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The assessment not being paid, the real estate was sold for the non-payment, and was bid off by one Mahoney. Plaintiff then brought this action against the city of Brooklyn, Mahoney and other, to set aside the sale, and for a perpetual injunction restraining the giving or receiving of a deed, and asking that the assessment be canceled and the apportionment declared void. Held, that such action would not lie against the city of Brooklyn. Affirming judgment below. Guest v. City of Brooklyn et al. Opinion by Church, C. J.

2. Proceedings of municipal body not reviewable in equity. An action in equity will not lie to review the proceedings of municipal bodies and officers, or to correct irregularities and errors which may have been committed by it. The plaintiff in this case must seek his remedy by appeal to the Supreme Court, under the act mentioned (Laws 1869, chap. 383), or if that was not exclusive, by a common-law certiorari. Ib.

3. Proceedings of subordinate tribunals and public bodies in regard to street improvements not reviewable in equity: action to review maintainable on no ground.— There is no recognized head of equitable jurisdiction for reviewing directly the proceedings of subordinate tribunals and officers in laying out, improving or opening streets and avenues, or in laying assessments and taxes therefor, nor to correct errors therein, or to modify or vacate assessments imposed. Neither is an action maintainable on the ground of apprehended injury, for the case does not form an exception to the rule that a party must wait until his rights have been actually interfered with, before he can implead another from whom he anticipates injury, for the reason either (1) that it would prevent a multiplicity of actions, or (2) that it will prevent injury to the freehold, or (3) that it will remove a cloud from the title. Ib. [Decided May 22, 1877. Reported below, 8 Hun, 97.]

INFANCY.

1. Infant repudiating contract of sale need not return purchase-money received, if unable.-An infant sold land owned by him for $400, which sum he squandered while under age. After becoming of age he sought to rescind the contract, but was unable to restore the $400. Held, that it was not necessary for him to restore the $400, if unable to do so, but might repudiate the contract and take back the land without doing so. Judgment below affirmed. Green v. Green. Opinion by Church, C. J.

2. Acquiescence does not constitute ratification.—Mere acquiescence in the contract of sale for three years after arriving at age, without any affirmative act, held not a ratification. An entry made by defendant for the purpose of disaffirming the contract, with notice of such intention, held sufficient to entitle him to recover. [Decided May 22, 1877. Reported below, 7 Hun, 492.]

MECHANICS' LIEN.

1. Laws of 1862, chap. 478: row of houses for same owner considered one building under law. The plaintiff furnished materials for thirty houses, erected by defendant. Fifteen houses were built in one row and fifteen in another. The materials were furnished for the houses indiscriminately, no separate account being kept. Plaintiff filed a lien, under Laws 1862, chap. 478, upon all the houses, and commenced this action to foreclose it. After its commencement, in consideration of $500 paid by the owners of fifteen of the houses

forming one row, who had purchased them from defendant, which was more than the value of plaintiff's materials going into such fifteen houses, plaintiff released such houses, and the $500 was deducted from plaintiff's claims, and he sought only to enforce his lien upon the fifteen remaining houses. Held, that for the purpose of the lien the fifteen houses forming a row, being contiguous and erected and owned by one individual, could be treated as a single building, and a lien for materials used indiscriminately thereon could be filed. Judgment below affirmed. Hall v. Sheehan. Opinion by Earl, J.

2. Service of notice of lien on owner of buildings not necessary to create lien.-No notice of the lien was served upon the defendant, who was owner of the buildings until the commencement of the action of foreclosure, when it was served with the summons and complaint. Held, that under the statute (Laws 1862, chap. 478, § 1) the lien is created by the filing of the notice, and that the lien takes effect from then. The provision in section 3 of the act that "a copy of the notice shall be served on said owner," etc., has reference only to the prevention of payments by him to contractors and others, and a failure to serve notice does not affect the validity of the lien except as against such payments. Ib. [Decided April 17, 1877.]

PRACTICE.

On appeal: numerous exceptions: duty of counsel.Where counsel in their briefs ask the court to pass on numerous exceptions to rulings upon evidence (in this case upwards of 130 in number), referring to them only by the folios in the appeal book where they are found, the court cannot state its conclusions in reference to such exceptions and the reasons therefor. The counsel should aid the court by selecting the exceptions upon which he relies, and state tersely in his brief the grounds of his claim to have them sustained. Hebbard v. Haughian. Opinion by Allen, J. [Decided June 3, 1877.]

