App. Div.]

George A. Otis, Respondent, v. John B. Porter, Impleaded with Alonzo McDonald and Walter M. Hadley, Appellants. Judgment and order reversed and new trial ordered, with costs to the appellants to abide event. Held, that the verdict was contrary to and against the weight of the evidence. All concurred.

Duncan J. McDonald, Respondent, v. The Tonawanda Iron and Steel Company and William M. Mills, Appellants.-Judgment and order reversed and new trial ordered, with costs to the appellants to abide event. Held, that the verdict, in so far as it found want of probable cause, was contrary to and against the weight of the evidence. All concurred.

The H. Remington & Son Pulp and Paper Company, Respondent, v. The Water Commissioners of the City of Watertown, Appellants. Interlocutory judgment affirmed, with costs. All concurred. Frank D. O'Keefe, Appellant, v. Ira C. Hinsdale, Respondent.-Judgment and order affirmed, with costs. All concurred, except Hiscock, J., who dissented on the ground that upon the evidence a question of fact was presented as to the item of $110, paid by plaintiff for real estate, which should have been submitted to the jury.

Margaret O'Shaughnessy, Respondent, v. The Etna Life Insurance Company, Appellant.Judgment and order affirmed, with costs. All concurred.

James Fleming, Respondent, v. Charles A. Worden, as Executor, etc., of Mary A. Robart, Deceased, Appellant.-Judgment affirmed, with costs. All concurred. Maria House and Cline E. House, Respondents, v. Lucian C. Carr, as Administrator, etc., of Cynthia Gilbert, Deceased, Appellant. Judgment affirmed, with costs. All concurred.

The City of Rochester, Appellant, v. Fourteenth Ward Co-operative Building Lot Association, Respondent, Impleaded with Thomas Baker and Others. Judgment affirmed, with costs. All concurred. Theresa Kelley, an Infant, by James E. Kelley, Her Guardian ad Litem, Respondent, v. Frontier Telephone Company, Appellant. - Judgment and order affirmed, with costs. All concurred.

The People of the State of New York, Respondent, v. Rose Creed, Appellant.- Judg. ment and order affirmed. All concurred. Minnie M. Losey, as Executrix, etc., of Charles H. Losey, Deceased, Respondent, v. Charles A. Worden, as Executor, etc., of Mary A. Robart, Deceased, Appellant. - Judgment affirmed, with costs. All concurred. Frank Cousino, Respondent, v. The Watertown Paper Company, Appellant.-Judgment and order affirined, with costs. All concurred, except McLennan, P. J., and Stover, J., who dissented.

-

Sarah J. Snowden, Respondent, v. The Town of Somerset, Appellant.-Judgment and order affirmed, with costs. All concurred. Jacob Bloom and Another, Respondents, v. Smith M. Flickinger, Appellant." Motion to dismiss appeal granted, with costs, including ten dollars costs of this motion. Mary Hartwick, Respondent, v. Edwin R. Ford and Others, Appellants.-- Motion to dismiss appeal granted, with ten dollars costs, unless within fifteen days the appellant shall file and serve the printed papers on appeal as provided in rule 41,* and pay to respondent's

attorney ten dollars costs of this motion, in which event the motion is denied. Fred D. Maldoon, Respondent, v. The Jefferson Power Company, Appellant.— Judg. ment and order affirmed, with costs. All concurred, except Williams and Stover, JJ., who dissented.

Alice Marquette, Respondent, v. Watertown Thermometer Company, Appellant.— Judg. ment and order affirmed, with costs. All concurred.

In the Matter of the Application of Frank P. Wilder and the Carthage Sulphite Pulp Company, Appellants, for the Appointment of Commissioners to Assess the Damages of Riparian Owners on Deer River, Respondents, Pursuant to Chapter 565 of the Laws of the State of New York for 1903.- Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Held, that, without in any manner passing on the merits of the award herein, it does not seem necessary, upon the facts disclosed by the record in this proceeding, to send the report back to the commissioners to have detailed findings made by them. All concurred. International Silver Company, Respondent, v. Orlando F. Thomas, Appellant. - Order modified by providing that examination of the witnesses produced by the plaintiff be continued from day to day until completed; that such examination be concluded on or before July 1, 1905, and that in case such examination occupies more than five days, the plaintiff be required to pay to defendant's attorney ten dollars for each day in excess of five so occupied, in addition to the sum specified in the order appealed from; and as so modifled affirmed, without costs of this appeal to either party. All concurred, except Williams, J., who dissented on the ground that under the facts of this case the granting of an open commission was an improper exercise of discretion and the order should be reversed and the motion denied. The People of the State of New York, Respondent, v. Charles M. Briggs, Appellant.-Order affirmed, with ten dollars costs and disbursemen s. All concurred.

ten

Edward Gabel, Appellant, v. Anna E. Williams, Respondent. Order affirmed, with dollars costs and disbursements. All concurred.

