NICOLELLI, Appellant, v. FRIEDMAN et al., Respondents. (Supreme Court, Appellate Division, First Department. November 13, len L. Friedman and another. 1914.) Action by Michael Nicolelli against AlG. J. Gruen

In re NESTER et al. (Supreme Court, Appellate Division, Fourth Department. October 14, 1914.) In the matter of the first judicial set-berg, of New York City, for appellant. A. J. tlement of the accounts of Minnie Nester and McElhinney, of New York City, for respondents. others, as executors of the will of Samuel Nes- No opinion. Order affirmed, with $10 costs and ter, deceased. No opinion. It appearing that there are not four justices of this court qualified See, also, 149 N. to sit in this appeal, it is ordered transferred to the Appellate Division, Third Department, to be there heard and determined, pursuant to section 231, Code Civ. Proc.

disbursements.
Y. Supp. 1099.

Order filed.

In re NICHOLS. (No. 3.) (Supreme Court, Appellate Division, First Department. November 6, 1914.) Proceeding upon charges of professional misconduct by the Association of the Bar of the City of New York against Henry

On referee's report. Respondent disbarred. See, also, 160 App. Div. 890, 144 N. Y. Supp. 1132; 160 App. Div. 929, 145 N. Y. Supp. 1135. Merrill E. Gates, Jr., of New York City, for petitioner. William Michael Byrne, of New York City, for respondent.

NEW et al., Appellants, v. BURNETT, Respondent, et al. (Supreme Court, Appellate Di-Nichols. vision, First Department. November 6, 1914.) Action by Katherine T. New and another against Anna M. Burnett, impleaded. M. T. Manton, of New York City, for appellants. M. Kronacher, of New York City, for respondent. No opinion. Judgment affirmed, with costs. Or

INGRAHAM, P. J. Charges of misconduct

Appeals granted. See, also, 163 App. Div. 466, 148 N. Y. Supp. 769; 163 App. Div. 468, 148 N. Y. Supp. 771.

In re O'BRIEN. (Supreme Court, Appellate Division, First Department. November 13, 1914). In the matter of John P. O'Brien. No opinion. Referred to official referee. Settle order on notice.

O'BRIEN v. SEYBOLT (two cases). SEYBOLT v. O'BRIEN. (Supreme Court, Appellate Division, Third Department. September 15, 1914.) Two actions by Thomas J. O'Brien against Alva Seybolt, and action by Alva Seybolt against Thomas J. O'Brien. No opinions. Motions denied. See, also, 163 App. Div. 162, 148 N. Y. Supp. 489.'

tion of the Bar of the City of New York, to which the respondent filed an answer. The charges were referred to the official referee, and he, after his investigation, has filed a careful report, in which he finds the respondent guilty of the charges, and he also finds that the respondent deliberately testified falsely before him that he sent to his client a letter, a copy of which he produced, with a check for the amount due to her, but which letter or check was in fact never written or sent. As to the first charge the referee says: "Upon all that appears before me, inclusive of my observations of the manner in which the witnesses gave their testimony, am of the opinion that the letter of September 16, 1912, and the check inclosed therein, were never written or mailed as claimed, and that petitioner's proof sufficiently establishes the first charge." As to the second charge, the referee also, after an exhaustive examination of the testimony, concluded that the respondent's testimony was false, and concludes: "Upon the whole case, inclusive of probabilities and my observations of the manner in which the witnesses gave their testimony, I am of the opinion EIGHTH ST, & SEVENTH AVE. REALTY OCEANIC INVESTING CO. v. TWENTYthat Brownstein's testimony is true, and that it sufficiently sustains the second charge of the First Department. October 30, 1914.) Action (Supreme Court, Appellate Division, petition." If the referee's report is sustained by the evidence, it conclusively establishes that this by the Oceanic Investing Company against the respondent is totally unfit to remain a member ty Company. No opinion. Motion granted, on Twenty-Eighth Street & Seventh Avenue Realof the profession. We have examined the tes-condition that appellant serve the printed patimony, and we are entirely satisfied with the report of the referee. In fact, on this testimony pers and put the case on the calendar for November 6th. Settle order on notice. See, also, as it stands, we could have come to no other 149 N. Y. Supp. 1100. conclusion. This is not a case in which it would be useful to critically examine the charges themselves, or the testimony before the referee. It is suflicient to say that both the conduct of the defendant in relation to his client and his testimony and conduct before the referee is such that but one conclusion can be drawn from it, that he has been guilty of such professional misconduct that he should no longer remain a member of the profession, and he is therefore disbarred. All concur.

