and granting a new trial in an action to recover for the death

of plaintiff's intestate alleged to have been occasioned through the negligence of defendant. Herrick C. Allen, of New York City, for appellant. Isidor J. Kresel, William Travers Jerome, and George F. Lewis, all of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and WILLARD BARTLETT, HISCOCK, CHASE, CUDDEBACK, HOGAN, and MILLER, JJ., concur.

BORNSTEIN, Respondent, v. FADEN et al., Appellants. (Court of Appeals of New York. May 6, 1913.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (149 App. Div. 37, 133 N. Y. Supp. 608), entered February 2, 1912, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the defendants' negligence in failing to keep the hallway of a tenement house lighted. Walter G. Evans, of Rome, for appel

respondent.

PER CURIAM. Order affirmed, and judgment absolute ordered against appellants on the stipulation, with costs in all courts.

CULLEN, C. J., and GRAY, WERNER, HISCOCK, COLLIN and CUDDEBACK, JJ., concur. MILLER, J., not sitting.

In re BENSEL et al., Board of Water Sup-lants. Louis B. Boudin, of New York City, for ply. (Court of Appeals of New York. June 20, 1913.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (139 N. Y. Supp. 1116), entered January 24, 1913, which affirmed an order of Special Term confirming the report of commissioners of appraisal in condemnation proceedings. Archibald R. Watson, Corp. Counsel, of New York City (I. J. Beaudrias, of Yonkers, of counsel), for appellant. Woodson R. Oglesby, of New York City, for respondent. PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and GRAY, WILLARD BARTLETT, HISCOCK, CHASE, HOGAN, and MILLER, JJ., concur.

CALKINS, Respondent, v. TOWN OF CAMDEN, Appellant. (Court of Appeals of New of the Appellate Division of the Supreme Court York. May 23, 1913.) Appeal from a judgment in the Fourth Judicial Department (152 App. Div. 953, 137 N. Y. Supp. 1113), entered November 1, 1912, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant in failing to properly maintain and protect its highways. Albert T. Wilkinson, of Utica, for appellant. P. C. Dugan, of Albany, for respondent.

In re BERRY'S WILL. (Court of Appeals of New York. June 20, 1913.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (154 App. Div. 509, 139 N. Y. Supp. 186), entered January 10, 1913, which reversed a dePER CURIAM. Judgment affirmed, with cree of of the New York County Surrogate's costs. Court in so far as it declared invalid the tenth WERNER, WILLARD BARTLETT, HISclause. of will of Inslee H. Berry, deceased. COCK, CHASE, and HOGAN, JJ., concur.

Appellant. (Court of Appeals of New York. CARUSO, Respondent, v. TROY GAS CO., April 29, 1913.) Appeal, by permission, from Appellant. (Court of Appeals of New York. an order of the Appellate Division of the SuJune 10, 1913.) Appeal from a judgment, en- preme Court in the First Judicial Department tered November 15, 1912, upon an order of the (154 App. Div. 83, 138 N. Y. Supp. 738), enAppellate Division of the Supreme Court in tered December 6, 1912, which affirmed an inthe Third Judicial Department (153 App. Div. terlocutory judgment of Special Term sustain431, 138 N. Y. Supp. 279), which reversed an ing a demurrer to the answer in an action for order of the court at a Trial Term setting aside conversion. The following question was cera verdict in favor of plaintiff and granting a tified: "Is the second separate defense in the new trial and reinstated said verdict in an ac- defendant's amended answer, verified January tion to recover for the death of plaintiff's in- 19, 1912, sufficient in law upon the face theretestate alleged to have been occasioned through of?" Harry Percy David, of Brooklyn, for apthe negligence of defendant. H. D. Bailey, of pellant. H. D. Bailey, of pellant. Cuthbert W. Jewell and R. B. HonTroy, for appellant. John F. Murray, of Troy, eyman, both of New York City, for respondent. and Andrew J. Nellis, of Albany, for respond- PER CURIAM. Order affirmed, with costs, and question certified answered in the negative. CULLEN, C. J., and GRAY, WERNER, HISCOCK, COLLIN, and CUDDEBACK, JJ., concur. MILLER, J., not sitting.

ent.

PER CURIAM. Judgment affirmed, with costs, on the ground that the evidence was sufficient to justify the finding of the jury that the defendant maintained a nuisance.

GRAY, WILLARD BARTLETT, CHASE, CUDDEBACK, HOGAN, and MILLER, JJ., concur. CULLEN, C. J., absent.

