
    (110 App. Div. 867)
    GENET v. PRESIDENT, ETC., OF DELAWARE & H. CANAL CO.
    (Supreme Court, Appellate Division, First Department.
    December 15, 1905.)
    Appeal from Special Term, New York County.
    Action by Augusta G. Genet against the president, managers, and company of the Delaware & Hudson Canal Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Argued before O’BRIEN, P. J., and McEAUGHLIN, INGRAHAM, LAUGHLIN, and HOUGHTON, JJ.
    Erank E. Smith, for appellant.
    Gould & Wilkie, for appellee.
   PER CURIAM.

Judgment affirmed, with costs, on opinion in 71 App. Div. 613, 75 N. Y. Supp. 553.

O’BRIEN, P. J. (dissenting).

The referee has charged the defendant with the total amount of the coal taken from the mine and credited it with the amount paid thereon, rendering judgment for the balance. It appears, however, that 28 per cent, of the culm heap was rock and bone. I do not think that the plaintiff should be allowed to recover for this foreign substance. It is not coal, nor is it any material which, under the terms of the contract, the defendant was to pay for. There is nothing so far as I have been able to ascertain, either in our own former decisions or in those of the Court of Appeals, in this long litigation, which determines that the plaintiff, in addition to recovering for the coal actually taken from the mine, is entitled also to recover for rock and bone; and my conclusion, therefore, is that to the extent that payment for rock and bone was included in the amount allowed by the referee, the judgment is wrong, and should be modified by deducting that sum, and, as so modified, affirmed.

I therefore dissent from the affirmance of the judgment.  