NICHOLSON, Respondent, v. KINGSBURY, Appellant. (Supreme Court, Appellate Divi' sion, Fourth Department. September 23, 1914.) Action by James W. Nicholson against Maude C. Kingsbury. No opinion. Motion granted, and appeal dismissed, with costs.

CO.

OCEANIC INVESTING CO., Respondent, v. TWENTY-EIGHTH ST. & SEVENTH AVE. REALTY CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. October 30, 1914.) Action by the Oceanic Investing Company against the Twenty-Eighth Street & Seventh Avenue Realty Company and others. F. Bien, of New York City, for ap pellants. H. M. Bellinger, Jr., of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. See, also, 148 N. Y. Supp. 560; 149 N. Y. Supp. 1100.

O'CONNOR, Respondent, v. JAMES STEWART & CO., Inc., Appellant. (Supreme Court, Appellate Division, Third Department. September 23, 1914.) Action by Robert J. NIEDERLITZ v. METROPOLITAN CASU-O'Connor against James Stewart & Co., InALTY INS, CO. (Supreme Court, Appellate Di- corporated. No opinion. Order reversed, with vision, First Department. October 16, 1914.) $10 costs and disbursements, and plaintiff is Action by Joseph D. Niederlitz against the precluded from making proof as to the matMetropolitan Casualty Insurance Company No ters required in the order for bill of particuopinion. Motion granted, with $10 costs. Or- lars, except as specified in the bill of particuder filed. lars furnished.

NORTON, Appellant, v. ERIE R. CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. September 23, 1914.) Action by Gertrude I. Norton, as administratrix, etc., against the Erie Railroad Company No opinion. Motion for leave to appeal to Court of

O'DONNELL, Respondent, V. CAULDWELL WINGATE CO., Appellant. (Supreme Court, Appellate Division, First Department. October 30, 1914. Action by Annie O'Donnell, as administratrix, against the Cauldwell Wingate Company. C. J. Heermance, of New

York City, for appellant. C. J. Earley, of
New York City, for respondent.

PER CURIAM. Judgment and order affirmed, with costs. Order filed.

INGRAHAM, P. J., dissents.

late Division, First Department. October 30, 1914.) Action by Vito Pante and another against the Christian Jacobs Fireproofing & Concrete Company, Incorporated. V. H. Smith, of New York City, for appellants. J. W. Bryant, of New York City, for respondent. No opinion. Order modified, by granting motion on payment of $10 costs, and by striking

O'LEARY, Respondent, v. HAY FOUNDRY out of the order the words "by plaintiffs per& IRON CO., Appellant. (Supreme Court, Ap-sonally." As so modified, order affirmed, withpellate Division, Second Department. Novem- out costs. Settle order on notice. See, also, ber 6, 1914.) Action by John O'Leary against 149 N. Y. Supp. 1101. the Hay Foundry & Iron Company. No opinion. Judgment and order unanimously affirmed, with costs.

Νο

PEARL, Appellant, v. LEHIGH VALLEY R. CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. September 30, 1914.) Action by Harriet Pearl against the Lehigh Valley Railroad Company. opinion. Order affirmed, with $10 costs and disbursements. Held that, in view of the form of the order appealed from and the facts disclosed by the papers on appeal, the Special Term was justified in making the order.

PEERLESS PATTERN CO., Respondent, v. McCLURE PUBLICATIONS, Inc., Appellant. (Supreme Court, Appellate Division, First Department. Action November 13, 1914.) by the Peerless Pattern Company against the McClure Publications, Incorporated. H. S. Duell, of New York City, for appellant. N. A. Stancliffe, of New York City, for respondent. No opinion. Order modified, by striking out so much thereof as allows the examination of the defendant's officers as to the eighth and sixteenth paragraphs of the complaint, and, as so modified, affirmed, without costs. Settle order on notice.

PECK BROS. & WINCH, Respondents, v. pellate Division, First Department. November DAVIDSON, Appellant. (Supreme Court, Ap6, 1914.) Action by Peck Bros. & Winch against Archibald Davidson. J. Willett, for appellant. C. De W. Rogers, of New York City, for respondents. No opinion. Judgment and order affirmed, with costs. Order filed.

PENDLETON, Respondent, v. BENNETT, Appellant. (Supreme Court, Appellate Division, Second Department. October 2, 1914.) Action by William S. Pendleton against William F. Bennett. No opinion. Motion granted. without costs, and appellant's time to print and file papers extended to October 10, 1914.

