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himself.-Marshall v. Sackett & Wilhelms Co., | error to submit question of master's negligence 168 N. Y. S. 259.

(B) Wages and Other Remuneration.

72 (N.Y.Sup.) One regularly employed as a stenographer could not recover commission on sale of flour, without showing an employment to make such sale, and an express or implied agreement to pay usual compensation, and that he was procuring cause of sale. Galwey v. Spindler, 168 N. Y. S. 648.

to jury; it being established as a matter of law. Carr v. Gottschaldt, 168 N. Y. S. 1045.

124(4) (N.Y.Sup.) A railroad, having assumed control of a car of another line and ordered its servant to work on it, is not entitled to dismissal of his suit for injuries received thereon, on ground that it had no control and no opportunity to inspect.-Cline v. Northern Cent. R. Co., 168 N. Y. S. 303.

(E) Fellow Servants.

180 (1) (N.Y.) Negligence of coemployé is not a defense under federal Employers' Liability Act.-Scarlett v. Delaware, L. & W. R. Co., 118 N. E. 513, 222 N. Y. 155.

80(10) (N.Y.Sup.) In action by one regularly employed as stenographer for commission on sale of flour, evidence held not to show an agreement to pay him usual commission for sales outside of his regular duties. or that he was procuring cause of sale.-Galwey v. Spind-182(2) (N.Y.) Under Labor Law, § 200, as amended by Laws 1910, c. 352, master was liable to plaintiff whose duty it was to aid a belt re

ler, 168 N. Y. S. 648.

III. MASTER'S LIABILITY FOR IN- pairer as directed, for injuries due to negligence

JURIES TO SERVANT.

(A) Nature and Extent in General.

872. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of number sections 346-420, at the end of this topic, where the matter in this and future index-digests will be found.

(B) Tools, Machinery, Appliances, and Places for Work.

101, 102(6) (N.Y.) If appliance selected is in general use, employer is not liable to servant injured thereby, though another pattern of such appliance also in use was safer.-Cleary v. R. E. Dietz Co., 118 N. E. 509, 222 N. Y. 126. 105(1) (N.Y.) Master is required to furnish such appliances as are reasonably safe, and may rely on judgment of others engaged in same business, and, if appliance selected is in general use, he is not liable to servant injured thereby. Cleary v. R. E. Dietz Co., 118 N. E. 509, 222 N. Y. 126.

107(5) (N.Y.Sup.) Rule of safe place held without application to tunnel excavation, though injured employé was engaged in cleaning up after blasts and had nothing to do with the blasting.-Adzerycha v. Holbrook, Cabot & Rollins Corp., 168 N. Y. S. 373.

116(2) (N.Y.) Since Labor Law, § 18, imposes on the employer the nondelegable duty to furnish safe and proper scaffolds, the scaffold becomes a place to work, and that it is temporary and is moved about by the servant does not relieve the master of liability for injuries from defects therein.-Jeffrey v. H. W. Miller, Inc.. 118 N. E. 522. 222 N. Y. 135.

Labor Law, § 18, imposing on employer duty to furnish safe scaffolds, applies to scaffold used in plastering the ceiling of a room.-Id.

116(2) (N.Y.Sup.) Labor Law, § 18, as to duty of employer as to scaffolding for employés in "erection, repairing, altering or painting building," has no application to work of tearing down.-Burger v. Kirchhof, 168 N. Y. S. 239.

*

121(1) (N.Y.Sup.) In action for injuries due to defective guard rail on a scaffold, not secured as required by Labor Law, § 18, held

of repairer in detail of work.-Guirizinski v. American Radiator Co., 118 N. E. 215, 222 N. Y. 85.

199 (N.Y.Sup.) Employés engaged in blasting in tunnel excavation held fellow servants of a mucker employed in cleaning up after the blasts.-Adzerycha v. Holbrook, Cabot & Rollins Corp., 168 N. Y. S. 373.

(G) Contributory Negligence of Servant.

239 (N.Y.) Manufacturer, having furnished servant best punch press on market, which could be operated without pressing knee under bedplate, was not liable to servant injured while working with leg unnecessarily under machine.Cleary v. R. E. Dietz Co., 118 N. E. 509, 222 N. Y. 126.

