that the court is authorized to correct the verdict to conform to the intention of the jury. Burlingame v. Central Railway (C. C.) 23 Fed. 706; Cope v. Kidney, 115 Pa. 228, 8 Atl. 836; Murphy v. Stewart, 43 U. S. 263, 11 L. Ed. 261.

The order of the court, therefore, is that judgment be entered in favor of the plaintiff, Thomas I. Elliott, and against the defendants, John O. Gilmore and Charles T. Schoen, for the sum of $3,070.40.

KLUTT v. PHILADELPHIA & R. RY. CO.

(Circuit Court, E. D. Pennsylvania. June 22, 1906.)

No. 25.

NEW TRIAL-GROUNDS-VERDICT AGAINST EVIDENCE-COLLISION-RUNNING DOWN ROWBOAT INSUFFICIENT LOOKOUT.

A new trial denied to defendant in an action for the running down and killing of plaintiff's husband, who was in a rowboat, by defendant's tug and tow, on the ground that the question whether the killing was due to defendant's negligence in failing to maintain a proper lookout was one for determination by the jury.

[Ed. Note.-For cases in point, see vol. 37, Cent. Dig. New Trial, §§.135-149.]

On Rule for New Trial.

Francis Fisher Kane, for plaintiff.
John G. Lamb, for defendant.

HOLLAND, District Judge. With the exception of a few minor details, the evidence on the trial of this cause in April, 1906, in this court was the same as on the first trial, and the Circuit Court of Appeals, in an opinion by Judge Acheson, 142 Fed. 394, held that it was for the jury to say whether, by the employment of proper lookouts, the defendant's tug might not have discovered the exposed situation of Klutt in time, by the exercise of ordinary care and diligence, to have avoided the accident. It is true the defendant's evidence in this trial showed that there were no box cars on the floats, and the captain claimed he was at the wheel, and had an unobstructed view all around, and that this view was not interfered with in any way by the cars on the floats, nor did they interfere with his view of the man in the rowboat. Plaintiff's witnesses claim decedent was caught in the ice, but the captain insists he was not, but negligently endeavored to cross the river in front of the tow, and failed to pass in time, and that he (the captain) blew the whistle and reversed his engine so soon as he saw there was danger of his tow striking the decedent. This was a question for the jury, and if the man was fast in the ice, it was for the jury to say whether a lookout might not have discovered this in time and avoided the accident. New trial refused.

In re CRAMOND.

(District Court, N. D. New York, June 6, 1906.)

1. BANKRUPTCY-LIENS-VALIDITY.

The rule that a bankrupt's trustee takes title to the bankrupt's property as of the date of the adjudication, subject to all valid liens thereon created more than four months prior to the filing of the bankruptcy petition, has no application to liens whenever created, which though valid as to the bankrupt are invalid as to creditors.

2. SAME CREDITS OF BANKRUPT-ADMINISTRATION BY TRUSTEE.

Money due to a bankrupt on a paving contract at the time of the filing of his bankruptcy petition, though subject to valid liens, was properly paid to the bankrupt's trustee to be administered, and paid over to those entitled thereto under the direction of the bankruptcy court. 3. SAME REFEREES TRUSTEES-COMMISSIONS-PROPERTY SUBJECT TO LIENS. Under Bankr. Act July 1, 1898, c. 541, §§ 40, 48, 30 Stat. 556, 557 [U. S. Comp. St. 1901, pp. 3436, 3439], as amended by Act Feb. 5, 1903, c. 487, §§ 9, 11, 32 Stat. 799 [U. S. Comp. St. Supp. 1905, pp. 687, 688]. providing that referees shall be entitled to commissions on "all moneys disbursed to creditors by the trustee, and that trustees shall be entitled to such commissions on all moneys disbursed by them as may be allowed by the courts," credits of a bankrupt subject to valid liens, which credits were collected and disbursed in the bankruptcy proceedings, were liable for commissions to the referee and trustee in case the other property of the bankrupt was insufficient to pay such commissions and the expenses of administration.

4. SAME LIEN CLAIMS-ALLOWANCE-STATUTES.

Bankr. Act July 1, 1898, c. 541, § 57a, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443], provides that secured creditors may prove their claims showing the claim, the consideration, and securities held therefor, and section 57e provides that secured claims and others having priority may be allowed for certain purposes, but shall be allowed only for such sums as to the courts seem to be owing over and above the value of the securities or priorities. Held, that such sections had reference to the allowance of secured claims for the purpose of fixing the sum on which a dividend from the general estate was to be paid, and for the limiting of the voting power or voice of the secured creditor or creditor having a priority at creditors' meetings.