Solomon Morrison and Samuel Risman, Respondents, v. Daniel York, Appellant.Order affirmed, with ten dollars costs and disbursements. All concurred, except Williams and Hiscock, JJ., who dissented. Clarence Ten Eyck, as Receiver in Proceedings Supplementary to Execution of the Property of Sarah A. Bookman, Appellant, v. Lucinda Bookman and Rebecca Gambee, Respondents, Impleaded with Others.-Order modified so as to provide as a condition of permitting defendants to answer that they be required to pay the costs and disbursements awarded by this court on the former appeal herein, together with the costs and disbursements on this appeal, and as so modified said order is affirmed, with ten dollars costs and disbursements to the plaintiff. All concurred, except Williams, J., who dissented, voting for affirmance on the ground that no order or judgment has ever been entered on the decision of the Appellate Division or served on the defendants, so as to require compliance therewith under section 1355 of the Code of Civil Pro

App. Div.]

cure the case to be settled, signed and filed, and file and serve the printed papers on appeal as provided by rule 41,* in which event said motion is denied.

James S. Howard, Respondent, v. The City of Fulton, Appellant.-Motion to dismiss appeal denied, without costs; the former order herein upon similar motion is permitted to stand.

John Turck, Respondent, v. Rachael Robinson, Appellant.-Judgment and order affirmed, with costs. All concurred, except Williams and Stover, JJ., who dissented. Joseph Moore, Appellant, v. William S. Sanford, Respondent. - Judgment of County Court reversed, with costs, and judgment of the Justice's Court affirmed, with costs. Held, that upon the facts of this case the declarations of the vendor were properly excluded by the justice. All concurred. Bertha M. Claassen and Charles E. Claassen, as Administrators, etc., of Albert F. Claassen, Deceased, Appellants, v. Empire Beet Sugar Company. Respondent.-Judgment and order affirmed, with costs. All concurred. Fred Taylor, as Administrator, etc., of Samuel Taylor, Deceased, Respondent, v. George Taylor, Appellant.- Judgment affirmed, with costs. All concurred, except Stover, J.. not voting.

In the Matter of the Assignment of Michael C. Tomney, Respondent, for the Benefit of His Creditors. Celia B. Tucker, as Assignee, etc., of Michael C. Tomney, Appellant.-Order, in so far as appealed from, affirmed, with ten dollars costs and disbursements. All concurred, except Stover, J., not voting. Mary Bringley, Appellant, v. John Grape, Respondent. Order affirmed, with ten dollars costs and disbursements. All concurred, except Storer, J., not voting. August Meyer, Plaintiff, v. American Radiator Company, Defendant.- Plaintiff's exceptions overruled, motion for a new trial denied, and judgment ordered for the defendant on the verdict, with costs. All concurred. William A. Light, as Administrator, etc., of Olin N. Light, Deceased, Appellant, v. Utica and Mohawk Valley Railway Company, Respondent. Judgment and order affirmed, with costs. All concurred, except Hiscock, J., not voting.

Milo Burns, Respondent, v. Old Sterling Iron and Mining Company, Appellant.-Judg. ment and order affirmed, with costs. All concurred, except Stover, J., not voting. George C. Broadbooks and Wesley Ranger, Appellants, v. Elward D. Tolles, Respond. ent. Order modified by requiring the plaintiff to furnish a bill of particulars stating the times, places and character of the goods claimed to have been sold, and also the names of the purchasers when known, and as so modified affirmel, without costs of this appeal to either party. All concurred, except McLennan, P. J., and Williams, J., who dissented and voted for reversal of the order.

Harvey J. Hurd and James T. Hurd, Respondents, v. Frederick K. Wing, as Administrator, etc., of George Wing, Deceased. Appellant. Judgment affirmed, with costs. concurred.

All

Peter Thaney, as Administrator, etc., Appellant, v. A. Friederichs & Sons Company, Respondent.-Judgment and order affirmed. with costs. All concurred, except Hiscock, J., who dissented on the ground that defendant's negligence and plaintiff's freedom from contributory negligence were ques tions of fact which should have been submitted to the jury.

