and 100 New York State Reporter

with the usual leave to defendant to amend on | Waldo, for appellant. W. B. Putney, for payment of costs." L. A. Malkiel, for appel- spondent. No opinion. Order affirmed, with $10 lants. A. H. Sarasohn, for respondent. costs and disbursements.

PER CURIAM. Judgment affirmed, with costs, on the opinion of the court below, with leave to defendant to withdraw demurrer, and answer over, on payment of costs in this court and in the court below. See 61 N. Y. Supp. 1147; 60 N. Y. Supp. 640.

SCHEIDT, Respondent, v. CARR et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 12, 1900.) Action by John H. Scheidt, as executor, etc., against Sydney H. Carr and Ignatz Martin. Judgment affirmed by default, with costs.

SCHURK, Respondent, v. NUTTER, Appellant. (City Court of New York, General Term. October 29, 1900.) Action by Charles Schurk against Mary E. Nutter. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed. Gifford, Stearns & Hobbs, for appellant. Thompson & Maloney, for respondent. HASCALL, J. It seems to us, from the testimony adduced upon the trial, that respondent sustained the allegations of his complaint by the necessary weight of evidence, which enabled the jury to say that the appellant promised or agreed to pay the commission sued for, or was cognizant of effort being made in her behalf for which, if successful, she would be obliged to pay the customary rate. We also find that the question was fairly submitted below. Judgment and order appealed from should be affirmed, with

costs.

FITZSIMONS, C. J., concurs.

SCOTT. Respondent, v. DENNETT SURPASSING COFFEE CO., Appellant. (Supreme Court, Appellate Division, Second Department. July 17, 1900.) Action by William Scott against the Dennett Surpassing Coffee Company. No opinion. Motion for leave to the court of appeals denied, and stay vacated. See 64 N. Ÿ. Supp. 1016.

SECOR, Appellant, v. BOLAND, Respondent. (Supreme Court, Appellate Division, First Department. July 17, 1900.) Action by James F. Secor, Jr., against William A. Boland. L. A.

SEEBER, Respondent, v. PEOPLE'S BUILD ING, LOAN & SAVINGS ASS' N, Appellant (Supreme Court, Appellate Division, Second De partment. October 5, 1900.) Action by Charles Seeber against the People's Building, Loan & and order affirmed, with costs. Savings Association. No opinion. Judgment

SHEPARD, Appellant, Y. BOULEVARD LAND CO. et al., Respondents. (Supreme Court Appellate Division, Fourth Department. & tember 25, 1900.) Action by C. Sidney Shepar against the Boulevard Land Company and oth ers. No opinion. Motion to dismiss appea granted, unless, on or before the 1st day of November next, the appellant files and serves the printed record, in which event the motion is denied.

SHOTWELL v. DIXON et al. (Supreme Court, Appellate Division, Third Department September 11, 1900.) Action by Samuel H Shotwell against Baltie H. Dixon and others.

PER CURIAM. Motion denied, and permission given to the appellant to use upon the argument in this court the record remitted from the court of appeals, which was used at special term, or a certified copy thereof. See 48 X. Y. Supp. 984.

SIDNEY GLASS WORKS, Respondent, v. HATHORN et al., Appellants. (Supreme Court. ber 25, 1900.) Appellate Division, Third Department. SeptemAction by the Sidney Glass Works against Frank H. Hathorn and Emily Hathorn. No opinion. Order reversed, with $10 costs and disbursements, and motion granted. without costs to either party.

SILVERNAIL, Respondent, v. CONNORS et al., Appellants. (Supreme Court, Appellate Div sion, Fourth Department. September 18, 1900) Action by John Silvernail against James Connors and another.

PER CURIAM. Judgment of county court and of justice's court reversed, with costs. Held, that the evidence fails to show such possession or right of possession of the property in question in the plaintiff as entitles him to maintain an ae tion for conversion. See Talbot v. Cruger, 151 N. Y. 117, 45 N. E. 364.

