and 121 New York State Reporter Action by Eliza Fairweather against Catherine Hall Burling. No opinion. Order affirmed, on argument, with $10 costs and disburse ments. FARRELLY v. EMIGRANT INDUSTRIAL SAV. BANK. (Supreme Court, Appellate Division, First Department. April 15, 1904.) Action by Thomas Farrelly against the Emigrant Industrial Savings Bank. No opinion. Motion denied. FIDELITY TRUST CO., Appellant, v. MARSHALL, et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. March 22, 1904.) Action by the Fidelity Trust Company, as committee, etc., against Charles D. Marshall, as executor, etc., and Charles D. Marshall, as administrator, etc. PER CURIAM. Interlocutory judgment and order affirmed, with costs, with leave to the plaintiff to plead over upon the payment of the costs of the demurrer and of this appeal. Held, that the decision of the questions involved in this case is controlled by the cases of U. S Trust Co. v. Mutual Benefit Life Ins. Co., 115 N. Y. 152, 21 N. E. 1025, and Walsh v. Mutual Life Insurance Co., 133 N. Y. 408, 31 N. E. 228, 28 Am. St. Rep. 651. MCLENNAN, P. J., dissents, upon the authority of Amberg v. Manhattan Life Insurance Co., 171 N. Y. 314, 63 N. E. 1111, and also upon the ground that it was not the intention of the parties to the contract of insurance that any part of the insurance moneys should be paid to the representatives or assigns of any child of the insured who might die without issue before the death of the insured. FIDELITY TRUST CO. OF BUFFALO v. MARSHALL. (Supreme Court, Appellate Division, Fourth Department. March 29, 1904.) Action by the Fidelity Trust Company of Buffalo, as committee, etc., against Charles D. Marshall, as administrator, etc. No opinion. Motion for leave to appeal to the Court of Appeals granted, and questions certified as presented in the moving papers. FITZPATRICK, Respondent, v. BUTLER, Appellant. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) Action by Thomas Fitzpatrick against James Butler. No opinion. Order affirmed, with $10 costs and disbursements. FITZPATRICK, Respondent, v. FOX et al., Appellants. (Supreme Court, Appellate Divi sion, Second Department. April 22, 1904.) Ac tion by William J. Fitzpatrick against Patrick Fox and Catherine Fox. No opinion. Motion granted, and order resettled. FOLEY & CO., Respondent, v. SHERWOOD, Appellant." (Supreme Court, Appellate Division, Fourth Department. April 5, 1904) Action by Foley & Co. against Amos B. Sherwood. No opinion. Judgment and order affirmed, with costs. FREEMAN, Appellant, v. WYSE, Respondent. (Supreme Court, Appellate Division. First Department. April 8, 1904.) Action by Lewis C. Freeman against Marie_S. Wyse. L. C Freeman, in pro. per. R. T. Greene, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. GENERAL ELECTRIC CO. v. SIRE et a!. (Supreme Court, Appellate Division. First Dpartment. March 25, 1904.) Action by the General Electric Company against Meyer L Sire and others. F. Bien, for appellants. J. V. Bouvier, Jr., for respondent Kiernan. No opin ion. Order affirmed, with $10 costs and dis bursements. GERMAN BANK, Respondent, v. METRO POLITAN BANK, Appellaut. (Supreme Court. Appellate Division, Fourth Department. Apr 5, 1904.) Action by the German Bank against the Metropolitan Bank. costs and disbursements. PER CURIAM. Order affirmed, with $10 SPRING, J., not voting. GERSHENSON, Appellant, v SHELKO WITZ, Respondent. Supreme Court. Appelate Division, First Department. April & 1904.) Action by Nathan Gershenson against Jacob Shelkowitz. M. Schleimer, for appellant. M. Brown, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. GIRARD V. INTERNATIONAL PULP CO. (Supreme Court, Appellate Division, Third De partment. March 15, 1904.) Action by Dekna Girard, as administratrix, etc., against the International Pulp Company. No opinion. Mtion denied. GIVEEN v. GANS. (Supreme Court, Appellate Division, First Department. March 2 1904.) Action by John S. Giveen against Levi L. Gans. No opinion. Motion granted. GODFREY v. SCHMIDT et al. (Supreme Court, Appellate Division, First Department. March 25, 1904.) Action by Frederick S. Godfrey against Charles Schmidt and others. No opinion. Motion granted, with $10 costs. GOLDSTEIN et al., Appellants, v. MENTRUP, Respondent. (Supreme Court, Appel late Division, Second