and 100 New York State Reporter other against the Humboldt Library. From an order refusing defendant a new trial after judgment by default, except on certain conditions, it appeals. Reversed in part. Max D. Steuer, for appellant. Frayer, Smith, White & Seaman, for respondents. HASCALL, J. We think, under all the circumstances disclosed by the papers, that a considerate administration of justice requires modification of the order appealed from, and conclude that the defendant may have a trial before the jury. Upon payment of $10 motion costs by the defendant, the order complained of will be modified by opening the default upon which judgment was entered for the purpose and to the extent of enabling defendant to present its defense at trial term at some convenient, but early, day, which should be within the fortnight after the announcing of this decision; but judgment to stand for security, and all proceedings on both sides and by the sheriff to be held and stayed until after verdict or other disposal of the issues by the court at trial term. To this extent the order appealed from will be reversed, and the relief above indicated accorded thereupon by such modification, with costs and disbursements of this appeal to abide the event. If the conditions hereby imposed be not complied with, then the order appealed from will be affirmed, with costs and disbursements absolute to respondent. CONLAN, J., concurs. JENKINS, Respondent, v. HUMBOLDT LIBRARY, Appellant. (City Court of New York, General Term. October 29, 1900.) Action by Henry C. Jenkins against the Humboldt Library. From an order vacating a stay, defendant appeals. Reversed. Max D. Steuer, for appellant. Frayer, Smith, White & Seaman, for respondent. HASCALL, J. Under the authorities (Peet v. Cowenhoven, 14 Abb. Prac. 56; Wait, Prac. 606), this order will be reversed, without costs. We write at this term, under the same title. on appeal from another order herein (66 N. Y. Supp. 1133) directly involving the status of the parties after judgment, and adjust the same for a trial upon the merits, deeming such a course the most expeditious in the administration of justice between these litigants. der reversed, without costs. CONLAN, J., concurs. Or In re JONES. (Supreme Court, Appe vision, Fourth Department. May Term In the matter of the alleged intrusion raim Jones upon Indian lands. No Appeal dismissed, under general rule 34 KATZ, Appellant, v. INDIA-RUBBER Respondent. (Supreme Court, Appellate sion. First Department. July 17, 1990) A by Edward A. Katz against the IndiaCompany. M. H. Ellison, for appelant Kling, for respondent. No opinion. Ore firmed, with $10 costs and disbursements 65 N. Y. Supp. 1137. KELLER, Respondent, v. SIMM et al., A lants. (Supreme Court, Appellate Term vember 7, 1900.) Action by Maurice S. E against George Simm and another. F judgment for plaintiff, defendants appeal firmed. _Blumenthal, Moss & Feiner, for lants. J. Goode, for respondent. PER CURIAM. The action is not ca equity, and the municipal court had jurisdici. to entertain it. Upon the evidence we are disposed to interfere with the finding of the 2 tice that there was a written memorand lease. The defendants failed to show eviction, or acceptance of a surrender of premises, or an agreement to release one of defendants and look to the other. Judgment firmed, with costs. KELLY, Respondent, V. BROOKLY HEIGHTS R. CO., Appellant. (Supreme Co Appellate Division, Second Department. O ber 19, 1900.) Action by Mary Kelly ag the Brooklyn Heights Railroad Company. opinion. Judgment and order (64 N. Y. S 64) unanimously affirmed, on reargument 65 N. Y. Supp. 430. KENT v. WEST._(Supreme Court, Appel May Tea Division, Fourth Department. 1900.) Action by Charles S. Kent against Is S. West, as committee, etc. No opinion. tion denied, with $10 costs. All concur, ex MCLENNAN, J., not voting. KETCHAM, Appellant, v. KETCHAM. Re spondent. (Supreme Court, Appellate Divisi Second Department. October 5, 1900.) Acti by Emma A. Ketcham against Warren A. Ketcham. No opinion. Order modified, on gument, so as to direct the issue of alanl ment also to be tried by jury, and, as me affirmed, without costs. 