Emery and Redfield, 9 How. Prac. 130-133. See, too, Friedman v. Metropolitan Steamship Co., 109 App. Div. 602, 96 N. Y. Supp. 331. Orders affirmed, with $10 costs and disbursements. PEOPLE ex rel. GOLDFARB v. GARGAN. (Supreme Court, Appellate Division, Second Department. February 1, 1918.) 1. EXTRADITION 30-RIGHT TO EXTRA DITE-PRESENCE OF ACCUSED-CONSUMMATION OF CRIME. Presence of relator in habeas corpus in the state demanding extradition at the inception of the crime entitles that state to extradite him for trial, even if he did not remain there until the consummation of the crime. 2. HAREAS Corpus ➡92(2)—HEARING-SCOPE. In habeas corpus, where relator was sought to be extradited for an offense in another state, the court rightly refused to go into the sufficiency of the indictment in the other state, or the merits of the defense. Appeal from Special Term, Kings County. Habeas corpus by the People, on the relation of Philip Goldfarb, against John J. Gargan. From an order of the Special Term, dismissing a writ of habeas corpus and directing that relator be delivered into the custody of the agent designated in the rendition warrant, relator appeals. Affirmed. See, also, App. Div., 168 N. Y. Supp. 1124. Argued before JENKS, P. J., and THOMAS, PUTNAM, BLACKMAR, and KELLY, JJ. Sydney Rosenthal, of Brooklyn, for appellant. Harry G. Anderson, Asst. Dist. Atty., of Brooklyn (Harry E. Lewis, Dist. Atty., of Brooklyn, on the brief), for respondent, PUTNAM, J. On the hearing of the writ of habeas corpus, it appeared that relator had been indicted in Pennsylvania for the crime of false pretenses, charged as committed on August 16, August 21, and August 25, 1917. Relator denied being a fugitive from the justice of the state of Pennsylvania, and set up by affidavit that he was not in that state "on any of the dates mentioned or thereabouts." [1] Relator's evidence tended to show his presence in the state of New York on and after August 19th. There was, however, testimony that he was in Philadelphia on August 16th at the occasion of his handing two checks to a certain witness there. Relator's presence in the demanding state when the false statement was made, or at the inception of the crime, entitles that state to extradite him for trial, even if he did not remain there until the consummation of the crime. Strassheim v. Daily, 221 U. S. 280, 31 Sup. Ct. 558, 55 L. Ed. 735; In re Cook (C. C.) 49 Fed. 833; Ex parte Hoffstot (C. C.) 180 Fed. 240; Id., 218 U. S. 665, 31 Sup. Ct. 222, 54 L. Ed. 1201. [2] The court rightly refused to go into the sufficiency of the indictment or the merits of the defense, which are matters for the courts of Pennsylvania. People ex rel. Himmelstein v. Baker, 137 App. Div. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 824, 825, 122 N. Y. Supp. 516; Drew v. Thaw, 235 U. S. 432, 439, 35 Sup. Ct. 137, 59 L. Ed. 302. The order dismissing the writ should therefore be affirmed. concur. GOOD et al. v. BROWN et al. (Supreme Court, Appellate Division, Second Department. February 8, 1918.) 1. EJECTMENT 106-POSSESSION-LAW OR FACT. In ejectment, possession may be both a question of fact and of law. 2. LIMITATION OF ACTIONS 183(3)-PLEADING. Where the defendant having the fee pleaded lapse of 20 years "before the commencement of this action," without saying "as to this defendant," the plea was sufficient, although other defendants had been served before; she, under Code Civ. Proc. § 398, being unaffected by prior service on others not united in interest with her. Appeal from Trial Term, Richmond County. Ejectment by Henry Herberton Good and others against Matilda Brown and others. Judgment for defendants, and plaintiffs appeal. Affirmed. Argued before JENKS, P. J., and THOMAS, RICH, PUTNAM, and BLACKMAR, JJ. William M. Mullen, of New York City, for appellants. William D. Gaillard, of New York City, for respondent Brown. PER CURIAM. The proceedings in the land office had resulted in a grant to Robert Brown, in which the Bodines were parties remonstrant. Brown's acts of occupation and possession were unmistakably those of ownership toward the Bodines and plaintiffs' privies in interest. Indeed, before this land grant, Brown had been improving the lands with active assistance from the Bodines in the way of lumber and material, without objection. [1] Possession may be both a question of fact and of law. The verdict on the ground of the statute of limitations was fully supported. [2] This ejectment action was started as to the original defendants on October 21, 1908. The grant by the commissioners of the land office had been on October 26, 1888. Matilda Brown, the daughter, who had the fee since 1902, was brought in by service of amended summons and complaint on February 13, 1909. In her answer, she pleaded the lapse of 20 years "before the commencement of this action," without saying "as to this defendant." Appellants urge here that this did not plead the continued running of the statute after October 21, 1908, when the other defendants were served. But, as to her, there was no action until she had been named in the summons and served. Her plea must be read with section 398 of the Code of Civil Procedure, that such a defendant is unaffected by prior service on others not united in interest with her. The statute of limitations is a protection against claims under ancient grants, where time has made it hard to fix precise boundaries. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes When neighboring occupants are improving their lands without objection (and even with active aid as builders), such questions should be asserted while the parties are alive. Failing to do so, their belated claims are rightly outlawed after 20 years. The judgment is therefore affirmed, with costs. PIERCE v. MASSMAN. (Supreme Court, Special Term, Chautauqua County. February 11, 1918.) 1. SET-OFF AND COUNTERCLAIM 40-CLAIMS ARISING AFTER COMMENCEMENT OF ACTION. Code Civ Proc. § 501, subd. 1, provides that a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of plaintiff's claim, or connected with the subject of the action, may be pleaded as a counterclaim, and subdivision 2 authorizes the pleading, in an action on contract, of any other cause of action on contract existing at the commencement of the action. Held, that a counterclaim under subdivision 1 need not have been in existence at the time of the commencement of the action. A counterclaim under Code Civ. Proc. § 501, subd. 1, was insufficient where, though it alleged a contract of the same date as the contract on which plaintiff's action was based, it did not allege that it was the same contract, or show in any other way that the matters set forth in the counterclaim arose out of the contract or transaction set forth in the complaint, or were connected with the subject of the action. Action by Luther L. Pierce against Herdman X. Massman. On demurrer by plaintiff to a counterclaim in defendant's answer. Demurrer sustained. Herman J. Westwood, of Fredonia, for plaintiff. John L. Campbell, of Brocton, for defendant. COLE, J. [1] It is insisted by plaintiff's counsel in support of the demurrer that it does not appear from the allegations that the counterclaim was in existence at the time of the commencement of the action. The defendant has attempted to allege a counterclaim under subdivision 1 of section 501 of the Code of Civil Procedure, and in such a case it is not necessary that the cause of action interposed as a counterclaim be in existence at the time of the commencement. This provision applies only to those counterclaims specified in subdivision 2 of that section. Caspary v. Hatch, 157 App. Div. 679, 142 N. Y. Supp. 785; Gleason v. Bush, 166 App. Div 865-867. 152 N. Y. Supp. 54. I have no doubt that the matter alleged in the paragraph demurred to may be properly interposed as a counterclaim if properly alleged. [2] It is not properly alleged, however. It is not alleged in any manner in the counterclaim demurred to that the matters there set forth arose out of the contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or are connected with the subject of the action. It is alleged "that on or about the 29th day of November, For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 1916, the parties hereto entered into a contract," etc., pursuant to which the plaintiff agreed to leave on the premises as much hay, etc., as was there at the time when he moved on, and that the plaintiff has failed to do so. While it appears from the complaint that the plaintiff's cause of action is founded on a contract between the parties on November 29, 1916, yet the counterclaim does not allege that the contract there mentioned is the same one set forth in the complaint. The rule is well settled that upon demurrer to a counterclaim it must be treated as a separate pleading, and that the defendant can get no benefit from allegations or denials of other parts of the answer, nor from the complaint, unless they are incorporated by reiteration, appropriate reference, or otherwise in the counterclaim. Blaut v. Blaut, 41 Misc. Rep. 572, 85 N. Y. Supp. 146; Douglass v. Phoenix Co., 138 N. Y. 209, 33 N. E. 938, 20 L. R. A. 118, 34 Am. St. Rep. 448; Goldberg v. Wood, 45 Misc. Rep. 327, 90 N. Y. Supp. 427. The demurrer is sustained, but the defendant may serve an amended answer, amending the said counterclaim numbered VI, within 20 days after service of a copy of the order to be entered hereon with notice of entry thereof. As this matter is brought on as a contested motion, pursuant to the provisions of section 976 of the Code of Civil Procedure, $10 motion costs are allowed to the plaintiff. In case such