SIMMONS v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. October 10, 1900.) A tion by Henry E. Simmons against New York Central & Hudson River Railroad Company. No opinion. Plaintiff's exceptions overruled, and motion for new trial denied, with costs.

SISSON et al., Respondents, v. GRIPPS, Ap-ply for another commission. Held, that the orpellant. (Supreme Court, Appellate Division, der appealed from was improper, for the reaSecond Department. July 23, 1900.) Action by son that it fixed no time for the return of the Harry T. Sisson and Edward T. Sisson, co- commission, and granted a stay of proceedings partners doing business under the name of James until its return, which stay was, consequently, B. Sisson Sons, against James C. Gripps. No unlimited as to time. opinion. Judgment affirmed, with costs.

In re SKELLY. (Supreme Court, Appellate Division, Fourth Department. May Term, 1900.) In the matter of the application of Luke Skelly for a writ of mandamus, etc. No opinion. Order affirmed, with costs.

SLADE, Respondent, v. MONTGOMERY_et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) Action by Richmond E. Slade against Howard T. Montgomery and another. No opinion. Motions for reargument and for resettlement of order denied. See 65 N. Y. Supp. 709.

SMITH, Appellant, v. PALMER, Respondent. (Supreme Court, Appellate Term. November 7, 1900.) Action by Alvarez H. Smith against Marion Palmer. From a judgment for defendant, plaintiff appeals. Reversed. E. F. Brown, for appellant. M. J. Briggs, for respondent.

PER CURIAM. The record discloses no conflict of evidence, except as to the alleged special agreement about the rate at which visits were to be charged for. Upon the uncontradicted evidence the plaintiff was entitled to receive something. No special defenses were pleaded, and none can therefore be availed of. The defendant did not make the objection in the trial that the book of original entries was not produced. If she had, the plaintiff might have produced it. Judgment reversed, and new trial granted, with costs to appellant to abide the event.

SPENCER, Respondent,
V. CITY OF
WATERTOWN, Appellant. (Supreme Court,
Appellate Division, Fourth Department. May
Term, 1900.) Action by James D. Spencer
against the city of Watertown. No opinion.
Judgment affirmed, with costs.

SPRAGUE v. CITY OF ROCHESTER. (Supreme Court, Appellate Division, Fourth Department. September 18, 1900.) Action by Fanny Sprague against the city of Rochester. No opinion. Motion for reargument denied, with $10 costs. Motion for leave to appeal to the court of appeals denied. All concur. See 64 N. Y. Supp. 846.

STAPF, Respondent, v. BUFFALO SAVINGS & LOAN ASS'N, Appellant. (Supreme Court, Appellate Division, Fourth Department. May Term, 1900.) Action by Emma Stapf against the Buffalo Savings & Loan Association. No opinion. Appeal dismissed, under general rule 39.

INGS & LOAN ASS'N, Appellant. (Supreme STAPF, Respondent, v. BUFFALO SAVCourt, Appellate Division, Fourth Department. September 18, 1900.) Action by Emma Stapf against the Buffalo Savings & Loan Association.

PER CURIAM. Motion to vacate order of dismissal and restore case to calendar granted, and the case is hereby placed at the foot of the present calendar of this court. This order is granted upon condition that the case be argued when reached in its regular order.

STILES, Appellant, v. BUSH et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. September 25, 1900.) Action by Leon W. Stiles against Frances I. Bush and another. No opinion. Judgment affirmed, with costs.

SWIFT, Appellant, v. FINNIGAN et al., Respondents. (Supreme Court, Appellate Division, Third Department. September 25, 1900.) Action by Fred H. Swift against George P. Finnigan and others. No opinion. Motion denied, without costs to either party. See 65 N. Y. Supp. 723.