1108. See 59 N. Y. S KING, Respondent, v. GOSSEL, Appellart (City Court of New York, General Term. O tober 29, 1900.) Action by Nellie King agai Henry Gossel. From an order denying defe ant's motion for leave to serve an amended answer, defendant appeals. Reversed. Carer Hughes & Dwight, for appellant. Daniel W Patterson, for respondent. CONLAN, J. This is an appeal from an of der, made at special term, denying defendant's motion for leave to serve an amended answer We are satisfied, on examination, that the lant should be allowed to serve his proposed KINNEY, Appellant, v. REID ICE-CREAM ., Respondent et al. (Supreme Court, Appele Division, Second Department. October 5, 0.) Action by Joseph R. Kinney against the id Ice-Cream Company, impleaded with Wilm J. Weller and William M. Reger, defendts. No opinion. Motion to dismiss appeal anted, unless the plaintiff pay $10 costs withfive days, and perfect the appeal, so that may be heard on the 22d inst. KLINGER, Appellant. V. MARKOWITZ, espondent. (Supreme Court, Appellate Divion, First Department. November 9, 1900.) ction by Louis Klinger, by guardian, against erman Markowitz. From an order granting efendant's motion to set aside a judgment in vor of plaintiff and awarding a new trial (65 . Y. Supp. 369), plaintiff appeals. Affirmed. oseph Wilkenfeld, for appellant. Max Altayer, for respondent. O'BRIEN, J. For the reasons stated in the pinion of the court below, the order appealed om should be affirmed, with costs. PER CURIAM. Ordered that the order heretofore entered be corrected, so as to read as follows: "Order refusing leave to discontinue affirmed, with $10 costs and disbursements, and judgment modified, by striking therefrom the words 'upon the merits,' which modification is made upon the ground that the trial court did not have power to dismiss the complaint upon the merits; and the judgment (60 N. Y. Supp. 1078), as thus modified, affirmed, without costs of this appeal to either party. See 57 N. Y. Supp. 416, 1145, and 60 N. Y. Supp. 1071. KUHN, Respondent, v. SLOTE et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. October 2, 1900.) Action by Charles L. Kuhn against John Slote and another. No opinion. Judgment and order affirmed, with costs. All concur, except McLENNAN, J., who dissents, and LAUGHLIN, J., who did not vote. OF CATHOLIC MUT. BEN. ASS'N, RespondLAHEY, Appellant, v. SUPREME COUNCIL ent. (Supreme Court, Appellate Division, Fourth Department. May Term, 1900.) Action by Hannah Lahey against the Supreme Council of the Catholic Mutual Benefit Association. No opinion. Order affirmed, without costs. LAIBLE, Appellant, v. NEW YORK CENT. & H. R. R. CO. et al., Respondent. (Supreme Court, Appellate Division, Fourth Department. October 10, 1900.) Action by Elizabeth Laible against the New York Central & Hudson River Railroad Company, impleaded with the Fall Brook Railway Company. No opinion. Order affirmed, with $10 costs and disbursements. See 43 N. Y. Supp. 1003. PATTERSON and HATCH, JJ., concur. INGRAHAM, J. (dissenting). The court bew granted a new trial of this action upon the round that one of the witnesses called by the laintiff in rebuttal testified falsely. His testimony was contradicted, and the questions of act were submitted to the jury. The court hen, upon the affidavits of several persons which tended to show the statement of this vitness called by the plaintiff was false, granted new trial. I know of no principle upon which uch an order can be sustained. When the ismes in such an action are tried by a jury, their verdict should, I think, be final; and, if they may be retried upon affidavit by the special term, LAMBURN, Respondent, v. STATEN ISt seems to me that it would be better to have LAND MIDLAND R. CO., Appellant. (Suthe case originally tried upon affidavits, rather preme Court, Appellate Division, Second Departthan to go through the useless formality of sub-ment. July 23, 1900.) Action by William Lammitting the question to a jury. I think the or- burn against the Staten Island Midland Railder should be reversed. road Company. No opinion. Judgment and order unanimously affirmed, with costs. VAN BRUNT, P. J., concurs. KNOWLES, Appellant, v. DILLENBECK et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 10, 1900.) Action by George W. Knowles against Sylvester P. Dillenbeck, as, etc., and others. PER CURIAM. It appearing from the record and the concession of counsel in their briefs that two orders had been entered in this action. each of which purports to have been entered upon the decision of the same motion, and each In re LANGSLOW._ (Supreme Court, Appellate Division, Fourth Department. May Term, 1900.) In the matter of Mary E. Langslow, as executrix, etc. No opinion. Order affirmed, with costs. All