amended answer is not served, then final judgment may be entered sustaining said demurrer, with costs to the plaintiff, to be taxed by the clerk at the rates prescribed by law. BOWMAN v. TOWN OF CHENANGO. (Supreme Court, Special Term, Broome County. February 8, 1918.) HIGHWAYS 120(1)-DEFECTS-ACTIONS-PLEADING-SUFFICIENCY. Complaint against a town, alleging that it had a town superintendent of highways required to keep in repair sluices, culverts, and bridges, that plaintiff owned real property in the town, and that by improper construction of a culvert water was backed up on plaintiff's lands, is demurrable, since Highway Law (Consol. Laws, c. 25) § 74, making the town liable for damages by reason of any defect in its highways or bridges existing because of the neglect of any town superintendent, refers to highways and bridges in relation to their condition for public travel only. Action by Nancy H. Bowman against the Town of Chenango, wherein defendant demurred to the complaint. Demurrer sustained. Merchant, Waite & Waite, of Binghamton, for plaintiff. KILEY, J. The complaint in this action alleges that the defendant is a municipal corporation, one of the towns of Broome county; that in June and July, 1917, it had a town superintendent of highways duly elected, qualified, and authorized to discharge the duties imposed upon him under the Highway Law of the state of New York; that he was required to construct and keep in repair sluices, culverts, and bridges, and to keep culverts open, so that they were adequate for the For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes purpose for which they were required; that the plaintiff was the owner of real property situate in the town of the defendant, lying between Chenango river and the highway in said town; that by reason of improper construction and insufficient capacity of the culvert near plaintiff's property, and the failure on the part of the town superintendent to remedy this defect, it was insufficient to carry off water which would naturally flow through it, and that it was further hampered in that direction by permitting it to become filled up with débris; that while in that condition it backed up water onto the plaintiff's lands, injuring crops and shrubbery to the amount of $1,350, for which amount she demands judgment against the said town of Chenango. The defendant demurs to the complaint of the plaintiff : "Upon the ground that it appears upon the face of the complaint that the complaint does not state facts sufficient to constitute a cause of action." The action is brought under section 74 of the Highway Law of this state, which was formerly section 16, chapter 568, of the Laws of 1890. The only difference between section 16 of the Laws of 1890 and the present Highway Law, which was amended in 1913 (Laws 1913, c. 389), so far as the question herein involved is concerned, is the substitution of the words "town superintendent" in place of the words "any commissioner of highways." Section 74, so far as pertinent here, reads as follows: "Every town shall be liable for all damages to person or property sustained by reason of any defect in its highways or bridges, existing because of the neglect of any town superintendent of such town." In Whitney v. Town of Ticonderoga, 127 N. Y. 40, 27 N. E. 403, the court construed the term "defective highways" as "used in reference to their condition for public travel upon them, which their designation as highways imports, and in view of the purpose for which they are established and maintained." In Winchell v. Town of Camillus, 109 App. Div. 341, 95 N. Y. Supp. 688, the plaintiff complains that the town, through its commissioner of highways, permitted the sluiceway across the highway to become filled up, so as to set back the surface water and overflow plaintiff's premises. Plaintiff recovered a judgment in that action in the trial court, which was reversed in the Appellate Division by a divided court, holding the town was not liable. In 190 N. Y. at page 536, 83 N. E. 1134, the decision of the Appellate Division was affirmed without opinion. In that case all of the elements appeared that are foreshadowed by the complaint in this action, except the allegation of improper construction of the culvert. In the case of Barber v. Town of New Scotland, reported in 88 Hun, 522, and in 34 N. Y. Supp. 968, the question of improper construction and defective condition is up and considered, and in that case judgment for the plaintiff is reversed. Plaintiff urges that the demurrer should not be sustained, and uses as her reason that her position has been sustained in the case of Dye v. Town of Cherry Creek, 87 Misc. Rep. 207, 149 N. Y. Supp. 497, and affirmed without opinion in 167 App. Div. 959, 152 N. Y. Supp. 1108. That decision came up on a motion by the defendant for judg |