SWIFT, Appellant, v. FINNIGAN et al., Respondents. (Supreme Court, Appellate Division, Third Department. September 25, 1900.) Action by Fred H. Swift against George P. Finnigan and others. No opinion.

and 100 New York State Reporter

VAN WAGONER v. THOMPSON. (Sureme Court, Appellate Division, Third Deartment. September 25, 1900.) Action by Libbie Van Wagoner against John Thompson, is executor, etc. No opinion. So much of the notion as asked to amend order and judgment ntered, so as to show that the decision was ot unanimous, is granted, and in all other espects denied. See 65 N. Y. Supp. 1149.

In re VEITH. (Supreme Court, Appellate Division, Fourth Department. September 25, 900.) In the matter of supplementary proeedings to collect tax of Henry J. Veith. No pinion. Motion for leave to appeal to the ourt of appeals granted, and certificate filed vith clerk.

In re VERWAY. (Supreme Court, Appelate Division, Second Department. October 12, .900.) In the matter of the application of Frederick Verway and another to lay out a highway in the town of Islip, etc.

PER CURIAM. The papers in this proceedng are not certified by the county court, as equired by section 90 of the highway law, or is there among the papers any certificate of the commissioners of highways showing hat the public interest will be promoted by he laying out and opening of the proposed ighway. These deficiencies must be supplied efore the desired order can be made.

In re VERWAY et al. (Supreme Court, Appellate Division, Second Department. Ocober 19, 1900.) In the matter of the appliation of Frederick Verway and others to lay out a highway in the town of Islip, etc. No pinion. Motion to confirm order of the county Court of Suffolk county granted, and order =igned.

V.

WELDE, Respondent, v. NEW YORK & H. R. CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. July 17, 1900.) Action by Charles Welde against the New York & Harlem Railroad Company and others. OcI. A. Place, for appellants. T. P. Wickes, for respondent. No opinion. Judgment (60 N. Y. Supp. 319) affirmed, with costs. See 51 N. Y. Supp. 290.

VILLAGE OF CATO, Respondent, WORMOUTH, Appellant. (Supreme Court, Appellate Division, Fourth Department. ober 9, 1900.) Action by the village of Cato gainst William Wormouth. No opinion. The court declines to entertain and consider this case upon the ground that the record is imerfect, in that it does not contain the reurn in the case of village of Cato v. HorriWELLMAN, Respondent, v. HART, Appelan, and in that it does not contain any opin-lant. (City Court of New York, General Term. Action by Francis L. Wellon or affidavit that no opinion was written, October 29, 1900.) s required by general rule 41. man against Frieda Hart. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. AfJoseph Rosenzweig, for appellant. Wellman & Gooch, for respondent.

VILLAGE OF NUNDA, Respondent, v. THORNTON, Appellant. (Supreme Court, Appellate Division, Fourth Department. Ocober 10, 1900.) Action by the village of Nunda against Mary Nichols Thornton. opinion. Judgment affirmed, with costs.

No

WALKER, Appellant, V. SYRACUSE RAPID-TRANSIT RY. CO., Respondent. Supreme Court, Appellate Division, Fourth

firmed.

HASCALL, J. We think the court below properly disposed of the issue presented. It was not a question of what legal right plaintiff possessed to require a memorandum of security from the defendant, but what she voluntarily agreed to do. The record shows a complete understanding between the parties as to the situation of interests, and we think the written evidence of agreement expresses suffi

and 100 New York State Reporter

cient consideration to keep it from operation | Company. No opinion. Judgment and em of the statute of frauds. Judgment and order affirmed, with costs. All concur, except appealed from are affirmed, with costs. LENNAN, J., who dissents.

FITZSIMONS, C. J., and CONLAN, J.,

concur.

WIECHER, Respondent, v. ALBRIGHT, A pellant. (Supreme Court, Appellate Divise First Department. July 17, 1900.) Action WELLS, Respondent, v. ROTHWELL, Appellant. (Supreme Court, Appellate Division, Adolph Wiecher against George W. Albrigh Third Department. September 25, 1900.) Ac-T. M. Tyng, for appellant. E. R. Leavitt, fr tion by Maria Wells against Nellie Rothwell, respondent. No opinion. Order affirmed, wit individually and as executrix, etc. $10 costs and disbursements.