concur, except ADAMS, P. J., not voting. LARY. Respondent, v. PETTIT et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May Term, 1900.) Action and 100 New York State Reporter by Herman S. Lary against Isaac N. Pettit and Myrtle L. Pettit. PER CURIAM. It appearing that two of the members of this court are disqualified from sitting in this case, it is hereby directed that the case be certified to the Third judicial department, in accordance with the provision of section 231 of the Code of Civil Procedure. LAWRENCE, Appellant, v. DAWSON et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) Action by James V. Lawrence, as sole surviving partner of the firm of Lawrence Bros., against John Dawson and William Archer, impleaded, etc. No opinion. Motion for reargument denied. See 54 N. Y. Supp. 647, 55 N. Y. Supp. 1142, and 64 N. Y. Supp. 185. July 24, 1900.) Action by the Lumber Exchange Bank against Charles Weston and others. PER CURIAM. Judgment and order reversed, and a new trial ordered, with costs to the appellant to abide event. Held, that the question as to whether the defendants, by their acts and dealings with the defendant Campbel and with the property held by them in coumon, constituted themselves co-partners under the name of Nice & Co., and were thus liable upon the notes in suit, was one of fact for the jury, and not of law for the court. == LUTHER, Respondent, v. CORNWELL, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 2, 1900) Action by William M. Luther against William C. Cornwell. No opinion. Interlocutory judg LEACH, Appellant, v. THORNBRUGH, Re-ment affirmed with costs, with leave to the de spondent. (Supreme Court, Appellate Division, fendant to withdraw his demurrer, and answer, First Department. July 17, 1900.) Action by upon payment of the costs of the demurrer Adele W. Leach against Edgar D. Thornbrugh, and of this appeal. All concur. C. R. Leavitt, for appellant. E. B. Southworth, for respondent. No opinion. Judgment affirmed, with costs. LEE, Respondent, v. BANISTER, Appellant. (Supreme Court, Appellate Division, Fourth Department. September 25, 1900.) Action by Fred Lee against Albert C. Banister. No opinion. Judgment and order affirmed, with costs. LEVY et al., Respondents, v. HARLEM, Appellant. (Supreme Court, Appellate Term. November 7, 1900.) Action by Julius Levy and others against Edward Harlem. From a judgment for plaintiffs, defendant appeals. Affirmed. Joseph Rosenzweig, for appellant. Hayes & Bitterman, for respondents. PER CURIAM. The only conclusion which the evidence warrants as to compensation is that the plaintiffs were to receive $50. The witness Silverman alone testified as to the amount of the commissions, and he said that the plaintiffs were to get $50. There was no evidence which conflicts with his statement. As to jurisdiction, see Worthington v. Accident Co. (N. Y. App.) 58 N. E. 102. The judgment is therefore modified by reducing it $100, and, as modified, is affirmed, without costs. LORENZEN, Respondent, V. DILLON, Mayor, et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) Action by Frederick Lorenzen against Michael J. Dillon, mayor of the city of New Rochelle, and others. No opinion. Order affirmed, on argument, with costs. LUCIA, Respondent, v. OMEL, Appellant. (Supreme Court, Appellate Division, Second Department. July 17, 1900.) Action by Louis M. Lucia against Louis Omel. No opinion. Judgment of the municipal court affirmed, with costs. LUMBER EXCH. BANK, Appellant, v. WESTON et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. LYMAN, Respondent, v. CHEEVER et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May Term, 1900.) Action by Henry H. Lyman, as state commissioner of excise, against Thomas H. Cheever and another. No opinion. Interlocutory judg ment affirmed, with costs, with leave to the defendant to withdraw the demurrer, and answer, upon payment of the costs of this appeal and of the demurrer. See 63 N. Y. Supp. 809. Court, Appellate Division, Fourth Department. LYMAN v. CHEEVER et al. (Supreme September 25, 1900.) Action by Henry H. Lyman, as state commissioner of excise, against Thomas H. Cheever and the United tion for leave to appeal to the court of appeals States Guarantee Company. No opinion. Mogranted, and question certified to that court filed with the clerk. All concur. See 63 N. Y. Supp. 809. LYMAN, Respondent, v. ELM SOCIAL CLUB, Appellant. (Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) In