Department. April 15, 1904.) Action by Charles Goldstein and Aaron | reversed. New trial ordered, with costs to apZelenko against Josephine Mentrup. No opin- pellant to abide the event. All concur. ion. Judgment of the Municipal Court affirmed, with costs. In re GOTTLIEB. (Supreme Court, Appellate Division, First Department. March 25, 1904.) In the matter of Gettel Gottlieb. No opinion. See memorandum per curiam. GRANT, Appellant, v. PRATT & LAMBERT, Respondents. (Supreme Court, Appellate Division, First Department. April 8, 1904.) Action by W. Wallace Grant against Pratt & Lambert. E. M. Shepard, for appellant. L. C. Ledyard, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. GRAVES, Respondent, v. CENTRAL NEW YORK TELEPHONE & TELEGRAPH CO. (Supreme Court, Appellate Division, Fourth Department. March 15, 1904.) Action by Nellie Graves against the Central New York Telephone & Telegraph Company. PER CURIAM. Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over, upon payment of the costs of the demurrer and of this appeal. WILLIAMS, J., dissents. GREGORY, Respondent, v. D. O. HAYNES & CO., Appellant. (Supreme Court, Appellate Division, First Department. April 22, 1904.) Action by G. Felix Gregory against D. 0. Haynes & Co. R. S. Baldwin, for appellant. R. B. Aldcroft, for respondent. No opinion. Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer, on payment of costs in this court and in the court below. In re GRIFFIN. (Supreme Court, Appellate Division, Second Department. March 15, 1904.) In the matter of the application of James H. Griffin for admission to the bar. No opinion. Application granted. GRIFHAHN, Respondent, v. KREIZER_et al., Appellants. (Supreme Court, Appellate Division, Second Department. March 15, 1904.) Action by Mary C. Grifhehn, as administratrix, etc., against Bernard Kreizer and others. No opinion. Undertaking approved and filed. HAACK, Appellant, v. BROOKLYN LABOR LYCEUM ASS'N et al., Respondents. GREENSPAN, Respondent, v. JOFFE. Ap-(Supreme Court, Appellate Division, Second Depellant. (Supreme Court, Appellate Term. partment. April 22, 1904.) Action by Laura March 24, 1904.) Action by Abraham Green- A. Haack against the Brooklyn Labor Lyceum span against David Joffe. From a judgment Association, Joseph Hellig, and the city of New for plaintiff, and from an order denying a new York. No opinion. Judgment reversed, and a trial, defendant appeals. Reversed. A. B. new trial granted, costs to abide the event, on Greenberg, for appellant. J. Rieger, for rethe opinion in Bruno Haack v. Same (decided spondent. herewith) 87 N. Y. Supp. 814. HALE. Appellant, v. CITY OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First Department. April 22, 1904.) Action by John P. Hale, Jr., against the city of New York. T. Connoly, for respondent. No opinion. Judgment affirmed, with costs, on the authority of People v. Rich, 36 App. Div. 60, 56 N. Y. Supp. 277. HAMILTON, Respondent, v. FARNHAM, Appellant. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) Action by William J. Hamilton against Paulding Farnham. No opinion. Judgment affirmed, with costs. FREEDMAN, P. J. Plaintiff brought this action, claiming to be the lessee of certain premises which he sublet to the firm of Singer & Sherman. These subtenants used the premises for the manufacture of cigarettes. Upon the dissolution of their partnership they sold some of their machinery to this defendant. The plaintiff alleges that the defendant, in removing the machinery so purchased, damaged the premises by breaking the ceilings, etc., which by the terms of plaintiff's lease the plaintiff was bound to repair. Plaintiff was the only witness who testified that the alleged damages were done by the defendant. The defendant and two other witnesses testified that the defendant did not damage, but that the machinery purchased by him was all taken apart by his grantors, and that he found such machinery lying on the floor ready to be removed, which he did without doing any damage. There was a sharp conflict In re HAMMOND TYPEWRITER CO. In of testimony. After the court rendered a judg-re HAMMOND. (Supreme Court, Appellate ment in favor of the plaintiff, the defendant moved for a new trial upon the ground of newly discovered evidence. This appeal is from the judgment, and also from