(H) Actions.

25034. Owing to the great increase of matter heretofore classified to this section, we have made a new subdivision, consisting of number sections 346-420, at the end of this topic, where the matter in this and future index-digests will be found.

265(7) (N.Y.Sup.) Rule of res ipsa loquitur held without application to injuries to employé cleaning up after blast, from an explosion, as it might have been due to the negligence of his fellow servants.-Adzerycha v. Holbrook, Cabot & Rollins Corp., 168 N. Y. S. 373.

270(9) (N.Y.Sup.) In servant's action for personal injury from falling of bags of cement by reason of master's alleged negligence as to condition of floor in warehouse, evidence that other bags of cement had fallen down in warehouse within six weeks was irrelevant to the issue.-Scharff v. Jackson, 168 N. Y. S. 311.

270(12) (N.Y.Sup.) While the master has the right to prove general custom, on issue of negligence, testimony of inspectors for other roads that it was not customary for such companies to give inspectors instructions to condemn or repair cars such as the one on which plaintiff was injured, held objectionable.-Cline v. Northern Cent. R. Co., 168 N. Y. S. 303.

278(8) (N.Y.Sup.) Additional evidence on retrial of servant's action for injury while trucking bags of cement in a warehouse held not to

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

show master's negligence as to condition of the force at time of accident.-Moran v. Rodgers & floor.-Scharff v. Jackson, 168 N. Y. S. 311. Hagerty, 168 N. Y. S. 410.

278(20) (N.Y.Sup.) In an action by a serv-354 (N.Y.Sup.) Under Workmen's Compen ant for injuries, evidence held sufficient, in view sation Act, § 29, providing for election between of two verdicts for plaintiff, to support a finding remedies when employé is injured or killed by of negligence in not sufficiently warning plaintiff another's negligence, and for subrogation if comof the danger of the occupation of making ful- pensation is paid, a widow with dependent child minate blasting caps.-Pearsall v. Macbeth, 168 may, for herself and child, make an election.N. Y. S. 84. Hanke v. New York Consol. R. Co., 168 N. Y. S. 234.

286(10) (N.Y.) Whether injury to helper was due to negligence of belt repairer who opened belt, causing it to fall and knock over a loose radiator onto plaintiff's foot, held a jury question.-Guirizinski v. American Radiator Co., 118 N. E. 215, 222 N. Y. 85.

Workmen's Compensation Act, § 29, providing for election between remedies when employé is injured or killed by another's negligence, and for subrogation if compensation is paid, was merely clarified, and not substantially altered, by Laws 1916, c. 622, § 7, providing for election of remedies by minors, or their parents or guardians, as the commission determines.-Id.

286(40) (N.Y.) Evidence that defendant employer's dock foreman instructed plaintiff employé, barge captain, that landing would be inade at particular gangway, and instructed tug 354 (N.Y.Sup.) Employé, injured by third captain to proceed to further point without advising plaintiff of change, held to make defendant's negligence jury question, where plaintiff was injured by hawser with which he was endeavoring to make landing at first named point. -Scarlett v. Delaware, L. & W. R. Co., 118 N. E. 513, 222 N. Y. 155.

288(1) (N.Y.) A servant whose duty it was to aid a belt repairer did not, as a matter of law, assume risk for injuries due to repairer's negligence.-Guirizinski v. American Radiator Co., 118 N. E. 215, 222 N. Y. 85.

289(15) (N.Y.) A servant whose injuries resulted from falling of belt, opened by belt repairer whom servant was employed to assist, held not guilty of contributory negligence as a matter of law.-Guirizinski v. American Radiator Co., 118 N. E. 215, 222 N. Y. 85. IV. LIABILITIES FOR INJURIES TO

THIRD PERSONS.

(C) Actions.

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party, may proceed against his employer under Workmen's Compensation Act or pursue common-law rights against third party. Sabatino v. Thomas Crimmins Const. Co., 168 N. Y. S. 495. In employé's action against third party, employer's failure to pay workmen's compensation award or secure its payment which exposed him to certain actions under act, held immaterial, where third party had paid award to commission, but employé refused to accept it.-Id.