PRIVILEGED COMMUNICATION.

Knowledge coming to attorney.-Knowledge acquired by an attorney in the transaction of business between the parties to an action, and not communicated to him as an attorney to enable him to perform his duties to a client, held not within the class of privileged communications. Hebbard v. Haughian. Opinion by Allen, J. [Decided June 5, 1877.]

REAL ESTATE.

Title by possession sufficient to sustain action against adverse claimant: possession sufficient to establish title against intruder.- Plaintiff, who had taken possession of lands under a deed which gave her no title, and kept such possession three years, held, to be entitled thereby to maintain an action against defendants, who asserted a right of ownership, to compel them to show their title. Held, also, that the establishment by defendants of the fact that they were in possession of the lands long before plaintiff entered thereon, was sufficient to establish their title against plaintiff and overcome her possessory title. Possession is sufficient to answer the claim of an intruder. Judgment affirmed. Ford v. Belmont. Opinion by Rapallo, J. [Decided May 22, 1877.]

REFERENCE.

1. Finding by referee of negligence as conclusion of law: effect of.-The referee, before whom an action against defendant for negligently setting fire to plaintiff's lands by the burning of a fallow upon his own lands, instead of finding that defendant was negligent as a matter of fact, made special findings of the circumstances attending the burning, and from these circumstances found, as a conclusion of law, that defendant was guilty of negligence. Held, that if there was evidence sufficient to sustain a finding that the defendant was negligent, the manner in which the referee stated his conclusion would not authorize this court to reverse the conclusion of the referee, and decide as a question of law whether upon the facts found the defendant was negligent. Judgment below affirmed. Hays v. Miller. Opinion by Rapallo, J. (Earle and Miller dissent.)

2. Negligence usually question of fact.—Negligence is usually a question of fact, and is especially so whenever the act is such a one as that men of ordinary prudence would differ as to its character under the circumstances of the case. Ib.

3. Practice-when facts not reviewed by Court of Appeals. It is only when the judgment is reversed by the court below on questions of fact, that this court is authorized to review the facts. Ib.

[Decided June 12. Reported below, 6 Hun, 320.]

SHIPPING.

1. Collision: negligence in anchoring small boat.— While the anchoring of a vessel at an unsafe and improper place is a negligent act, and if a proximate cause of injury by being run into, will prevent a recovery for loss of the vessel or personal injury of those in charge of her, in the absence of statutory or other regulation on the subject, the court cannot determine as a matter of law that a particular place of anchorage is unsafe and improper. Judgment below affirmed. Lambert v. Staten Island Railway Co. Opinion by Andrews, J.

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2. Anchoring in track of ferry boats not negligence per se. A sail boat was anchored in the customary track of the boats of a ferry line. This track varied from three hundred to five hundred feet in width. Held, that the ferry boats had no exclusive right to the track, and the anchoring of the sail boat, with a light set, in this track, was not negligence per se. Ib.

3. Failure to carry light not conclusive evidence of negligence.-The mere fact that a vessel injured by a collision in the night time did not, at the time, carry or exhibit the lights required by the act of Congress, is not conclusive evidence of negligence, but it would be prima facie evidence of it. Ib.

4. Meaning of word "vessel "— does not include small boats.-The word "vessel," used in the regulations of the harbor masters of New York, made under the authority of Laws of 1862, chap. 487, and in common parlance, does not include small row boats or sail boats, neither does the provision of the Revised Statutes, part 1, chap. 20, tit. 10, § 12, as amended, Laws 1829, chap. 314, as to lights in vessels at anchor, apply to small, undecked, open sail boats. The only regulation as to open boats is that of the United States statutes (U. S. Rev. Stat. 822, rule 13), which provides that 66 open boats at anchor shall exhibit a bright, white light."

[Decided June 5, 1877.]

REFERENCE OF ACTION INVOLVING CLAIM FOR LEGAL SERVICES APPEALABLE

ORDER.

NEW YORK COURT OF APPEALS, JUNE, 1877.