the order denying a new trial. The testimony set forth in the affidavits used upon the motion for a new trial is clearly material upon the issues in the case, and we think the interests of justice would be best subserved by granting a new trial. Judgment Division, First Department. April 15, 1904.) In the matter of the Hammond Typewriter Company and of James B. Hammond. R. D. Benedict, for appellant. W. Lindsay, for respondent. Order modified by reducing the sum of $7,532.81, to be paid under the terms of the order, to the sum of $5,000, and, as modified, affirmed, without costs of this appeal to either party. and 121 New York State Reporter HARVEY MEDICAL COLLEGE, Respond- and others. No opinion. Judgment affirmed, ent, v. COCHEU, Appellant. (Supreme Court, with costs. Appellate Division, Second Department. April 22, 1904.) Action by the Harvey Medical College against Fred C. Cocheu. No opinion. Judgment reversed, and new trial granted, costs to abide the event, for error in ruling in the exclusion of evidence at folios 45 to 48, inclusive, in the printed case on appeal. HAYES v. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. March 18, 1904.) Action by John Hayes against the city of New York. No opinion. Motion granted, with $10 costs. HAYES, Respondent, v. MOORE, Appellant. (Supreme Court, Appellate Division, First Department. April 8, 1904.) Action by Bridget Hayes against William L. Moore. G. Zabriskie, for appellant. J. B. Marshall, for respondent. No opinion. Judgment and order affirmed, with costs. HOADLEY, Respondent, v. LEOPOLD et al., Appellants. (Supreme Court, Appellate Division, First Department. April 8, 1904.) A tion by Alfred H. Hoadley against James Leopold and another. From an interlocutory order restraining defendants pendente lite from selling certain stocks, they appeal. Affirmed. Count land V. Anable, for appellants. William N. Cohen, for respondent. PER CURIAM. We think that the questions involved should be disposed of at the trial, and not upon affidavits; and without, therefore, considering or passing upon the merits, whit should be left until the trial can be had, we think that the injunction order should remain Accordingly, the order appealed from is affic ed, with $10 costs and disbursements to abide the event. HOME FIRE & MARINE INS. CO. OF HIGGINS, Respondent, v. POWELL et al. Appellants. (Supreme Court, Appellate Divi PER CURIAM. sion. Second Department. April 15, 1904.) Acing motion for new tion by John Higgins against Sarah C. Powell firmed, with costs. Judgment and order deny trial upon the minutes af Order denying motion for a new trial upon the ground of newly-discov-| 22, 1904.) Action by Charles H. Hutwelkers ered evidence affirmed, with disbursements. In re HOPKINS' WILL. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) In the matter of the probate of the will of Robert E. Hopkins, deceased. No opinion. Motion for reargument granted, and case set down for argument on May 31, 1904. HOPKINS, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, Appellate Division, First Department, March 25, 1904.) Action by John Hopkins against the Metropolitan Street Railway Company. C. F. Brown, for appellant. T. E. Munday, for re spondent. No opinion. Judgment and order affirmed, with costs. HORNE, Appellant, v. ACKLEY et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. March 22, 1904.) Action by Walter P. Horne against Griffin T. Ackley and others. PER CURIAM. Judgment and order affirmed, with costs. WILLIAMS and STOVER, JJ., dissent. HUBER et al. v. CASE et al. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) Action by Helen Huber and others against Franklin B. Case, Jr., and others. No opinion. Order affirmed, with $10 costs and disbursements, on opinion of Huber v. Case (decided herewith) 87 N. Y. Supp. 663. and others against Samuel L. Bruck and Mendel Schulman. No opinion. Judgment of the Municipal Court aflirmed, by default, with costs. IESIEF v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. March 15, 1904.) Action by Peter Iesief against the New York Central & Hudson River Railroad Company. No opinion. Motion to dismiss appeal granted, with costs, including $10 costs of this motion. IRON NAT. BANK OF PLATTSBURG, Respondent, v. DOLGE et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. March 