Augusta G. Genet, Respondent, v. The President, Managers and Company of The Delaware and Hudson Canal Company, Appellant

Augusta G. Genet, Respondent, v. The President, Managers and Company of The Delaware and Hudson Canal Company, Appellant. Judgment affirmed, with costs, on opinion in Genet v. President, etc.,1). & H, O. Co., No. 7 (71 App. Div. 613). [MAJORITY] Present — O’Brien, P. J. (dissenting), Ingraham, McLaughlin, Laughlin and Houghton, JJ. [DISSENT — O’Brien, P. J.] 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 twenty-eight per cent of the culm heap wasrock 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 tó 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.