MARTIN V. WINDSOR HOTEL COMPANY. The Court of Appeals will not review a decision of the General Term, granting or refusing a aiscretionary order. But an appeal lies from the Special to the General Term in respect to a discretionary order affecting a matter of substance. An order of the Special Term granted a reference in an action by a lawyer for services. The General Term reversed the decision, holding that the case ought not to be referred to a lawyer. Held, that the order was not appealable to the Court of Appeals.

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DAVIS, P. J. "There is no fixed rule which prevents the reference of an attorney's accounts for services to another attorney; and yet courts should be careful to avoid referring such cases to members of the same profession, when there appears upon the face of the claim good reason to suppose that the client's resistance on the ground of exorbitance and oppression may prove to be well founded. It is not because such referees will not do equal or full justice to the parties, but because of a general impression that on question of compensation for legal services lawyers may not be sometimes are not-unprejudiced in determining values. A physician is not chosen as a referee on physicians' accounts; nor are clergymen when a pastor sues for the value of his services; and so also, as to all other trades and professions, and in the popular mind it is, not without some show of reason, thought invidious, that lawyers only should be selected to determine the claims of lawyers. It is better for the profession and for the courts that this should not be so, and the honor and well being of the profession requires that lawyers should not be thought to shrink from an examination of their charges by a jury, enlightened by the opinions of other lawyers as witnesses, and by the instructions of the courts."

CHURCH, C. J. It is conceded that the action is referable under the statute, and whether it should be referred or not was discretionary with the court below, and the order is not, therefore, appealable to this court. The point insisted upon is, that the order was not appealable to the General Term. Section 349 of the Code provides, among other things, that an order is appealable from the Special to the General Term 'when it involves the merits of the action or some part thereof or affects a substantial right.' The question is, whether this order affects a substantial right. It is claimed that a substantial right within the meaning of the Code is an absolute legal right, and that a matter which is discretionary is not a substantial right, and hence not appealable to the General Term. There are judicial expressions made during the earlier period of the Code which favor this view, but it is an erroneous construction, and it has been settled that the General Term may review orders that affect substantial rights, although discretionary. Denio, J., in 29 N. Y. 418, in defining a substantial right, distin

guished it from a merely formal matter or right. It is only necessary that the order to be appealable must affect a substantial interest- -a matter of substance and not of mere form, and it may be such an order and yet be discretionary. The Code in section 11, subdivision 4, recognizes that an order affecting a substantial right may be discretionary by providing that an appeal will lie to the Court of Appeals in certain cases from an order affecting a substantial right not involving any question of discretion.' It has been urged that as the Court of Appeals will not review a discretionary order, the third subdivision of the eleventh section providing for an appeal to that court from a final order in a special proceeding 'affecting a substantial right' without the qualifying words employed in subdivision 4, above quoted, the General Term has, therefore, no power to review a discretionary order under section 349, where the same words are used. The answer to this is that the Court of Appeals refrains from reviewing such orders, when discretionary, not from any prohibition implied by the words 'substantial right,' but from the constitution and functions of the court, as an appellate tribunal restricted to a review of questions of law only, while the General and Special Terms of the Supreme Court are but different parts of the same court, of equal original jurisdiction, and the former can review and correct orders made by the latter, whether discretionary or not, provided they affect matters of substance. (Howell v. Mills, 53 N. Y. 322.) The question involved below was a right to a trial by jury or referee, and whether the parties should have the controversy determined by one tribunal or the other was a matter of substance, and hence appealable, although the court had power, in the exercise of its discretion, to order either mode of trial. The constitution of the tribunal, the mode of trial, the effect of the verdict and the mode and grounds of review are entirely unlike and affect substantial interests of the parties to the action. The constitution has protected the rights of trial by jury in a certain class of cases, and, as to others, the statute permits a reference. A reference is not an absolute right in any case. Whether the court will exercise the power conferred of referring any action which the statute authorizes to be referred depends upon all the circumstances of the case, and the exercise of the power in a given case is clearly reviewable by the General Term, but not by this court. The appeal to this court must, therefore, be dismissed."

