bundles were the proximate cause of the accident; that, if the plaintiff was in an unreasonable use of the highway, then he was called upon to use ordinary care to avoid an injury by colliding with such an object in the street. It was practically conceded on the trial that the automobile collided with a bundle of papers, ran 70 or 80 feet, struck an iron trolley pole 9 inches wide and 7 inches thick, made of quarter-inch, rolled iron, breaking such pole square off 6 inches above the pavement, turned twice around after colliding with the pole, breaking the body loose from the frame, and practically destroying the automobile. It was established beyond question that this automobile, running at the rate of 20 miles an hour, could be stopped within 30 feet. It was a fair, legitimate inference for the jury that the plaintiff was thrown from the automobile by the collision with the trolley pole by reason of the terrific impact, and that, had plaintiff been going at a reasonable rate of speed, he would have received no injury from · the collision with the newspapers. The fact that the defendant created a nuisance in the highway does not make it liable to one who, in a reckless and unreasonable use of the highway, is injured by the nuisance; and, while it may be that in action for damages occasioned by a nuisance the plaintiff is not obliged to prove an absence of contributory negligence, yet if it appears that the recklessness of the injured person was the proximate cause of the injuries, all authorities hold that there can be no recovery. The evidence would warrant a finding that the automobile was rushing through the street at the rate of 50 or more miles an hour, and the only wonder is that all the occupants were not instantly killed. The plaintiff, participating in such insane business, cannot be heard to say that he was not called upon to exercise any care, and that while in such unreasonable use of the highway he had a right to assume that the highway was safe. [4] The mere fact that plaintiff rode in the automobile 1,500 feet from Delevan street to Jefferson street in something like 20 seconds, without remonstrance or even a suggestion to the driver that he stop the car or slacken its speed, places on the plaintiff all the recklessness or contributory negligence needed to sustain a finding of a jury that he was in an unreasonable use of the highway, and his failure to attempt to restrain the driver from pursuing such a madcap pace would warrant the jury in finding complete acquiescence on his part in the driver's negligence or carelessness, and render him answerable therefor. Motion denied. BERKELEY v. DUSENBERRY et al. (Supreme Court, Appellate Division, First Department. May 5, 1911.) BANKRUPTCY (§ 390*) - FILING OF PETITION IN BANKRUPTCY — EFFECT ON PENDING ACTION BY BANKRUPT. Bankr. Act July 1, 1898, c. 541, § 11a, 30 Stat. 549 (U. S. Comp. St. 1901, p. 3426), does not require that the prosecution of an action by one suing for professional services shall be stayed on the filing of a petition of bankruptcy against him, until the dismissal of the petition or until the appointment of a trustee in bankruptcy, in the absence of a showing of special reasons therefor. [Ed. Note. For other cases, see Bankruptcy, Dec. Dig. § 390.*] Appeal from Trial Term, New York County. Action by Lancelot M. Berkeley against Frank M. Dusenberry and another. From an order denying a motion to set case down for trial, defendants appeal. Reversed, and motion remitted. See, also, 128 N. Y. Supp. 1113. Argued before INGRAHAM, P. J., and MCLAUGHLIN, SCOTT, MILLER, and DOWLING, JJ. Max D. Steuer, for appellants. SCOTT, J. The defendants appeal from an order at Trial Term denying their motion to place this cause upon the day calendar for trial, and staying all proceedings therein. The defendants are the executors of one Sarah J. H. Choate, deceased, and are being sued by plaintiff, a lawyer, for a considerable sum of money claimed to be due for services rendered in and about the business of said estate. It appears that the winding up of the estate is held up during the pendency of the action. The defendant Bushby, formerly a partner of plaintiff, has filed a petition in bankruptcy against him. Plaintiff has answered, and the issues raised by the petition and answer have been referred to a master, before whom the matter is now pending. No adjudication of bankruptcy has been made, and, of course, no trustee has been appointed. The plaintiff insists that the pendency of the bankruptcy proceedings against him requires, of necessity, that the action be stayed until either the petition against him be dismissed, or a trustee of his property is appointed, who can determine whether to prosecute this action or abandon it. The argument is that upon the filing of the petition in bankruptcy the plaintiff became civiliter mortuus, so far as concerns the prosecution or defense of suits at law. This is undoubtedly true, so