CAULDWELL, Appellant, v. PRENDERGAST, City Comptroller, Respondent. (Court of Appeals of New York. June 20, 1913.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (141 N. Y. Supp. 734), entered May 19, 1913, which reversed so much of an order of Special Term as granted a motion for a peremptory writ of mandamus to compel defendant to pay to the petitioner a certain sum as interest upon an award made by the so-called change of grade damage commission and affirmed so much of said order as denied interest on the sum claimed. Barclay E. V. McCarty and John M. Harrington, both of New York City, for appellant. Archibald R. Watson, Corp. Counsel (Terence Farley and Charles J. Nehrbas, both of New York City, of counsel), for respond

ent.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and GRAY, WILLARD BARTLETT, HISCOCK, CHASE, HOGAN, and MILLER, JJ., concur.

In re CITY OF NEW YORK. In re MITCHELL et al., Town Assessors. (Court of Appeals of New York. May 6, 1913.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (154 App. Div. 903, 138 N. Y. Supp. 1111), entered December 13, 1912, which affirmed an order of Special Term denying a motion to set aside certain executions and to cancel and strike from the records certain judgments. The principal question at issue was as to whether costs awarded in a proceeding to review assess ments carry interest from the date the order is enrolled. Archibald R. Watson, Corp. Counsel, of New York City (I. J. Beaudrias, of Yonkers, of counsel), for appellant. J. Addison Young, of New York City, and William S. Beers, of New Rochelle, for respondents.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and GRAY, WERNER, HISCOCK, COLLIN, CUDDEBACK, and MILLER, JJ., concur.

In re CITY OF ROCHESTER. (Court of
Appeals of New York. June 17, 1913.)
PER CURIAM. Motion for reargument de-
nied, with $10 costs. See 208 N. Y. 188, 101
N. E. 875.

V.

COLWELL LEAD CO., Respondent,

COVEY, Respondent, v. BOSTON & M. R. R., Appellant. (Court of Appeals of New York. May 13, 1913.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (147 App. Div. 926, 131 N. Y. Supp. 1109), entered November 17, 1911, affirming a judgment in favor of plaintiff's intestate entered upon a verdict in an action to recover damages caused by a fire alleged to have been negligently started by defendant on its own lands and to have spread therefrom onto lands of plaintiff's intestate destroying his buildings and their contents. Jarvis P. O'Brien, of Troy, for appellant. John B. Holmes, of Troy, for respondent. PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and WERNER, WILLARD BARTLETT, HISCOCK, CHASE, COLLIN, and HOGAN, JJ., concur.

COWELL, Respondent, V. SAPERSTON, Appellant, et al. (Court of Appeals of New York. May 20, 1913). Appeal from a judg ment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (149 App. Div. 373, 134 N. Y. Supp. 284), entered March 8, 1912, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned by the negligence of defendant in operating an automobile. Clinton B. Gibbs, of Buffalo, for appellant. Joseph A. Wechter and Andrew B. Gilfillan, both of Buffalo, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and WERNER, HISCOCK, CHASE, and COLLIN, JJ., concur. HOGAN, J., not voting. WILLARD BARTLETT, J., absent.

CRAMP v. DADY et al. (Court of Appeals of New York. May 6, 1913.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Second JuY. Supp. 1116), entered October 25, 1912, which dicial Department (152 App. Div. 937, 137 N. denied a motion for a new trial made upon a case and exceptions, under section 1001 of the Code of Civil Procedure, after the entry of a judgment in an action of partition determining the rights of the various parties to the action. The following question was certified: "Has the Appellate Division of the Supreme Court jurisdiction to review the judgment of the County Court of Queens county, made and entered in this action on the 26th day of February, 1912, upon a motion for a new trial made upon exceptions, pursuant to the provi

cedure by the defendants Benjamin Bedell and [ as modified, affirmed, without costs in this others?" Harry W. Moore, of Mineola, and Wilmot L. Morehouse, of Brooklyn, for appellants. Edward L. Frost, of Brooklyn, and C. Lansing Hays, of New York City, for respondents.

Edmund F. Driggs, of Brooklyn, for respond- | 133 N. Y. Supp. 159), overruling defendant's

ents.

PER CURIAM. Judgment affirmed, with
costs, on opinion of Carr, J., below.
CULLEN, C. J., and GRAY, WILLARD
BARTLETT, CHASE, CUDDEBACK, HO-
GAN, and MILLER, JJ., concur.

exceptions ordered to be heard in the first instance by the Appellate Division, denying a motion for a new trial and directing judgment in favor of plaintiffs upon the verdict directed by the trial court. Howard Humiston, of New York City, for appellant. Daniel P. Hays and Beno B. Gattell, both of New York City, for respondents.

PER CURIAM. Judgment affirmed, with

CULLEN, C. J., and WERNER, WILLARD BARTLETT, HISCOCK, CHASE, COLLIN, and HOGAN, JJ., concur.

EICHHOLZ v. POLACK et al. (Court of Appeals of New York. June 3, 1913.) Cross-costs. appeals from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (140 App. Div. 551, 125 N. Y. Supp. 1108), entered December 19, 1910, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to set aside an alleged fraudulent transfer. Nathan D. Stern and Julius J. Michael, both of New York City, for plaintiff. Dean Emery and Frederic R. Kellogg, both of New York City, for defendants.