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recover on a certain life insurance policy. That the policy was valid when issued, and that the insured is dead, are facts admitted by the insurance company; but still the company claim that the plaintiff cannot recover: First, because the policy was forfeited prior to the death of the insured, for non-payment of premiums; and second, because the plaintiff has no legal or valid interest in said insurance policy. We shall assume that said policy was not forfeited (and such would probably be our decision if we were to decide the question), and shall proceed at once to the consideration of the other question. The facts of the case, so far as it is necessary to state them, are substantially as follows: On March 16, 1870, Enoch Haynes procured from the present defendant an insurance policy on his own life, for the sum of $2,000. The premiums were made payable quarterly, on the 16th days of March, June, September and December of each year, during the continuance of said policy, and the amount of each premium was $37.58. On May 8, 1872, Haynes assigned said policy to the present plaintiff, Arthur D. Sturges, who had no interest in the life of Haynes. The insurance company assented to said assignment. The plaintiff, Sturges, afterward paid the premiums on said policy. On January 30, 1873, Haynes died, and Sturges then commenced this action against the insurance company to recover the amount of said insurance policy. Can he recover? We think not. Sturges never had any interest in the life of Haynes, but, on the contrary, his whole interest, after said assignment, was in the death of Haynes. Each year that Haynes lived, Sturges was compelled to pay out $150.32 without the slightest hope of ever receiving any thing in return therefor. He was compelled to pay that amount in order to preserve the life of his insurance policy, but no payment that he could make would ever increase the amount of the benefit which he expected finally to receive. The policy, in case of death, was worth just as much on the day of the assignment, as it ever could be afterward. If Haynes had died on the very day on which said assignment was made, the holder of the policy would have been entitled to receive just $2,000, and no payment of premiums for any length of time afterward could ever increase that amount. Nor was Haynes bound to ever refund any thing to Sturges. And nothing that Haynes might ever earn or own or receive could ever possibly go to Sturges. Sturges was not dependent upon Haynes for any support, nor was he his heir or devisee or legatee. Nor was there even the slightest tie of kindred or relationship or even of friendship binding them together and making it desirable to Sturges for Haynes to live. Sturges, in fact, had no interest in Haynes, except that Haynes should die. And as soon as that event should take place, Sturges expected to receive from the insurance company the sum of $2,000; and, of course, all his expenditures on said policy and on Haynes' life would then cease. Hence, it will be preceived that Sturges, after said assignment, had a vast interest in procuring the death of Haynes, but had no interest whatever in preserving his life. Haynes' life cost Sturges $150.32 each year, without the slightest benefit in return, while Haynes' death would be worth to Sturges $2,000, without the slightest loss or inconvenience whatever. Now, can such a state of things be tolerated by the laws of any civilized country? All insurance is in its nature a kind of wagering speculation. In the present case, the insurance contract was in the nature of a bet, for each year, of $150.32 against

$2,000, (less the $150.32 paid as premiums), that the insured would not die within the year. Or, more strictly speaking, it was in the nature of a bet, for each three months, of $37.58 against $2,000 (less the $37.58 paid as a premium), that the insured would not die within the three months. Where such contracts are associated with beneficent and modifying circumstances (as many insurance contracts are supposed to be), making them beneficial to society, they are generally upheld, notwithstanding their wagering characteristics. But where they are not associated with any such beneficent or modifying circumstances, but are left wholly in their own naked deformity as merely wagering contracts, they fall under the same merited interdiction as other wagering contracts. And above all wagering contracts, those concerning the lives of human beings should receive the strongest, the most emphatic, and the most persistent condemnation. This is just what the present insurance policy was, in the hands of Sturges-a mere wagering contract upon the life of Haynes. And if said assignment from Haynes to Sturges were to be upheld as valid under the law, it would be virtually saying that the law authorizes mere wagering speculations - mere mercenary traffic concerning human life; and it would be opening the door wide and inviting to enter the most shocking of all human crimes. If any person should desire to know what men may do where they are strongly interested in procuring the death of another person for the purpose of obtaining the benefit of a life insurance policy, he may read the case of The State of Kansas v. Winner, 17 Kan. 298, 300. While it was strongly to the interest of Sturges that Haynes should die, yet there is nothing in the record that shows that Sturges, in fact, did desire the death of Haynes. But whether he did or not, the principles governing the case are the same.