far as regards actions against him founded upon claims from which a discharge would be a release. Bankr. Act July 1, 1898, c. 541, § 11a, 30 Stat. 549 (U. S. Comp. St. 1901, p. 3426). It is also true of any action against him, which might result in diminishing the estate which will come into the hands of his trustee when appointed. But the letter of the bankruptcy act does not prohibit the prosecution of actions in behalf of the bankrupt the result of which will be, if successful, to enhance his estate; nor has the industry of counsel found any authority to the effect that the filing of a petition in bankruptcy, alone, is a sufficient reason for staying, on the motion of the alleged bankrupt, an action in which he is plaintiff. Nor do we consider such a case to be within the reason of the law, as it is clearly not within its letter. There may be cases, of course, in which, for special reasons, the prosecution even of an action in which the alleged bankrupt is plaintiff should be stayed until the appointment of a trustee; but the present case does not present any such reasons. •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes The order appealed from must therefore be reversed, with $10 costs and disbursements, and the motion remitted to Trial Term, to set the cause down for trial. All concur. BISCHOFF v. PACKARD et al. (Supreme Court, Appellate Division, First Department. May 5, 1911.) 1. PLEADING (§ 349*)—REPLY-JudgmentT FOR FAILURE TO REPLY. Where, after issue joined, the defendants procured an order, under Code Civ. Proc. § 516, requiring plaintiff within 20 days to reply to an affirmative defense, which plaintiff failed to do, the defendants were entitled to judgment dismissing the complaint on the merits; the failure to reply being an admission of the facts alleged as a defense. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1067-1069; Dec. Dig. 349.*] 2. JUDGMENT (§ 713*)-CONCLUSIVENESS. Where plaintiff gave a note to defendants, and assigned an interest in his grandfather's estate as collateral security therefor, and defendants brought an action on the note, and summons was served on the plaintiff, and the issues were decided therein for the defendants, the judgment conclusively determined the validity of the debt represented by the note, as well as the amount due, and plaintiff cannot afterwards claim that the transaction was usurious and void, and ask for a cancellation of the assignment, as the assignment was a mere incident to the debt, and could not be separated from it. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1234-1241; Dec. Dig. § 713.*] 3. JUDGMENT (§ 713*)-CONCLUSIVENESS. A judgment obtained without fraud or collusion is conclusive between the parties to an action as to all the matters which were or might have been litigated. [Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 1234–1241 ; Dec. Dig. § 713.*] Appeal from Special Term, New York County. Action by Ernest W. Bischoff against Nathan J. Packard and another, impleaded with defendants. From an order denying a motion for judgment on the pleadings, defendants Packard and another appeal. Reversed, and motion granted. Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, MILLER, and DOWLING, JJ. Samuel Packard, for appellants. MCLAUGHLIN, J. This action is brought to procure a judgment that a note given by the plaintiff to the defendants and an assignment of his interest in his grandfather's estate as collateral security for the payment of the same are usurious and void, and for a cancellation of the assignment. The defendants as an affirmative defense alleged that they brought an action against this plaintiff in the City Court of the city of New York upon the note referred to in the complaint, and there procured on the 16th of December, 1908, a judgment against him for the amount due upon the note with interest, that the summons in that action was personally served on this plaintiff, and all the issues in this action were conclusively resolved in favor of these defendants. [1] After issue had been joined, the defendants procured an order requiring the plaintiff, within 20 days after the service of the same upon him, to reply to this affirmative defense. He failed to reply, and thereupon they moved for judgment on the pleadings dismissing the complaint on the merits. The motion was denied, and the defendants appeal. The note was the principal obligation. The assignment was given as collateral security for its payment. [2] The judgment in the City Court finally and conclusively determined, the summons having been personally served on the defendant and no appeal having been taken from the judgment, the validity of the debt represented by the note, as well as the amount due. The existence of the debt and the validity of the note, as well as the validity of the assignment, cannot now be questioned. The assignment was a mere incident to the debt given solely as collateral security