5. SAME LIENS VALIDITY.

A municipal contractor, who subsequently became a bankrupt, after having assigned the amount to become due to him from a city on a paving contract to a bank for advances to enable him to perform the contract, made other similar assignments to materialmen for materials furnished. The materials were all furnished and the work was completed and accepted subject to a slight deduction more than 30 days prior to the filing of the bankruptcy petition; the price being payable by the city within 90 days thereafter. Held, that such materialmen, though having filed and perfected a lien for the materials furnished, as authorized by Laws N. Y. 1897, p. 517, c. 418, § 5, were entitled to liens on the fund due from the city to the contractor by virtue of their assignments independent of the state law, which were enforceable against the fund in bankruptcy.

6. SAME LABOR CLAIMANTS-NOTICE OF LIEN-FAILURE TO FILE.

Laws N. Y. 1897, p. 517, c. 418, §5. provides for a lien for labor and materials furnished to a public contractor on the amount due from a state or municipal corporation. Section 12 (page 520) declares that at any time before the completion and acceptance of the improvement, and within 30 days thereafter, a person performing work for the contractor.

his subcontractor, assignee, or legal representative may file a notice of lien with the officer having charge of the disbursements of the state or corporate funds applicable to the contract under which the claim is made, and section 17 (page 522) declares that the lien for labor or materials shall not continue for a longer period than three months after the notice of the filing of the lien, unless an action is brought to foreclose the same, etc. Held, that persons having performed labor for a municipal contractor, who thereafter became bankrupt, having filed no notice of lien under such sections, had no lien on the amount due from the city to the contractor, though they were entitled to priority of payment over general creditors, under Bankr. Act, July 1, 1898, c. 541, § 64b, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447].

7. SAME EQUITABLE LIENS-PRIORITY OF CLAIM.

Where a municipal contractor who subsequently became a bankrupt, on assuming a paving contract with the city, assigned all his right to money payable from the city under the contract to a bank in order to obtain money with which to perform the work, and the bank advanced money for such purpose in good faith to enable the contractor to complete the contract, it acquired an equitable lien on the fund due from the city to the contractor, though some of the advancements were made after the contractor became insolvent, which was superior to the right to priority of payment given by Bankr. Act July 1, 1898, c. 541, § 64, 30 Stat. 563 [U. S. Comp. St. 1901, p. 3447], to labor claimants having no other lien.

A bank, having advanced money to a municipal contractor to enable him to perform the contract, in consideration of an assignment of an amount due the contractor from the city, was not entitled to file a lien on such fund under Laws N. Y. 1897, p. 514. c. 418, providing for liens on funds due to public improvement contractors on behalf of "laborers and materialmen."

9. SAME CLAIMS-PRIORITY OF PAYMENT-DEETS HAVING PRIORITY.

Bankr. Act July 1, 1898. c. 541, § 64b, subd. 5, 30 Stat. 563 [U. S. Comp. St. 1901, p. 34471. providing for payment of debts owed to any person who by the laws of the state or the United States is entitled to priority, has no reference to liens actually existing on credits belonging to the bankrupt to be paid after the payment of taxes, subject to abatement for commissions expressly allowed to referees and trustees, etc. Review of the decision of referee in bankruptcy adjudging that the costs and expenses of the proceedings in bankruptcy, including commissions of referee and trustee, and claims for labor performed within three months of the adjudication, not exceeding $300 to each laborer, be paid from the amount received by the trustee in bankruptcy on a street paving contract between William J. Cramond, now the bankrupt, and the city of Rome, N. Y., which money was not actually due and payable at the date of the filing of the petition in bankruptcy, before payment therefrom to certain assignees of the money to become due on such contract on assignments thereof made prior to the bankruptcy and more than three months prior thereto as security for advances of money to be made, and which were made, to carry on and prosecute the work to be done and procure the necessary material to be used in executing the contract, and also to procure material to be used, and which was necessarily procured and used, in the execution and performance of such contract. The assignments of such money to become due and payable were made prior to the advances of money and furnishing of material and prior to the doing of any work on the contract. The labor claims, sought to be given priority, were for labor done for the contractor, now bankrupt, in the execution of such contract, and six of the assignees of such moneys filed liens pursuant to the lien law of the state of New York. The labor claimants, in question here, did not.

Wm. J. Powers and Thomas J. McNamara, for labor claimants. D. F. Searle, for assignees of moneys.

McMahon & Larkin, for trustee.

RAY, District Judge. On the 26th day of August, 1904, the now bankrupt, William J. Cramond, then solvent, entered into a written. contract with the city of Rome to pave, with brick, East Dominick street in said city from First street to the entrance to the Locomotive Works. He was to furnish all the material and perform all the labor and payment of the contract price, $26,009, was to be made 90 days after the completion and acceptance of the work. The contract also contained this provision:

"After the acceptance of all or any portion of the work by the common council, within ninety days thereafter, payments will be made for that portion. or all of the work accepted."