In the case of Ruse v. The M. B. L. Ins. Co., 23 N. Y. 516, it is said, that "a policy obtained by a party who has no interest in the subject of insurance, is a mere wager policy" (page 523); and "policies without interest, upon lives, are more pernicious and dangerous than any other class of wager policies, because temptations to tamper with life are more mischievous than incitements to mere pecuniary frauds " (page 526). Mr. May says, in his work on Insurance, that "all the objections that exist against issuing a policy to one upon the life of another, in whose life the former has no insurable interest, exist against his holding such policy by mere purchase and assignment from another. In either case the holder of such policy is interested in the death, rather than the life, of the insured. The policy of the law forbids such speculations based on the continuance of human life. It will not uphold a practice which incites danger to life, and it substantially declares that no one shall have any claim under a policy upon the life of another, in whose life he had no insurable interest at the time he acquired the policy, whether the policy be issued to him directly from the insurer, or whether he acquires the policy by purchase and assignment from another. If he may purchase a policy on the life of another, in whose life he has no interest, as a mere speculation, the door is open to the same practice of gambling, and the same temptation is held out to the purchaser of the policy to bring about the event insured against, as if the policy had been issued directly. It is, in fact, an attempt to do indirectly what the law will not permit to be done directly." May on Ins., § 398. See, alec, State of Kansas v. Winner, 17 Kan. 298, 300.

There are a large number of cases holding that, in order to enable any person to procure an insurance policy on the life of another, such person must have an insurable interest in the life of such other; and it has even been held that such interest must, in some sense, be pecuniary, and not founded merely upon relationship. Guardian Mutual Life Ins. Co. v. Hogan, Supreme Court of Illinois, June 30, 1876, 8 Chicago Leg. News, 382. In this case the policy was issued to John Hogan on his own life, for the benefit of his son, Patrick Hogan, who had no pecuniary interest in his father's life, and it was, therefore, held that the son had no insurable interest in his father's life, and therefore that he could not recover on the policy after his father's death.

The case of the Franklin Ins. Co. v. Hazzard, 41 Ind. 116, is identical with the case at bar in all its essential particulars. In that case Cone procured an insurance policy on his own life, and then, with the consent of the company, assigned said policy to Hazzard, who had no interest in Cone's life. The court held that Hazzard could not recover on the policy after Cone's death. See, also, Franklin Ins. Co. v. Leften, decided by the Supreme Court of Indiana in 1876.

In the present case we think, that, as Sturges had no insurable interest in the life of Haynes, he therefore could not purchase, or take by assignment, any interest in the said insurance policy issued to Haynes. That such a thing would be most clearly against the most obvious rules of public policy, and, therefore, not to be tolerated by law; and as he could not take any interest in said insurance policy, he, therefore, cannot recover in this action. Therefore the judgment of the court below must be reversed, and cause remanded for further proceedings in accordance with this opinion. Horton, C. J., concurring. Brewer, J., dissenting.

HOMESTEAD EXEMPTIONS.

SUPREME COURT OF MICHIGAN, APRIL, 1877.

BARBER V. RORABACK.

Under a homestead exemption of forty acres, if outside of a town, or, if inside, of a lot worth not more than $1,500, it is held that a subsisting right to the fortyacre exemption is not changed by the extension of municipal limits to include the land.

Comestead right.

YOOLEY, C. J. This suit involves the question of It is a suit to foreclose a mortgage on forty-six acres of land which the defendants have for nearly twenty years cultivated as a farm and occupied as a homestead. Until 1871 the land was outside the corporate limits of the village of Eatou Rapids, but those limits were extended in 1871, to include it. The land, however, is still occupied as a farm, and the value does not exceed $1,500. In the same year that the corporate limits were extended, but afterward, the mortgage was given by James E. Roraback for money borrowed; his wife, the other defendant, not signing it. Under these circumstances it is conceded that the mortgage is void as to the homestead legally claimable by defendants, and the question in controversy is, how much that homestead is.

