American Ice Company, Appellant, v. Catskill Cement Company, Respondent

American Ice Company, Appellant, v. Catskill Cement Company, Respondent. (Argued October 2, 1905; decided October 17, 1905.) American Ice Co. v. Catskill Cement Co., 99 App. Div. 31, appeal dismissed. Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered November 29, 1904, which reversed an order of Special Term continuing pendente lite an in junction theretofore granted restraining the defendant from so operating a cement mill as to cause ashes, cinders and dust to fall upon the ice fields and premises of the plaintiff. The following questions were certified: “First. Before the enactment of chapter 749, Laws of 1904, had the defendant the right to carry on a lawful manufacturing business upon lands bordering on the Hudson river, if in so doing, smoke, cinders, dust or soot was discharged from its mill into the air and carried by the winds over and upon ice formed in said river, to the injury of such ice, provided the defendant’s mill was properly constructed and operated with due care ? “Second. Before the enactment of chapter 749, Laws of 1904, had the plaintiff the right to restrain and prevent the defendant from operating its said mill for the reason that in so doing smoke, cinders, dust or soot was discharged from said mill into the air and carried by the winds over and upon ice formed in the Hudson river to the injury of such ice, although the defendant’s mill was properly constructed and operated with due care in carrying on a lawful manufacturing business ? Third. Is chapter 749 of the Laws of 1904 of this state constitutional ? ” A. T. Clearwater for appellant. Frank H. Osborn and John J. Linson for respondent. [MAJORITY] Appeal dismissed, with costs, upon the ground that none of the questions certified to this court was passed upon by the Appellate Division and the order is silent as to the ground of reversal; no opinion. Concur : Cullen, Oh. J., Gray,.Bartlett, Haight, Vann and Werner, JJ. Absent; O’Brien, J.