PER CURIAM. Order reversed, with $10 costs and disbursements, and motion for assignment and discontinuance granted, upon terms stated in the opinion in case of Cleveland against the same defendant, 66 N. Y. Supp. 241. Order to be settled before SMITH, J.

In re WESTCOTT. (Supreme Court, Appellate Division, Second Department. October 5, 1900.) In the matter of the application of James H. Westcott, Jr., for admission to practice.

WIGTON, Respondent, v. KENNEY, Appelant.(Supreme Court, Appellate Division. Se ond Department. October 19, 1900.) Act”. by Elliott D. Wigton as receiver of the lows Savings Bank against Albert S. Kenney. opinion. Order affirmed, without costs, the stip ulation as suggested by the court having bec filed. See 64 N. Y. Supp. 924.

WILLIAMS et al. v. BARKLEY. (Supre Court, Appellate Division, Fourth Departmen PER CURIAM. The certificate of Judge May Term, 1900.) Action by Stephen K. W Magruder, instead of showing that the appli-liams and others against Orville N. Barkley, in cant has practiced law in Illinois three years, pleaded, etc. states that he practiced from October 26, 1899, until December, 1899. If this is an error, it must be corrected by the justice himself. There should also be proof by affidavit that the applicant has not applied for admission elsewhere in the state.

WHEELER, Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. July 24, 1900.) Action by Charles Wheeler against the New York Central & Hudson River Railroad Company. No opinion. Order affirmed, with costs.

WHELAN, Respondent, v. NELSON et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 26, 1900.) Action by Michael Whelan against Zachariah O. Nelson and another, doing business under the firm name of Z. Ó. Nelson & Son. No opinion. Judgment of the municipal court affirmed, with costs.

WHITLOCK. Respondent, v. GOULD et al., Appellants. (Supreme Court, Appellate Division, First Department. July 17, 1900.) Action by Edgar Whitlock against Louis A. Gould and others. D. B. Luckey, for appellants. C. N. Ironside, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. See 62 N. Y. Supp. 792.

PER CURIAM. Motion for leave to appeal to the court of appeals granted, upon filing of the customary bond, upon condition that suen appeal be perfected and papers filed in the court of appeals within 30 days; and the f lowing question is hereby certified to that com viz.: Is the former adjudication of this court upon the motion to confirm the report of the referee, in the case of Barkley v. Railroad Co. and upon the appeal from the order granting a injunction in this action (see 35 App. Div. 15 54 N. Y. Supp. 970), binding upon the plaintiffs or either or any of them, so far as it determites their rights to liens upon the fund in question? See 65 N. Y. Supp. 356.

WILLIAMS, Appellant, v. CONNORS. Respondent. (Supreme Court, Appellate Divison Fourth Department. April Term, 1900) Ac tion by Luther Williams against William J. Connors. No opinion. Appeal dismissed, under general rule 39. See 66 N. Y. Supp. 11.

WILLIAMS, Respondent, v. DELAWARE L. & W. R. CO., Appellant. (Supreme Court. Appellate Division, Fourth Department. J's 24, 1900.) Action by Ellis R. Williams against the Delaware, Lackawanna & Western Ra road Company. From a judgment for plaint and an order denying a new trial, defendant ap peals. Reversed. For opinion on former ap peal, see 57 N. Y. Supp. 203. William Kera for appellant. P. C. J. De Angelis, for respond

ent.

PER CURIAM. Judgment and order re WIARD, Respondent, v. SYRACUSE RAP-versed, and new trial ordered, with costs to the ID-TRANSIT RY. CO., Appellant. (Supreme appellant to abide the result. Court, Appellate Division, Fourth Department. ADAMS, P. J., and MCLENNAN and May Term, 1900.) Action by Timothy J. Wiard SPRING, JJ., concur. against the Syracuse Rapid-Transit Railway voting.

WILLIAMS, J., not