the matter of petition of Henry H. Lyman, as, etc., for an order revoking and canceling liquor tax certificate No. 11,384, issued to the Elm Social Club. No opinion. Order affirmed, with costs. LYONS, Appellant, v. CONNORS et al., Respondents. (Supreme Court, Appellate Division. Second Department. October 19, 1900.) Action by Thomas H. Lyons against George J. Connors and another. No opinion. Motion for reargument denied. See 65 N. Y. Supp. 1085. LYONS ELECTRIC LIGHT & POWER CO., Respondent, v. BASTION, Appellant. (Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) Action by the Lyons Electric Light & Power Company against David Bastion. No opinion. Judgment affirmed, with costs. All concur, except ADAMS, P. J., not voting. MCCREADY, Respondent, v. STATEN IS-| 1900.) Action by John Maloney against John LAND ELECTRIC R. CO., Appellant. (Su- S. Lynam and another. No opinion. Judgpreme Court, Appellate Division, Second De- ment and order affirmed, with costs. partment. July 17, 1900.) Action by George B. McCready against the Staten Island Electric Railroad Company. No opinion. Motion for leave to appeal to the court of appeals denied. See 64 N. Y. Supp. 996. MCGUIRE v. BELL TEL. CO. OF BUFFALO. (Supreme Court, Appellate Division, Fourth Department. May Term, 1900.) Action by Patrick McGuire against the Bell Telephone Company of Buffalo. No opinion. Defendant's exceptions overruled, and motion for a new trial denied, with costs, and judgment ordered for the plaintiff upon the verdict, with costs. MCGUIRE, Respondent, v. BELL TEL. CO. OF BUFFALO, Appellant. (Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) Action by Patrick McGuire against the Bell Telephone Company of Buffalo. No opinion. Motion for reargument denied. Motion for leave to appeal to the court of appeals granted. MACHINISTS' SUPPLY CO., Respondent, v. LESTERSHIRE MFG. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. September 18, 1900.) Action by the Machinists' Supply Company against the Lestershire Manufacturing Company. No opinion. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide event. 1 MANDONI v. MAYOR, ETC., OF CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. October 19, 1900.) Action by Joseph Mandoni against the mayor, etc., of city of New York. S. Lent, for appellant. T. J. O'Neil, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. MANGEL, Respondent, v. CORTRIGHT (Supreme Court, Appellate et al., Appellants. Division, Second Department. July 17, 1900.) Action by Charles Mangel, as administrator, etc., against Jacob Cortright and another. No opinion. Order granting new trial affirmed; costs of this appeal to abide the event. MARKOWITZ v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Term. July 13, 1900.) Action by Morris Markowitz against the Metropolitan Street-Railway Company. No opinion. Judgment affirmed, with costs. See 63 N. Y. Supp. 961. MARNELL, Respondent, v. BEERS, Appellant. (Supreme Court, Appellate Division, October 5, 1900.) AcSecond Department. tion by Edward Marnell against Mary L. Beers. No opinion. Interlocutory judgment affirmed, with costs. MARTIN, Appellant, V. NEW YORK MCKAY, Appellant, v. HUDSON RIVER CENT. & H. R. R. CO., Respondent. (SuLINE, Respondent. (Supreme Court, Appel-preme Court, Appellate Division, Fourth Delate Division, Second Department. October partment. July 24, 1900.) Action by Delía 12, 1900.) Action by Retta L. McKay against Martin, as administratrix, etc., against the the Hudson River Line. No opinion. Appeal New York Central & Hudson River Railroad transferred to the appellate division of the Company. No opinion. Order (64 N. Y. First judicial department. Supp. 364) affirmed, with costs. See 45 N. Y. Supp. 925. McLINSKY v. UNITED DRESSED BEEF CO. (Supreme Court, Appellate DiviMASTERS, Appellant, v. DE ZAVALA sion, First Department. July 17, 1900.) Ac- et al., Respondents. tion by Thomas McLinsky against the Unit-late Division, First Department. (Supreme Court, AppelNovember ed Dressed-Beef Company. No opinion. Mo- 9, 1900.) Action by Joseph W. Masters tion denied. See 65 N. Y. Supp. 1139. against Henry De Zavala and another. From court after trial without a jury, plaintiff apa judgment for defendants on decision of the peals. Affirmed. Jacob Fromme, for appellant. William T. Schley, for respondents. HATCH, J. The questions involved in this appeal are identical with those determined by this court in Reese v. Resburgh (decided at this term) 66 