361 (N.Y.Sup.) Village employé, injured on leaving truck, not operated by village, on which he rode part of way to depot, where he was going to get lead pipe for water pipe work, was not engaged in hazardous occupation.-Spinks v. Village of Marcellus, 168 N. Y. S. 69.

361 (N.Y.Sup.) Employé, whose sole duty was to feed bundles into combined thresher and

cleaner, was neither engaged in hazardous employment of "milling," within Workmen's Compensation Act, § 2, group 29, nor of "operating vehicle," within group 41.-Vincent v. Taylor Bros., 168 N. Y. S. 287.

A combined thresher and cleaner, mounted on axles and wheels, would, while being drawn from farm to farm, be a "vehicle," within Workmen's Compensation Act, § 2, group 41, but could not be so considered while being used as a stationary machine.-Id.

362 (N.Y.Sup.) Where company in nonhazardous employment hired carpenter by hour to put in shelving, who, when at work, was injured, employer was not liable to pay compensation, under Workmen's Compensation Act.-Geller v. Republic Novelty Works, 168 N. Y. S. 263.

363 (N.Y.Sup.) An employé, whose sole duty was to feed bundles into a combined thresher and cleaner, was not a "farm laborer."-Vincent v. Taylor Bros., 168 N. Y. S. 287.

370 (N.Y.Sup.) Employé of garbage reduc tion company, who, while loading "tankage" into cars, went upon roof of building and, while at tempting to pull down a rope used in hoisting materials, fell through the skylight and was killed, suffered an "injury in the course of his employment" within Workmen's Compensation Act.-Ross v. Genesee Reduction Co., 168 N. Y. S. 51.

349 (N.Y.Sup.) Under Workmen's Compensation Act, § 16, subd. 4, not affected by amendatory act (Laws 1916, c. 622), and under Gen-375(1) (N.Y.Sup.) Guard employed by eral Construction Law, §§ 93, 110, liability to transit company by hour or trip, and who be pay compensation is governed by statutes in tween trips remained in car, riding on some

purpose of his own, was not entitled to relief, under Workmen's Compensation Act, as amended by Laws 1916, c. 622, because not injured in service.-Pierson V. Interborough Rapid Transit Co., 168 N. Y. S. 425.

excuse servant's failure to give notice within 10 days. In re Gibbons, 168 N. Y. S. 412.

Under Workmen's Compensation Act, § 18, requiring notice of injuries within 10 days after disability, notice of injury within 30 days after death of employé, who died within 10 days of disability, but more than 10 days after the mjury, was sufficient.-Id.

375(2) (N.Y.Sup.) Village employé, who rode with truck driver part of way to depot, where he was going to get lead for water pipe work, held not entitled to compensation, under Workmen's 404 (N.Y.Sup.) Workmen's Compensation Compensation Law, for injuries received when he was hurt on leaving truck; village, though driver was to return to obtain supplies, not being engaged in operating vehicle.-Spinks v. Village of Marcellus, 168 N. Y. S. 69.

(B) Compensation,

Act, § 68, relating to State Industrial Commission's investigations and hearing, is not limited by section 72, relating to depositions, so that commission might receive duly taken affidavits of nonresident parents of deceased to establish their dependency.-Moran v. Rodgers & Hagerty, 168 N. Y. S. 410.

lish accidental injury to servant within the Workmen's Compensation Act.-In re Gibbons, 168 N. Y. S. 412.

385(1) (N.Y.Sup.) The number 300, used in 405(4) (N.Y.Sup.) Evidence held to estabWorkmen's Compensation Law, § 14, providing that, to arrive at the annual wage, the average daily wage be multiplied by 300, is not arbitrary, and does not apply to one who works seven days per week, or less than six, who comes under subdivision 3, and the use of 332 for one working seven days was proper.-In re Prentice, 168 N. Y. S. 55.

385(1) (N.Y.Sup.) Under Workmen's Compensation Law, § 14, subd. 1, injured workman, not shown to have worked Sundays, held not entitled to compensation for the Sunday preceding the Monday he went to work.-Beers v. Beers Bros., 168 N. Y. S. 86.