15, 1904.) Action by the Iron National Bank of Plattsburg against Alfred Dolge and others. No opinion. Order affirmed, with $10 costs and disbursements. IRVING SAV. INST. v. SMITH et al. (Supreme Court, Appellate Division, First Department. April 15, 1904.) Action by the Irving Savings Institution against Arthur E. Smith and others. No opinion. Motion granted, with $10 costs. JARVIS, Respondent, v. HIGH GROUND DAIRY CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) Action by Frank Jarvis against the High Ground Dairy Company. No opinion. Judgment of the Municipal Court affirmed, with costs. HURD, Respondent, v. TAYLOR, Appellant. (Supreme Court, Appellate Division, Second DeJAYNE, Appellant, v. BROWN, Respondent. (Supreme Court, Appellate Division, Fourth Department. March 15, 1904.) Action by F. Sew-F. Jayne against Mary F. Brown. No opinion. partment. April 29, 1904.) Action by Andrew ard Hurd against George M. Taylor. Judgment affirmed, with costs, on the opinion of Mr. Justice Wilmot M. Smith at Special Term. PER CURIAM. Judgment and order affirmed, with costs. Held, that the question of the illegality of the contract was properly submitted to the jury. MCLENNAN, P. J., and WILLIAMS, J., dissent, upon the ground that the evidence conclusively establishes that the agreement under which the plaintiff seeks to recover was a wager contract, and was understood by the parties to be such, and that therefore the plaintiff is not entitled to recover. In re HURLEY. (Supreme Court, Appellate Division, Second Department. March 15, 1904.) In the matter of the application of William F. Hurley for admission to the bar. No opinion. Application granted. HUTCHINSON v. SIMPSON et al. (Supreme Court, Appellate Division, First Department. April 22, 1904.) Action by Archibald A. Hutchinson against John W. Simpson and others. No opinion. Motion denied. JENNIE CLARKSON HOME FOR CHILDREN, Respondent, v. UNION PACIFIC R. CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. March 25, 1904.) Action by the Jennie Clarkson Home for Children against the Union Pacific Railroad Company and another. From a judgment for plaintiff (83 N. Y. Supp. 913), defendants appeal. Affirmed. Austen O. Fox, for appellant Gibson. Pierce & Greer, for appellant Union Pac. Ry. Co. Henry W. Sackett, for respondent. INGRAHAM, J. The questions presented in this case are the same as those determined in the case of Jennie Clarkson Home for Chil dren v. Chesapeake & Ohio Railway Company decided herewith) 87 N. Y. Supp. 348. The judgment in this case, however, gave to the plaintiff a judgment against the defendant Union Pacific Railroad Company and Robert Gibson, as general partner of the limited partnership of H. Knickerbocker & Co. For the HUTWELKERS et al., Respondents, V. reasons stated in the case of Jennie ClarksoD BRUCK et al., Appellants. (Supreme Court, Home for Children v. Chesapeake & Ohio RailAppellate Division, Second Department. Aprilway Company, we have reached the conclusion 87 N.Y.S.-72 and 121 New York State Reporter that the plaintiff is not entitled to judgment against the defendant Gibson, and the judgment must therefore be reversed as to Gibson, and the complaint dismissed, with costs to Gibson against the plaintiff. The judgment against the Union Pacific Railroad Company is affirmed, with costs to the plaintiff against the Union Pacific Railroad Company. VAN BRUNT, P. J., concurs in result. HATCH, J. I concur in the opinion of Mr. Justice INGRAHAM, so far as it disposes of the question arising between the railroad company and the plaintiff. I also think that the plaintiff is entitled to the judgment which it has obtained against Gibson. The form which the trial of the action assumed conferred authority upon the court to award any relief which the facts warranted; and, as it appeared that the defendant Gibson could be made liable for a conversion of the proceeds of the bonds, it was proper for the court to award the judgment against him which it did. I am, therefore, for the affirmance of the judgment in its entirety. The judgment should be affirmed, with costs. PATTERSON and LAUGHLIN, JJ. We concur in the opinion of Mr. Justice INGRAHAM, except so far as the liability of the defendant Gibson to the plaintiff is concerned, and with respect to that