PER CURIAM. Judgment of the Appellate Division, so far as it modified the judgment of the Special Term, reversed, and the judgment of the Special Term in all things affirmed, with costs to plaintiff in both courts.

CULLEN, C. J., and GRAY, CHASE, CUDDEBACK, and HOGAN, JJ., concur. WILLARD BARTLETT, J., not voting. MILLER, J., not sitting.

In re EINSTEIN et al. (Court of Appeals of New York. April 29, 1913.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (150 App. Div. 856, 135 N. Y. Supp. 227), entered May 9, 1912, which reversed so much of an order of Special Term as directed payment of awards in street opening proceedings, with interest from the date of the commissioners' report to six months after confirmation. Merle I. St. John, of New York City, for appellants. Archibald R. Watson, Corp. Counsel, of New York City (Joel J. Squier and George E. Draper, both of New York City, of counsel), for respondent.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and GRAY, WERNER, HISCOCK, COLLIN, CUDDEBACK, and MILLER, JJ., concur.

EMMET et al. v. RUNYON et al. (Court of Appeals of New York. June 3, 1913.) Appeal from a judgment of the Appellate Division_of the Supreme Court in the Second Judicial Department (151 App. Div. 888, 135 N. Y. Supp. 1110), entered June 11, 1912, which affirmed a judgment of Special Term finally settling the accounts of William T. Emmet et al., as substituted trustees of trusts created by the will of Benjamin H. Lillie, deceased. See, also, 100 N. E. 1127. Robert A. B. Dayton, of New York City, for appellant. Maurice Dillon, of Port Chester, for respondents Emmet and others. John H. Stoutenburgh, William W. Bliven, and Louis Hanneman, all of New York City, for respondents Runyon and others.

PER CURIAM. Judgment affirmed, with costs to all parties appearing in this court and filing briefs, payable out of the fund.

CULLEN, C. J., and WERNER, WILLARD BARTLETT, HISCOCK, CHASE, COLLIN, and HOGAN, JJ., concur.

ERNST et al., Respondents, v. DETTMER, Appellant. (Court of Appeals of New York. June 3, 1913.) Appeal from a judgment entered January 9, 1912, upon an order of the Appellate Division of the Supreme Court in the

FAMBORILLE, Respondent, v. ATLANTIC, GULF & PACIFIC CO., Appellant. (Court of Appeals of New York. June 20, 1913.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (155 App. Div. 833, 140 N. Y. Supp. 529), entered March 6, 1913, upon an order which reversed an order of the trial court granting a motion to set aside a verdict in favor of plaintiff and for a new trial, and reinstated the said verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant. The motion was made upon the grounds that the decision of the Appellate Division was unanimous, that permission to appeal had not been obtained, and that the exceptions were frivolous. Walter A. Fullerton, of Saratoga Springs, for the motion. Charles Irving Oliver, of Albany, opposed. PER CURIAM. Motion denied, with $10 costs.

In re FARLEY, State Excise Com'r. (Court of Appeals of New York. April 29, 1913.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (154 App. Div. 282, 138 N. Y. Supp. 1050), entered January 7, 1913, which affirmed an order of Special Term revoking and canceland Arthur Rowland, both of Yonkers, for aping a liquor tax certificate. F. X. Donoghue City, Morton C. Fitch, and Charles Firestone, pellant. Frederick E. Grant, of New York of New York City, for respondent.

PER CURIAM. Order affirmed, with costs, on opinion of Burr, J., below.

CULLEN, C. J., and GRAY, WERNER, HISCOCK, COLLIN, CUDDEBACK, and MILLER, JJ., concur.

SCHERNO' et al., Appellants. (Court of Ap-
FARLEY, State Excise Com'r, Respondent, v.
SCHERNO et al., Appellants.
peals of New York. June 10, 1913.)
PER CURIAM. Motion for reargument de-
nied, with $10 costs. See 208 N. Y. 269, 101
N. E. 891.

(Court

FINK et al. v. LAMPHERE et al. of Appeals of New York. May 13, 1913.) Appeal from a judgment of the Appellate Division of the Supreme Court of the Fourth Judicial Department (152 App. Div. 391, 136 N. Y. Supp. 914), entered July 20, 1912, which affirmed a judgment entered upon a decision of the court on trial at Special Term 'dismissing the plaintiff's complaint, directing the cancellation of the bond and mortgage sought to be foreclosed, ordering canceled the deed given by the plaintiffs to the defendant Canadaway Fertilizer Company in May, 1907, requiring the plaintiffs to pay back to the defendant receiver substantially $9,500, and to further pay a second mortgage of $2,000 and interest placed on the property by the defendant Canadaway Fer