James S. Thompson, as Permanent Receiver of the Union Iron Works, Buffalo, New York, Respondent, v. Erie Railroad Company, Appellant. Order affirmed, with ten dollars costs and disbursements. All concurred, except McLennan, P. J., who dissented, and Hiscock, J., not voting.

Amelia W. Stephens, Respondent, v. Joseph H. Kaiser, Appellaut. Order affirmed, with ten dollars costs and disbursements. All concurred, except Stover, J., not voting. Margaret O'Malley, Respondent, v. Thomas O'Malley, Appellant.-Order reversed and motion denied, without prejudice to plaintiff's right to make another motion, without costs to either party. All concurred. Commercial National Bank of Syracuse, Appellant, v. Martha E. Zimmerman, as Administratrix, etc., of Joseph A. Zimmerman, Deceased, Respondent, Impleaded with Syracuse Construction Company. Judgnient affirmed, with costs. All concurred. In the Matter of the Application of the Utica and Mohawk Valley Railway Company, Respondent, Relative to Acquiring Title to Certain Real Estate of Frank Spohn and Cora Spohn, His Wife, Appellants, in the Village of Herkimer, Herkimer County, N. Y., for the Purpose of Constructing, Maintaining and Operating a Street Surface Railroad Thereon for Public Use.- Order affirmed, with costs. All concurred. William McDonald, Respondent, v. Hiram M Mirick, Appellant.-Judgment affirmed, with costs. All concurred.

George Milage, Appellant, v. Charles E. Woodward, Respondent.- Order reversed, with costs, and motion for new trial denied. All concurred, except Williams, J., who dissented.

Edward J. Stape, Appellant, v. Maurice F.
Danily, as Executor, e c., of Annie Danihy,
Deceased, Respondent, Impleaded with
Rochester Savings Bank. - Judgment af-
firmed, with costs. All concurred.
Louis House and Others, Appellants, v. Car-
bonating Apparatus Company, Respondent.
-Judgment and order affirmed, with costs.
All concurred.

George W. Ceigler, Respondent,v. Hopper-Morgan Company, Appellant.- Judgment and' order affirined, with costs. All concurred. John Conboy, Respondent, v. De Lancey B. Armstrong, Appellant, Impleaded with Others. Judgment modified so as to provide: (1) That plaintiff is entitled to, and defendants, within ten days after entry of judgment upon this decision, are required to execute and deliver, a warranty deed and abstract of title showing a good, marketable title, instead of one absolutely free and clear of incumbrance of every name and nature;' (2) that immediately upon compliance with said requirements the plaintiff shall pay to the defendants the sum of $7.500; (3) that the defendant Laura Jane Armstrong possesses simply a lif estate in the real property in question, without any right to use up and appropriate for her own personal benefit and enjoyment any part or all of the fee therein, with the power for the accomplishment of that pur pose to sell and convey any part or all of the real estate; and that the interests of the defendants De Lancey B Armstrong and Alice Armstrong are not subject to any such contingency or right. And as so modi. fied said judgment is affirmed, without costs of this appeal to either party as against the other. Order to be settled by and before Mr. Justice Williams, on two days notice. All concurred.

Jane D. Keeney and Helen D. Keeney, Appellants, v. Auna Buck and Others, Respondents. Judgment affirmed, with costs. All concurred.

In the Matter of the Application of the Lyons Cemetery Association, Respondent, to Acquire Title to Certain Real Estate Owned and Possessed by Amelia Smart, Appellant. -Judgment and order affirmed, with costs. All concurred, except Stover, J., who dissented on the ground that the statute has not cured the objections held by the Court of Appeals in Matter of Deansville Cemetery Association (66 N. Y. 569) to be fatal to the application.

New York, Lackawanna and Western Railway Company, Respondent, v. The People of the State of New York and The City of Buffalo, Appellants.-Judgment and order affirmed, with costs. All concurred.

J.

Gustof Hagen, as Administratrix, etc.. Respondent, v. New York Central and Hudson River Railroad Company, Appellant.- Order reversed, with costs, and motion for new trial denied. Held, that on the merits the order should not have been granted, and also that it was improper to consider on the motion the affidavits of the jurors. Martin J. Frick and Oliver J. Eggert, as Executors, etc,, of Martin Frick, Deceased, and Others, Respondents, v. Myra Schenck and Ada E. Schenck, Individually and as Executrices, etc., of Myra J. Schenck, Deceased, and Others, Appellants.-Judgment modified by adding at the end of the first adjudging clause thereof the following: "But the question whether or not the farm mentioned in the first item of the will of said John Frick, deceased, became a part of the estate of said John Frick upon his death, or thereupon vested in his said widow, Susan Frick, as tenant by the entirety, is left to be determined on the coming in of the referee's report upon the reference herein ordered, and so modified affirmed, with costs." All concurred, except Stover, J., not voting.