we concur in the opinion of Mr. Justice HATCH. JENNIE CLARKSON HOME FOR CHIL DREN, Respondent, v. MISSOURI, K. & T. RY. CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. March 25, 1904.) Action by the Jennie Clarkson Home for Children against the Missouri, Kansas & Texas Railway Company and another. From a judgment for plaintiff (83 N. Y. Supp. 913), defendants appeal. Affirmed. Ward, Hayden & Satterlee, for appellant Missouri, K. & T. Ry. Co. William R. Bronk, for appellant Gibson. Sackett & McQuaid, for respondent. INGRAHAM, J. The questions presented upon this appeal are the same as those determined in the case of Jennie Clarkson Home for Children v. Chesapeake & Ohio Railway Co. (decided herewith), 87 N. Y. Supp. 348; and for the reasons stated in that case the judgment appealed from should be modified, by requiring the Missouri, Kansas & Texas Railway Company to restore to the plaintiff the bonds which it has illegally transferred, or, in default of the delivery of such bonds to the plaintiff, the plaintiff should have judgment for the value of the bonds as found by the court, with interest, and that the defendant the Missouri, Kansas & Texas Railway Company is entitled to judgment against the defendant Gibson for the amount that it is required to pay to the plaintiff as the value of the bonds, with interest thereon, and, as modified, the judgment should be affirmed, with costs to the plaintiff. VAN BRUNT, P. J., concurs in result. HATCH, J. I concur in the opinion of Mr. Justice INGRAHAM so far as it disposes of the question arising between the railway company and the plaintiff, and also between the railway company and Gibson. I also think that the plaintiff is entitled to the judgment which it has obtained against Gibson. The form which the trial of the action assumed conferred authority upon the court to award any relief which the facts warranted; and, as it appeared that the defendant Gibson could be made liable for a conversion of the proceeds of the bonds, it was proper for the court to award the judgment against him which it did. I am, therefore, for the affirmance of the judgment in its entirety. The judgment should be affirmed, with costs, PATTERSON and LAUGHLIN, JJ. We concur in the opinion of Mr. Justice INGRAHAM, except so far as the liability of the de fendant Gibson to the plaintiff is concerned, and with respect to that we concur in the opinion of Mr. Justice HATCH. JENNINGS, Respondent, v. NICHOLS et al., Appellants. (Supreme Court, Appellate Di vision, Third Department. March 15, 1904) Action by Herbert T. Jennings, as receiver of the Oneonta, Cooperstown & Richfield Springs Railway Company, against Morton C. Nichols and others. No opinion. Appeal dismissed, on stipulation, without costs. JEWELL, Respondent, v. CITY OF MT. VERNON, Appellant. (Supreme Court, Appe late Division, Second Department. April 2 1904.) Action by William Jewell against the city of Mt. Vernon. No opinion. Motion for reargument denied, with $10 costs. JOHNSON v. ROACH. (Supreme Court. Appellate Division, First Department. Apri 8, 1904.) Action by Mary M. Johnson against Edward Roach. No opinion. Motion granted. JONES, Respondent, V. BROOKLYN HEIGHTS R. CO., Appellant (two cases (Supreme Court, Appellate Division, Second Department. April 22, 1904.) Actions by Aths lia Jones and by George E. Jones against the Brooklyn Heights Railroad Company. PER CURIAM. We do not consider that the determination of the appeals from the ders in these cases affects the question which it is suggested in the moving papers was rus and determined upon the trials of the cass s to the admissibility of the release as evideza. upon the measure of damages; and these L tions are therefore denied. KEIM v. TOWNSEND. (Supreme Court Appellate Division, First Department. April 8, 1904.) Action by Frederick Keim agai David C. Townsend. No opinion. Motion d nied. KENT, Appellant, v. NEW YORK, N. H. H. R. CO., Respondent. (Supreme Court, A pellate Division, Second Department. Marc 18, 1904.) Action by James L. Kent, as ministrator of the goods, chattels, and credis of John E. Kent, deceased, against the New York, New Haven & Hartford Railroad Com pany. PER CURIAM. Judgment reversed, and per trial granted, costs to abide the event, on asthority of Strauss v. New York, New Hare |