385(16) (N.Y.Sup.) The Industrial Commission has jurisdiction to make an award to an injured employé for medical services rendered to him within 60 days after an injury sustained in the service of his employer.-Goldflam v. Kazemier & Uhl, 168 N. Y. S. 87.

~417(9) (N.Y.Sup.) Where award was based upon employer being engaged in milling business, which, if not true, would necessitate a reversal, and evidence, stipulated as all "material" evidence, did not establish that employer was so engaged, award will be reversed, and claim sent back to commission for further hearing and finding.-Vincent v. Taylor Bros., 168 N. Y. S. 287.

419 (N.Y.Sup.) Where employé, electing to proceed against employer, assigned to him his right of action against third party pursuant to Workmen's Compensation Act, and such third party paid award to commission and took release from employer in good faith, employé cannot thereafter have commission vacate award. withdraw claim, and sue third party.-Sabatino v. Thomas Crimmins Const. Co., 168 N. Y. S. 495.

MEASURE OF DAMAGES.

In the absence of request by injured employé to employer that he furnish medical services, there can be no award therefor, under Workmen's Compensation Act, § 13, which expressly See Damages, 124, 216. makes such request prerequisite to validity of claim for such services.-Id.

388 (N.Y.Sup.) Under Workmen's Compensation Act, § 3, subd. 11, and section 16, and Domestic Relations Law, § 114, adopted child of employé's daughter held not entitled to compensation for his death. Winkler v. New York Car Wheel Co., 168 N. Y. S. 826.

(E)

MECHANICS' LIENS.

II. RIGHT TO LIEN.
Subcontractors,

and Contractors'

Workmen and Materialmen.

113(2) (N.Y.Sup.) In suit by subcontractor to foreclose mechanic's lien, it is necessary to show that on day of filing and serving notice of lien there were moneys due to contractor from owner of building.-W. A. Case & Son Mfg. Co. v. Young Improvement Corp., 168 N. Y. S. 1025.

389 (N.Y.Sup.) Under Workmen's Compensation Act, requiring employé, injured by third party, to assign his cause of action against such party upon electing to seek compensation under act, etc., the assignment is effective upon election being made and before award.-Saba-114(1) (N.Y.) Lien Law, § 15, held suffitino v. Thomas Crimmins Const. Co., 168 N. Y. S. 495.

New remedy given against employer by Workmen's Compensation Act is consideration for employe's surrender of his cause of action against third party.-Id.

Employé's assignment of his cause of action against third party vested title thereto in employer, who could not be divested thereof against his consent by either employé or commission. -Id.

(C) Proceedings.

398 (N.Y.Sup.) That superintendent of factory heard of accident within 10 days did not

ciently complied with by filing assignment of station where it contained statement of submoneys due under contract to build passenger stance of contract assigned; it not being necessary that contract and assignment be filed on New York v. Lyttle, 118 N. E. 604, 222 N. Y. separate papers.-American Hardware Corp. of 201.

Lien Law, § 15, requiring assiguments of mon. eys due under construction contract to be filed, must be given reasonable construction which will effectuate its aims.-Id.

Under Lien Law, § 15, requiring filing of assignment of construction contract or money due

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

thereunder, instrument filed must identify sub- | feat a judgment against him, and who had taken stance by force of its own description.-Id.

assignee's written statement that he had no claim under bond or mortgage, was party to an illegal transaction, and could not compel a reassignment.-Dressel v. Hanser, 168 N. Y. S.

542.

V. ASSIGNMENT OF LIEN OR CLAIM. 206 (N.Y.Sup.) Where subcontractor sued on assigned mechanic's lien of contractor, and proofs established deliberate breach by such 242 (N.Y.Sup.) Under an assignment by contractor and complete abandonment of work, plaintiffs to defendants of a bond and mortgage there was nonperformance, and plaintiff could under participation agreement reciting defendnot recover.-W. A. Case & Son Mfg. Co. v. ants' prior ownership up to $2,000, defendants Young Improvement Corp., 168 N. Y. S. 1025. were vested with title, and did not become trustees for plaintiff.-Thomas v. Zahka, 168 N. Y. VI. WAIVER, DISCHARGE, RELEASE, S. 396. AND SATISFACTION.