In the Matter of the Probate of the Will of Caroline Sullestad, Deceased.- Motion to dismiss appeal granted, unless the appellant, within sixty days from the date of service of a copy of the order entered hereon, together with notice of entry thereof, file and serve the printed papers on appeal as required by rule 41,† and perfect the appeal herein by serving notices thereof on Amelia Larson, Christina Johnson and Karl Lind, respondents and next of kin, as provided upon the settlement of the order herein, leave to so perfect which said appeal being hereby granted. The form of the order and the manner and time of making such service to be settled by and before Mr. Justice McLennan on two days' notice. Harriet Gessler, Appellant, v. Lehigh Valley Railroad Company, Respondent.- Motion for reargument granted unless within ten days after service of a copy of this order, together with notice of entry thereof, the respondent files and serves upon the appellant's attorneys a stipulation consenting to the amendment of the judgment appealed from and also the order and judgment of affirmance on appeal by striking therefrom the recital and judgment that the complaint be dismissed on the merits, in which event the motion is denied.

International Silver Company v. Orlando F. Thomas.- Motion for leave to appeal to the

costs.

[Vol. 105.

Court of Appeals denied, with ten dollars Solomon Morrison and Another, Respondents, v. Daniel York, Appellant.- Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs. Joseph A. Jones, Respondent, v. Stephen R. Cole, Appellant.- Motion for lea e to appeal to the Court of Appeals granted and question to be reviewed certified.

In the Matter of the Application of Mary V. Scanlon to Continue Certiorari Proceedings Against Erastus C. Knight and Others, as, etc. - Decision of motion held until the 6th day of July, 1905, to enable said Mary V. Scanlon, if she shall be so advised, to apply to the Surrogate's Court for further letters of administration and to present additional proof of her authority to prosecute said proceeding if leave so to do is given.

Frederick W. Kuehn Respondent, v. Syracuse Rapid Transit Railway Company, Appellant.

Motion to amend order of this court heretofore entered herein granted. Motion for leave to appeal to the Court of Appeals granted. Form of the order and questions to be certified to be settled by and before Mr. Justice Hiscock on two days' notice. Thomas J. Hayward and Others v. Empire State Sugar Company and Others.- Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs, upon the ground that an appeal may be taken as of right. Adelbert D. Risley, Respondent, v. Charles H. Harlow and Others, Defendants, Impleaded with Robert M. Thompson Appellant.Order modified by striking out the names of George H. Newhall and Richard E. Lyman as persons to be examined; also by limiting persons to be examined other than those named in said order to those residing in Rhode Island and connected or purporting to have been connected, as incorporators or otherwise with the Nautical Preparatory School; also by changing the time for said examination from May 1 to 6, 1965, to July 5 to 12, inclusive; also by providing tha at least two days before the date when said examination is to commence plaintiff shall pay to the counsel agreed upon by the defendants, if any, the sum of $150, expenses and counsel fee for attending the execution * of said commission, and as so modified said order is affirmed, without costs. All concurred, except Williams, J., who dissented and voted for absolute reversal of the order, upon the grounds: (1) That there is no suf ficient reason shown in the moving papers why an order for an open commission should be granted at all, and (2 upon the ground that the order, as provided for, is not in compliance with the express provisions of the Code of Civil Procedure, which directs what the order should be. (Code Civ. Proc. §§ 897, 898.) Stover, J., agreed with Williams, J., upon the first objection.

In the Matter of the Disposition of Real Proper y of Henry Taylor, Deceased, for the Payment of His Debts and Funeral Expenses. Dwight A. Taylor, Appellant; Charles T Kilham, as Executor, etc., of Henry Taylor, Deceased, Respondent. Decree modified in accordance with the holding of this court, and as modified affirmed, with costs. Held, that the agreement of June 29, 1885, bound the representatives of Henry Taylor, deceased; that a sale of forty acres to pay debts will be a sale for the use of the said

[Rep.

+ General Rules of Practice.- [REP.

App. Div.]