N. Y. Supp. 633, and the judgment appealed from should therefore be affirmed, with costs, upon the opinion in that case. MEYER, Respondent, v. FRANK et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) Action by Theophelia L. Meyer against Jane Frank and others. No opinion. Judgment affirmed, with costs. and 100 New York State Reporter MILLER, Respondent, v. HATTER, Appel- | lant. (Supreme Court, Appellate Division, AcFourth Department. April Term, 1900.) tion by Henrietta Miller against Elizabeth Hatter. No opinion. Appeal dismissed, under general rule 39. NATIONAL CASH-REGISTER CO. T. (Supreme Court, Appellate DiviBESCH. sion, Third Department. September 11, 1900.) Action by the National Cash-Register Company against Joseph Besch. PER CURIAM. Order modified, so as to read as follows: "Interlocutory judgment reversed, with costs of appeal to the appellant, and demurrer overruled, with costs of demurrer to the appellant to abide the event of the action." See 64 N. Y. Supp. 462. (City MISHNER v. SINGER MFG. CO. October Court of New York, General Term. 29, 1900.) Action by Louis Mishner against the Singer Manufacturing Company. From a judgment in favor of plaintiff, defendant apNAVEL, Appellant, v. BODDY, Respondpeals. Affirmed. Benjamin L. Brandner, for ent. (Supreme Court, Appellate Division appellant. Max D. Steuer, for respondent. Fourth Department. September 25, 1900 PER CURIAM. Judgment affirmed, with Action by William Navel against William M Boddy. No opinion. Order affirmed, with $10 costs and disbursements. costs. MITCHELL et al., Respondents, v. ANDERSON, Defendant (BELL, Appellant). (Supreme Court, Appellate Division, Fourth Department. May Term, 1900.) Action by John Mitchell and another against William E. Anderson and James A. Bell, attaching creditor. No opinion. Appeal dismissed, under general rule 39. See 66 N. Y. Supp. 118. MORGAN v. METROPOLITAN ST. RY. Mo MUNZINGER v. UNITED PRESS et al. (Supreme Court, Appellate Division, First DeAction by partment. October 19, 1900.) Louis Munzinger against the United Press and others. No opinion. Motion denied, with $10 costs. See 46 N. Y. Supp. 1097, and 47 N. Y. Supp. 1143. V. NASSAU PER CURIAM. Judgment and order unanimously affirmed, with costs. GOODRICH, P. J., and JENKS, J., concur for affirmance, except as to amount of verdict, which they think should be reduced. NEW YORK ROOFING CO., Respondent. v. SMITH et al., Appellants. (Supreme Court, Appellate Division, First Department. Jay 17, 1900.) Action by the New York Roofing Company against James B. Smith and others J. F. Miller, for appellants. F. Baumeister. for respondent. No opinion. Judgment (65 N. Y. Supp. 1142) affirmed, with costs. NORTHERN TRUST CO., Appellant,_. CITY OF ROCHESTER, Respondent. (Spreme Court, Appellate Division, Fourth De Action by the MURGATROYD v. TOWN OF HEMP-partment. October 9, 1900.) STEAD GAS & ELECTRIC LIGHT CO. Northern Trust Company, as, etc., against the (two cases). (Supreme Court, Appellate Divi- city of Rochester. sion, Second Department. October 5, 1900.) Actions by William Murgatroyd and Annie Murgatroyd against the Town of Hempstead Gas & Electric Light Company. No opinion. Motion for leave to appeal to the court of appeals denied. See 64 N. Y. Supp. 1144, 66 N. Y. Supp. 56, and 65 N. Y. Supp. 1142. PER CURIAM. Order affirmed, with $10 Held, that the ap costs and disbursements. pellant's remedy is to apply to the county court for an order declaring the proceeding abadoned. All concur, except ADAMS, P. J. not voting. PAKAS, Respondent, v. HOLLINGSHEAD MURPHY, Appellant, v. NASSAU ELECTRIC R. CO., Respondent. (Supreme Court, et al., Appellants. (Supreme Court, Appeliate Oc- Term. November 7, 1900.) Action by Solomon Appellate Division, Second Department. tober 26, 1900.) Action by Nora Murphy L. Pakas against William E. Hollingshead and against the Nassau Electric Railroad Company. another. From a judgment of the general term No opinion. Judgment of the county court of the city court of New York affirming a of Kings county unanimously affirmed, with judgment in favor of plaintiff (65 N. Y. Supp 663), and an order denying a new trial, the de fendants appeal. Affirmed. costs. Appellant, V. ment and order affirmed, with costs. PER CURIAM. Judgment affirmed, with costs. PAPANOE v. DONAHOE. (Supreme Court Appellate Division, Third Department. Se tember 11, 1900.) Action by Albert Papa against Martin C. Donahoe. No opinion. M tion denied, without costs. |