(C) Extinguishment, Release, or Payment. 239 (N.Y.Sup.) Under Lien Law, § 4, providing that subcontractor's lien shall not be for a sum greater than that earned and unpaid on the contract at the time of filing notice of lien, an owner was not entitled, as against a subcontractor, to treat the balance of a merchandise account as payment, where prior to the filing of lien there had been no such agreement or application. Williamson v. Barker, Rose & Clinton Co., 168 N. Y. S. 125.

VII. ENFORCEMENT.

290 (3) (N.Y.Sup.) Proceeding to foreclose mechanic's lien, like other actions, must follow pleadings, or at least theory of trial and requests submitted.-W. A. Case & Son Mfg. Co. v. Young Improvement Corp., 168 N. Y. S. 1025.

MENTAL CAPACITY.

See Wills, ~44-55.

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248 (N.Y.Sup.) Assignees of bond and mortgage under participation agreement reciting prior ownership over assignor's up to $2,000 and interest, and giving them all rights of any holder, had right to collect or exchange security. -Thomas v. Zahka, 168 N. Y. S. 396. tiff of bond and mortgage under participation In absence of bad faith, assignees from plainagreement reciting prior ownership up to $2.000 were not obliged to wait until after mortgage matured, with possible extinguishment of security, before exchanging or compromising security.-Id.

262 (N.Y.Sup.) That assignees from plaintiff of bond and mortgage under participation agreement were remiss in giving plaintiff notice of their act in exchanging or compromising security did not amount to waste.-Thomas v. Zahka 168 N. Y. S. 396.

268 (N.Y.Sur.) Where decedent leaves land and a mortgage thereon, but does not leave both the fee and the mortgage to the same person. the executors must collect the interest and account therefor; there being no merger.-In re McNulty, 168 N. Y. S. 591.

270 (N.Y.) Evidence held insufficient to establish conditional delivery of a blank assignment of a mortgage. Levy v. Louvre Realty Co.. 118 N. E. 207, 222 N. Y. 14.

X. FORECLOSURE BY ACTION. (E) Parties and Process.

427 (1) (N.Y.Sup.) Where defendants, assignees from plaintiff of bond and mortgage, under participation agreement reciting defenda its' prior ownership up to $2,000 and interest, foreclosed, notice to plaintiff by making her party was necessary; otherwise decree and sale might be defective. Thomas v. Zahka, 168 N. Y. S. 396.

MOTIONS.

See Continuance; Courts, 189; Criminal
Law, 968; New Trial, 131, 150:
Pleading, 346-367; Trial, 164, 166.

MOTOR CYCLES.

See Explosives, 7.

MOVING PICTURES.

See Trade-Marks and Trade-Names, 70.

MUNICIPAL CORPORATIONS.

See Courts, 188; Criminal Law, 29:
Estoppel, 62; Indemnity, 11; Schools

and School Districts; Street Railroads, 57; Trial, 286; Venue, 52.

I. CREATION, ALTERATION, EXIST-
ENCE, AND DISSOLUTION.

(A) Incorporation and Incidents of Ex-
istence.

city. People ex rel. Globe Const. Co. v. Ormond, 168 N. Y. S. 255.

402(9) (N.Y.Sup.) Under Greater New York Charter, § 951, as amended by Laws 1916, c. 516, making decisions of board of revision of assessments final in street grade awards, review by courts is precluded.-People ex rel. Globe 4 (N.Y.) Laws 1914, c. 444, authorizing Const. Co. v. Ormond, 168 N. Y. S. 255. cities to adopt any of the forms of government 404(1) (N.Y.Sup.) At common law, owner of therein set forth, held not violative of Const. art. 3, § 1, of article 12, §§ 1, 2, or of any other constitutional provision.-Cleveland City of Watertown, 118 N. E. 500, 222 N. Y.

159.

V.

abutting property, damaged by street grade
Globe Const. Co. v. Ormond, 168 N. Y. S. 255.
changes, was without remedy.-People ex rel.

York Charter, § 951, as amended by Laws 1916,
Property owner cannot avoid Greater New

c. 516, making decision of board of revision of
stituting certiorari proceedings against board of
assessors, without appealing to revision board.
-Id.