Henry Taylor's representatives, and upon | such sale Dwight A. Taylor is entitled to the payment of the sum of $849.69; that upon such sale said sum of $849.69 is an equitable lien upon said forty acres and should have priority of payment over all other claims. The form of the order to be settled by and before Mr. Justice Williams on two days' notice All concurred, except McLennan, P. J., and Hiscock, J., who voted for affirmance of the decree with out modification.

In the Matter of the Judicial Settlement of the Accounts of Charles T. Kilham, as Executor, etc., of Henry Taylor, Deceased.-Decree modified in accordance with the holding of the court in Matter of Taylor (ante, p. 628) and as so modified affirmed, with costs. All concurred, except McLennan, P. J., and Hiscock, J., who vcted for affirmance of the decree without modification. Order to be settled by and before Mr. Justice Williams on two days' notice. Walstein F. Brown, Appellant, v. Aaron Cohen and I aac Cohen, Respondents.- Judgment of County Court reversed, with costs, and that of Justice's Court affirmed, with costs. All concurred, except Stover, J., who dissented.

John E. Livermore, Appellant, v. Charles C. Robley, Respondent. Judgment affirmed, with costs. All concurred.

John Venman, Respondent, v. Joe Chiodo, Appellant.- Judgment and order affirmed, with costs. All concurred.

The People of the State of New York, Respondent, v. Eugene McCarthy, Appellant.Judgment of conviction and order affirmed. All concurred.

In the Matter of the Application of Sampson Walker, Respondent, for the Appointment of a Committee of the Person and Property of Mary Walker, an Alleged Incompetent, Appellant.- Order affirmed, with ten dol lars costs and disbursements. All concurred, except McLennan, P. J., and Stover, J., who dissented.

Owen McNally, Appellant, v. James E. Mansfield, as Mayor of the City of Oswego, and Others, Respondents.- Judgment affirmed, with costs. All concurred, except Stover, J., not voting.

Oliver A. Kingsbury and John E. Brandegee, as Executors, etc., of Amy J. Perkins, Deceased, Respondents, v. John E. Brandegee, as Executor, etc.. of Henry S. Miller, Deceased, and Others, Respondents, and John Cunneen, Attorney-General of the State of New York, and Others, Appellants. Ordered, that the decision of the appeal herein be, and the same is hereby, suspended until the further order of this court, and that the appellants have permission to apply at a Special Term of the Supreme Court for leave to serve a case herein; said application to be made with due diligence.

The People of the State of New York ex rel. Adolphus E. Cowles, Relator, v. The Board of Supervisors of Allegany County, New York, Respondent.- Determination of the board of supervisors modified so as to allow the claim of the relator at the sum of $290, with interest thereon from the 11th day of January, 104, and as so modified said determination is confirmed, without costs to either party, on the opinion of Mr. Presiding Justice McLennan, in People ex rel. Herrick v. Board of Supervisors (ante, p. 40). All concurred. Frederick W. Kuehn, Respondent, v. Syracuse Rapid Transit Railway Company, Appellant. -Order denying motion for new trial on the order to show cause affirmed, with ten dollars costs and disbursements, on the opinion of Williams, J., in same case on appeal from judgment and order denying motion for new trial on the minutes. (104 App. Div. 580.) All concurred, except Spring and Hiscock, JJ., who dissented in opinion and memorandum written by them respectively on appeal from judgment and order denying motion for new trial on the minutes.

In the Matter of the Election of a Trustee of the Pleasant Valley Society. Myron Ellis, Appellant; Herbert J. Haith, Respondent. -Order reversed, with ten dollars costs and disbursements, and proceeding dismissed, without costs. Opinion by Williams, J., in which all concurred, except McLennan, P. J., and Hiscock, J., who voted for reversal and for a rehearing before a referee to take the evidence and report with his opinion thereon.*

be noted at the foot of the judgment. Our decision affirming the Special Term order granting the preliminary injunction in this case (95 App. Div. 632) necessarily involved the conclusion that the city was entitled to this relief upon the facts then presented for the consideration of the court. No material difference in the facts is made to appear upon this appeal. It follows that the judg ment should be affirmed. Present - Bartlett, Woodward, Jenks and Rich, JJ. Arabella D. Huntington and Charles H. Tweed, as Executors, etc., of Collis P. Huntington, Deceased, Respondents, v. Sylvester H. Kneeland and Others, Appellants.- Motion for reargument denied.-- Motion for a reargu

ment.

WOODWARD, J.: The appellants move for a reargument upon the theory that this court has misapprehended the facts in this case. The rights of both parties, certainly those of the appellants, depend upon the character