This contract was duly filed in the office of the chamberlain of the city of Rome. On the same day, August 26, 1904, the said William J. Cramond executed and delivered to the First National Bank of Rome, N. Y., an assignment, of which the following is a copy:

"For a valuable consideration to me in hand paid. the receipt whereof is hereby acknowledged, I hereby sell, assign, transfer and turn over unto the First National Bank of Rome the sum of ten thousand dollars ($10,000) with interest. of the moneys first due or to become due to me on a contract between the city of Rome and myself made and executed August 26, 1904, for the paving of E. Dominick street from First street to the Locomotive Works, the original of which contract is on file in the chamberlain's of fice of the city of Rome, and a copy of which is hereto attached and made a part hereof. And I hereby give and grant unto said the First National Bank of Rome full power and authority to collect and receive upon said contract from the said the city of Rome in my place and stead the said sum of $10,000, with interest thereon, and to take all necessary proceedings for the collection thereof, and to execute and deliver all proper receipts and vouchers therefor the same as I might or could do were not this assignment made. I hereby expressly represent that I have full power and authority to execute this assignment; that the said sum of money is to become due me from the said the city of Rome by reason of said contract; that no assignment or transfer of the moneys to become due upon said contract other than this has been executed by me, and the said the city of Rome, its common council and chamberlain, are hereby authorized and directed to pay to the said the First National Bank of Rome the said sum of $10,000, with interest thereon from the date hereof.

"Witness my hand and seal at Rome. N. Y., this 26th day of August, 1904. "William J. Cramond. (L. S.]"

August 31, 1904, this assignment, or a copy thereof, was filed in the proper office. This assignment was made in good faith, and, in fact, to secure advances of money to be made and which were made, from time to time, by the bank to said Cramond to the amount of $10,000 to enable him to pay labor and purchase material to be used and which were used in performing the contract.

On the 2d day of September, 1904, said Cramond executed and delivered to the New York Brick & Paving Company of Syracuse, N. Y., another assignment of moneys to become due on such contract with the city of Rome, to the amount of $11,000, which was filed in

said office on the same day. The material part of said assignment reads as follows:

"For a valuable consideration to me in hand paid, the receipt whereof is hereby acknowledged, and in payment for and to secure the payment of bricks delivered and to be delivered. I hereby sell, assign, transfer and turn over to the New York Brick and Paving Company of Syracuse, New York, the sum of eleven thousand dollars ($11.000) of the moneys first due or to become due to me on a contract between the city of Rome and myself made and executed August 26th, 1904, for the paving of East Dominick street from First street to the Locomotive Works, the original of which contract is on file in the chamberlain's office of the city of Rome, N. Y., and a copy of which is hereto attached and made a part hereof. And I hereby give and grant unto said New York Brick and Paving Company full power and authority to collect and receive from the city of Rome upon said contract in my place and stead of said sum of eleven thousand dollars ($11,000), or whatever amount may be due and owing for brick furnished at the price agreed upon, with interest thereon as agreed, and to take all necessary proceeding for the collection thereof and may execute and deliver all proper receipts and vouchers therefor, the same as I might or could do were not this assignment made. It is understood that the First National Bank of Rome, New York, has an assignment prior to this to secure the payment of ten thousand dollars ($10,000). 串 The said city of Rome, its common council and cham

*

*

berlain are hereby authorized and directed to pay to the said New York Brick and Paving Company the said sum of eleven thousand dollars ($11,000) out of the said moneys first due or to become due to me on said contract, subject to the rights of the said First National Bank of Rome, under the assignment above mentioned."

This was given and received in good faith as security for material, brick, to be furnished and used and which was thereafter furnished and used, to the full value of $11,000, in the performance of said con

'tract.

On the 27th day of December, 1904, said the New York Brick & Paving Company filed in the proper office a notice of lien in due form "upon the moneys of the city of Rome applicable to construction of the public improvement" described therein, being the paving mentioned and described in the aforesaid contract. The amount of the lien claimed was $11,296.20, and the notice of lien contained the following:

"The amount claimed to be due is $11.296.20, for which said lenor has an assignment to the amount of $11.000.00, leaving a balance not covered by assignments of $296.20, with interest from November 1, 1904."

On the 6th day of September, 1904, said Cramond executed and delivered to the Medina Quarry Company, of Albion, N. Y., a third assignment of moneys to become due on such contract, to the amount of $3,475.00, to secure it for curbing stone to be delivered and used and which were thereafter, to the full value of $3,475, delivered and used in the execution and performance of such contract. This assignment was also given and received in good faith and duly filed in the proper office on the same day.

On the 28th day of December, 1904, said Medina Quarry Company filed a notice of lien "upon the moneys of the city of Rome, applicable to the construction of the public improvement" therein mentioned, the pavement in question, for the sum of $3,658.90, and interest on cer