III. LEGISLATIVE CONTROL OF MU-assessments final in street grade awards, by in-
NICIPAL ACTS, RIGHTS, AND
LIABILITIES.

642 (N.Y.) It is within the legislative province to direct in what way, through what board of municipal officers or agents, or by what municipal officers, the powers given a city shall be exercised.-Cleveland v. City of Watertown, 118 N. E. 500, 222 N. Y. 159.

V. OFFICERS, AGENTS, AND EM-
PLOYÉS.

(A) Municipal Officers in General.
124(1) (N.Y.) Laws 1914, c. 444, § 37, au-
thorizing cities adopting plans of government
therein defined to regulate and abolish offices
and employments, and distribute powers and
duties among officers and employés, held not
invalid.-Cleveland v. City of Watertown, 118
N. E. 500, 222 N. Y. 159.

c.

157(1) (N.Y.Sup.) Under Laws 1908, 452, art. 13, § 2, and Laws 1909, c. 15 (Consol. Laws, c. 7), as amended by Laws 1910, c. 264, relator, a former volunteer fireman, appointed chief probation officer of city of Yonkers, could not be removed without a hearing on charges, etc.-People ex rel. Garrity v. Walsh, 168 N. Y. S. 440.

XI. USE AND REGULATION OF PUB-
LIC PLACES, PROPERTY,
AND WORKS.

(A) Streets and Other Public Ways.
663 (2) (N.Y.Sup.) If grant for purpose of
a road was on condition subsequent, city, suc-
ceeding to title, could have its title defeated
only by a re-entry.-Huber v. Gorg, 168 N. Y.
S. 834.

671 (6) (N.Y.Sup.) Where a city appropriated 64 feet of a street to build an expensive ornamental front on a public building and shut out light and air of an adjoining landowner with out compensation, injunction will not be granted because adequate relief can be afforded by compensatory damages.-Hellinger v. City of New York, 168 N. Y. S. 271.

671 (7) (N.Y.Sup.) Although a city has unlawfully encroached on a street so as to impair the light and air of an adjoining owner, injunction will not be granted where the cost of remodeling the building would greatly exceed the damage.-Hellinger v. City of New York, 168 N. Y. S. 271.

162(5) (N.Y.Sup.) Superintendent of bor-706 (5) (N.Y.Sup.) Evidence held insuffiough of Manhattan, city of New York, is not a cient to establish freedom from contributory "public officer," and if illegally removed could negligence of eight year old boy, injured in some not maintain action to recover amount of manner by an automobile truck on the street.salary paid to another, who occupied office Gangi v. Fradus, 168 N. Y. S. 285. from which he had been ousted.-Collins v.706 (5) (N.Y.Sup.) Evidence held insuffiScannell, 168 N. Y. S. 720. cient to show negligence of defendant in action for damages to automobile in collision on city street. Rango v. Fennell, 168 N. Y. S. 646.

(C) Agents and Employés.

215 (N.Y.) Laws 1914, c. 444, § 37, authorzing cities, adopting plans of government therein defined, to regulate and abolish offices and employments, and distribute powers and duties among officers and employés, held not invalid.Cleveland v. City of Watertown, 118 N. E. 500,

222 N. Y. 159.

IX. PUBLIC IMPROVEMENTS. (D) Damages.

378 (N.Y.Sup.) Laws 1916, c. 516, making decision of board of revision of assessments, final in New York city street grade awards, is not invalidated by fact that corporation counsel of city is member of such board, since claims are satisfied from benefit assessments, and not by

The mere fact that defendant's automobile truck skidded and struck plaintiff's automobile was not evidence of negligence.-Id.

707 (N.Y.Co.Ct.) Operation of motor vehicle in public streets of city at more than one

mile in four minutes held a violation of the General Highway Traffic Law May 25, 1917, as amended June 6, 1917, and also of speed ordinance of city of Troy, enacted under Laws 1917, c. 769, § 288, in force June 30, 1917.People v. Fitzgerald, 168 N. Y. S. 930.

(C) Public Buildings, Parks, and Other Public Places and Property. 719(4) (N.Y.) Where commissioner of docks reserved right to reject bids for space on docks

For cases in Dec. Dig. & Am. Dig. Key No. Series & Indexes see same topic and KEY-NUMBER

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