for its payment. It cannot be separated from the debt and exist independently of it. Manhattan Life Ins. Co. v. Johnson, 188 N. Y. 108, 80 N. E. 658, 9 L. R. A. (N. S.) 1142; Merritt v. Bartholick, 36 N. Y. 44. In Manhattan Life Ins. Co. v. Johnson, supra, a mortgage on property in this state was given to secure the payment of promissory notes payable in Massachusetts, and it was urged, notwithstanding the notes were valid in Massachusetts, nevertheless the mortgage was void for usury in the state of New York. The court held that, the notes being valid in Massachusetts, the mortgage could not be here attacked. Judge Gray, who wrote the opinion, said: "The giving of security was but an incident of the agreement of the parties, for it was but a means of securing what was agreed to be done. It did not affect the fulfillment of the agreement, and, if that is unassailable, how can the defense of usury in the agreement for the loan or forbearance of money be made out? Manifestly it cannot be. The borrower could not show that the loan to him was so affected by usury that the repayment of the principal sum was unenforceable. The legal fulfillment of a contract of loan on the part of the borrower is repayment of the money and the security given is but the means of securing what he has contracted for." * * When the plaintiffs in the action in the City Court proved the note and established its validity by the judgment there rendered in their favor, this plaintiff could not thereafter, without setting aside that judgment, question the validity of the assignment. [3] A judgment obtained without fraud or collusion is conclusive between the parties to an action as to all the matters which were or might have been litigated. Nicholas v. Lord, 193 N. Y. 388, 85 N. E. 1083; Reich v. Cochran, 151 N. Y. 122, 45 N. E. 367, 37 L. R. A. 805, 56 Am. St. Rep. 607; Carpenter v. Osborne, 102 N. Y. 552, 7 N. E. 823. The plaintiff in the City Court had an opportunity to litigate the question as to whether the loan were usurious, but he did not see fit to do so. He permitted the plaintiffs to establish the validity of the note and take a judgment for the amount due. That judgment is a complete defense to the cause of action set out in the complaint. The plaintiff, by not replying to the affirmative defense, as he was directed to do, thereby admits all of the facts set forth as true. These facts all being admitted, defendants were entitled, under section 516 of the Code of Civil Procedure, to judgment dismissing the complaint on the merits. The order appealed from, therefore, is reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. All concur. HILGENBERG v. GREAT EASTERN CASUALTY & INDEMNITY CO. OF NEW YORK. (Supreme Court, Appellate Division, First Department. May 5, 1911.) COSTS (§ 109*)-SECURITY FOR COSTS-REQUIRING FROM ADMINISTRATOR. Where ancillary administration was taken out in this state for the sole purpose of suing on an accident policy held by a resident of another state at his death, there being no assets in this state but the cause of action on the policy, the motion of the insurer for security for costs, under Code Civ. Proc. 3271, permitting the court in its discretion to require such security from an administrator, was improperly denied, in the absence of special reasons for such action. [Ed. Note. For other cases, see Costs, Cent. Dig. §§ 439-461; Dec. Dig. § 109.*] Appeal from Special Term, New York County. Action by George Hilgenberg, as ancillary administrator of Frederick William Hilgenberg, deceased, against the Great Eastern Casualty & Indemnity Company of New York. From an order denying a motion for security for costs, defendant appeals. Reversed, and motion granted. Argued before INGRAHAM, P. J., and McLAUGHLIN, SCOTT, MILLER, and DOWLING, JJ. Samuel H. Guggenheimer, for appellant. MCLAUGHLIN, J. One Hilgenberg, a resident of New Jersey, died on the 4th of February, 1910. Letters of administration were on the 7th of September following issued upon his estate to this plaintiff, who, on the 21st of the same month, obtained ancillary letters of administration in the state of New York. The intestate at the time of his death held an accident policy to the amount of $5,000, issued by the defendant, and upon which a recovery is here sought. When application was made for ancillary letters, a statement was made to the effect that the intestate had no property in the state of New York other than the cause of action upon the policy referred to, and for that reason letters were issued without requiring any security. On the 1st of August, 1910, the plaintiff commenced this action by the service of a summons, and some time thereafter served the complaint. After the complaint had been served, the defendant moved, under section 3271 of the Code of Civil Procedure, that the plaintiff be required to give security for costs. The motion was denied, and defendant appeals. This section of the Code pro |