The constitution provides that "Every homestead of not exceeding forty acres of land, and the dwellinghouse thereon, and the appurtenances, to be selected by the owner thereof, and not included in any town plot, city or village, or instead thereof, at the option of the

owner, any lot in any city, village or recorded town plot, or such parts of lots as shall be equal thereto, and the dwelling-house thereon and its appurtenances, owned and occupied by any resident of the State, not exceeding in value fifteen hundred dollars, shall be exempt," etc. It is not disputed that defendants were entitled to claim forty acres of this land as an exempt homestead prior to the extension of the village limits, but it is insisted that since the extension the right of exemption is limited to the equivalent of a town lot according to the recorded plat. This is the point in dispute between the parties.

In Wisconsin it has been decided that under circumstances like those here stated, the debtor is entitled only to a town homestead. Bull v. Conroe, 13 Wis. 233. See Parker v. King, 16 id. 228. But in the same State it is held that homestead laws must be liberally construed. Weisbrod v. Daenicke, 36 id. 73; Jarvais v. Moe, 38 id. 440, and cases cited. This is a very proper rule of construction when the benevolent purpose of the statute is had in view, and it has been adopted by other courts. Deere v. Chapman, 25 Ill. 610; Webster v. Orne, 45 Vt. 40-42; and see Beecher v. Baldy, 7 Mich.

488.

In Iowa the conclusion is that an extension of town limits, so as to bring in a county homestead, cannot deprive the debtor of his right to the full exemption as it existed before. Finley v. Dietrick, 12 Iowa, 516. In Texas the same ruling has been made. Nolan v. Reed, 38 Tex. 425; Clark v. Nolan, id. 416. The right once acquired seems to be regarded in that State as a vested right. Bassett v. Messner, 30 Tex. 604. And while it is not strictly that, it is certainly a valuable right which has been secured to the debtor for substantial reasons of public policy as well as of individual and family benefit; and an intention to modify it to the prejudice of the debtor by a statute having other purposes for its object is not lightly to be inferred. We should say that all implications must be against such an intention. Especially should this be so when the constitutional limitation of a homestead is restricted within limits so very moderate as those which are prescribed in this State.

Our opinion is that the decree of the court below should have secured to the defendants the homestead they were entitled to before the village limits were extended. As it did not do so, it must be reversed, with costs, and the record remanded for proceedings in conformity to this opinion.

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director" imply a right to bind the corporation by such an admission. Kalamazoo Novelty Manuf'g Co. v. McAlister.

2. Duties of officers: treasurer.-The general duty of the treasurer of a corporation is to collect, receive, hold and disburse the funds, and he cannot, without being specially empowered, settle and audit disputed claims for salaries for other agents of a grade similar to his own. Such duties belong to the board of directors. Ib.

CRIMINAL LAW.

Curtilage.-A barn, fifteen yards from the house and separated from it by a public highway and from the highway by a barnyard, is not within the curtilage. Curkendall v. People, Jan., 1877.

DELIVERY.

Of deed of lands.-A man executed a deed of land to his wife to delay a creditor, and it was understood that she was to use the land as occasion demanded to show ownership in herself. But the deed being left in the house within her reach, she took and had it recorded. Held, sufficient as a delivery. As courts cannot adjust equities between wrong-doers, a bill to cancel the deed was dismissed. Gage v. Gage, Jan., 1877.

ESTOPPEL.

Patent-right contract.-A patentee, after having agreed to allow a certain person to use the invention, sued out and served an injunction against him, but did not serve a subpoena with it. Held, that as it rested with the patentee to bring him into court, the patentee was estopped from denying the other's right to sue for a breach of contract on any claim, that the latter might have had the injunction dissolved by appearing in court and producing the contract. Sullings v. Goodyear Dental Vulcanite Co.

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In sale: settlement.-A vendee, who had paid partly in his own money and partly in the obligations of a corporation, sued the vendor on the ground that he had fraudulently sold him property that was not his own. There was evidence of a settlement, which, according to the vendee, covered only so much as he had paid for with his own money. Held, that a fraud is an entirety, and cannot be separated into two causes of action, at least where the transaction is single, with no reservation of rights, and that if he had settled at all it must have been for the whole claim. Allison v. Connor, Jan., 1877.

LARCENY.

1. Of baggage.-Under a statute that if one to whom delivery is made of property that may be the subject of larceny, embezzles or fraudulently converts it to

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