PEOPLE, Respondent, v. ALDERWICK, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 22, 1914.) Proceeding by the People of the State of New York against Charles Alderwick. No opinion.

PEOPLE, Respondent, v. BRENZEL, Appellant. (Supreme Court, Appellate Division, Second Department. October 9, 1914.) Proceeding by the People of the State of New York against Catherine Brenzel. No opinion. Judgment of conviction of the County Court of Kings County affirmed by default.

PEOPLE v. CIPOLLARO. (Supreme Court, Appellate Division, First Department. October 16, 1914.) Proceeding by the People of the State of New York against Barney Cipollaro. No opinion. Motion granted. Order filed.

PEOPLE v. JORDAN. (Supreme Court, Appellate Division, First Department. October 16, 1914.) Proceeding by the People of the State of New York against Tony Jordan. No opinion. Motion granted. Order filed.

PEOPLE v. KNICKERBOCKER DAIRY CO. (Supreme Court, Appellate Division. First Department. October 30, 1914.) Proceeding by the People of the State of New York against the Knickerbocker Dairy Company. No opinion. Motion granted, with $10 costs. Order filed.

PEOPLE, Respondent, v. LE COMPTE, ApPEOPLE v. DABNEY. SAME v. EHRpellant. (Supreme Court, Appellate Division, LICH. (Supreme Court, Appellate Division, Second Department. October 30, 1914.) ProFirst Department. October 30, 1914.) Proceedings by the People of the State of New ceeding by the People of the State of New York against George Dabney and against Wil-York against Edward Le Compte. liam Ehrlich. No opinion. Motions granted. Orders filed.

PEOPLE, Respondent, v. FEINBERG, Appellant. (Supreme Court, Appellate Division, Third Department. November 11, 1914.) Proceeding by the People of the State of New York against Abram I. Feinberg. No opinion. Judgment of conviction affirmed.

PEOPLE v. GRIGGS. (Supreme Court, Appellate Division, First Department. October 16, 1914.) Proceeding by the People of the State of New York against John Griggs. No opinion. Motion granted. Order filed.

PER CURIAM. The only credible evidence in this case is to the effect that defendant's wife met him on a public street, and committed an assault upon him, and that he was trying to escape from her at the time he was arrested. This is insufficient to sustain a conviction for disorderly conduct. The judgment of conviction of the city magistrate, and the order of the County Court of Queens County affirming the same, are reversed, and a new trial ordered. Settle order before Mr. Justice Burr. Upon the settlement of the order, the tribunal for the new trial will be considered.

PEOPLE v. ORIFICE. (Supreme Court. Appellate Division, First Department. October 16, 1914.) Proceeding by the People of the State of New York against Thomas Orifice. No opinion. Motion granted. Order filed.

PEOPLE, Respondent, v. HENDRIX, Appellant. (Supreme Court, Appellate Division, Second Department. October 16, 1914.) Proceeding by the People of the State of New York against Stafford Hendrix. No opinion. Motion granted, without prejudice to any motion that may be made for a dismissal of the appeal upon the ground that this case is not with-heimer. in the purview of the statutes.

PEOPLE v. HOROWITZ. (Supreme Court, Appellate Division, First Department. October 16, 1914.) Proceeding by the People of the State of New York against Charles S. Horowitz. No opinion. Motion denied. Settle order on notice. See, also, 147 N. Y. Supp. 1131.

PEOPLE, Respondent, v. IAGARONE, Appellant. (Supreme Court, Appellate Division, Third Department. November 11, 1914.) Proceeding by the People of the State of New York against Pasquale Iagarone, whose true name is Pasquale Iaguadore. No opinion. Judgment of conviction affirmed.

(Supreme

PEOPLE v. OTTENHEIMER. Court, Appellate Division, First Department. October 30, 1914.) Proceeding by the People of the State of New York against Alfred Ottenfiled.

No opinion. Motion granted. Order

PEOPLE v. PAYNE et al. In re CARPENTER. (Supreme Court, Appellate Division, Second Department. October 16, 1914.) Proceeding by the People of the State of New York against Robert D. Payne and another. In the matter of the application of John W. Carpenter for an order canceling and discharging of record a judgment, etc. No opinion. Order of the County Court of Kings County affirmed, with $10 costs and disbursements.

PEOPLE v. SANDLER et al. (Supreme Court, Appellate Division, Third Department. September 23, 1914.) Proceeding by the People of the State of New York against David E.

Sandler and Edgar C. Beach. No opinion. Or- Clarence Cluett, against John J. Twohey, Abider affirmed, without costs.