and 121 New York State Reporter preme Court, Appellate Division, First Depart- [ ment. March 25, 1904.) Proceeding by the people of the state of New York, on the relation of Barnard College, against James L. Wells and others. S. B. Brownell, for appellant. G. S. Coleman, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. PEOPLE ex rel. CONINE, Appellant, v. STEUBEN COUNTY et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. March 29, 1904.) Proceeding by the people of the state of New York, on the relation of Gamaliel T. Conine, against the county of Steuben and others. No opinion. Judgment and order affirmed, with costs, upon the opinion of NASH, J. (85 N. Y. Supp. 244), delivered at special term. PEOPLE ex rel. DURAND-RUEL, Appellant, v. WELLS et al., Respondents. (Supreme Court, Appellate Division, First Department. March 25, 1904.) Proceeding by the people of the state of New York, on the relation of George Durand-Ruel, against James L. Wells and others. F. R. Coudert, for appellant. G. S. Coleman, for respondents. No opinion. Order (83 N. Y. Supp. 936) affirmed, with $10 costs and disbursements. PEOPLE ex rel. ELY v. GROUT, Comptroller. (Supreme Court, Appellate Division, First Department. March 18, 1904.) Proceeding by the people of the state of New York on the relation of Ambrose K. Ely, against Edward M. Grout, comptroller. No opinion. Motion granted, with $10 costs. PEOPLE ex rel. FRANK v. BOARD OF EDUCATION. (Supreme Court. Appellate Division, First Department. March 18, 1904.) Proceeding by the people of the state of New York, on the relation of Augusta B. Frank, against the Board of Education. No opinion. Motion granted, with $10 costs. PEOPLE ex rel. GOETZ SILK MFG. CO., Respondent, v. WELLS et al., Appellants. (Su preme Court, Appellate Division, First Department. April 8, 1904.) Proceeding by the people of the state of New York, on the relation of the Goetz Silk Manufacturing Company, against James L. Wells and others. G. S. Coleman, for appellants. W. A. McQuaid, for respondent. No opinion. Order (85 N. Y. Supp. 533) affirmed, with costs. PEOPLE ex rel. GOLER v. BOARD OF SUP'RS OF MONROE COUNTY. (Supreme Court, Appellate Division. Fourth Department. March 22, 1904.) Proceeding by the people of the state of New York, on the relation of George W. Goler, against the board of supervisors of the county of Monroe. PER CURIAM. Writ of certiorari to review the determination of the board of supervisors of Monroe county dismissed, with $50 costs and disbursements against relator. PEOPLE ex rel. GRAHAM v. STUDWELL, Supervisor, et al. (Supreme Court, Appellate Division, Second Department. March 15, 194. Proceeding by the people of the state of New York, on the relation of Samuel H. Graham. against Edwin F. Studwell, as supervisor, and others, composing the town board of the town of Rye. No opinion. Motion granted, and order resettled and signed. PEOPLE ex rel. GRANT ▼. GREENE, Police Com'r. (Supreme Court, Appellate Division, First Department. April 15, 1904.) Certiorari, on the relation of Donald Grant, to review the determination of Francis V. Greene, as police commissioner, dismissing relator from the police force. Writ sustained. Frank S. Black, for relator. Terence Farley, for respondent. PATTERSON, J. The relator, an inspector in the police department of the city of New York, was tried before the deputy police com missioner upon charges, and was dismissed by the police commissioner from the force. The charges made against him were substantialy the same as those preferred against Police Captain Stephenson, who was also convicted by the police commissioner and dismissed from the force, but who has been reinstated by this court (87 N. Y. Supp. 172) on a reversal of the conviction. The evidence in the record now b fore us is, upon the substantial matters involved, identical with that taken before the police commissioner on the trial of Stephenson. and it appears that the record of the evidence taken in the Stephenson Case was offered an received as that upon which the findings of the police commissioner were made in the case at bar. The only additional proof seems to consist of the testimony of Police Commissioner Partridge and of the relator himself and of James Haggerty, and some exhibits, which in no way strengthen the case against the present relator. In that state of the record, the finding of the commissioner that the relator was guilty of the charges against him must be set aside for insufficiency of evidence to establish any one of the charges upon which the relator was ar raigned and tried. The proceedings must be annulled, and the writ of certiorari sustained. and the relator reinstated in his former position, with $50 costs and disbursements. VAN BRUNT, P. J., and MCLAUGHLIN and LAUGHLIN, JJ., concar. INGRAHAM, J. I concur, as concluded by the Stephenson Case, 87 N. Y. Supp. 172. PEOPLE ex rel. HUSTED et al., Respondents, v. BOARD OF TRUSTEES OF VIL LAGE OF WHITE PLAINS. Appellants (three cases). (Supreme Court, Appellate Dive sion, Second Department. April 15, 1904) Proceedings by the people of the state of Now York, on the relation of Harvey Husted and others, against the board of trustees of the village of White Plains. No opinion. Orders affirmed. with $10 costs and disbursements, on the opinion of Mr. Justice KEOGH at Special Term. PEOPLE ex rel. LA MOTTE, Appellant, v. NEW YORK CATHOLIC PROTECTORY, Respondent. (Supreme Court, Appellate Division, First Department. April 8, 1904.) Proceeding by the people of the state of New York, on the relation of Antonio La Motte, against the New York Catholic Protectory. E. Sandford, for appellant. J. T. Ryan, for respondent No opinion. Order affirmed, with $10 costs and disbursements. PEOPLE ex rel. LEFFERTS, Respondent, V. MCCLELLAN et al., Appellants. (Supreme Court, Appellate Division, Second Department. March 18, 1904.) Proceeding by the people of the state of New York, on the relation of Robert Lefferts, against George B. McClellan and others. composing the board of estimate and apportionment of the city of New York. PER CURIAM. Order affirmed, with $10 costs and disbursements. BARTLETT and JENKS, JJ., dissent, upon the ground that it does not appear that the resolution of the local board of Flatbush has ever been presented to the existing board of estimate and apportionment, but being of the opinion that, if it had been so presented, the order below would have been proper. PEOPLE ex rel. LORD v. FEITNER, (Supreme Court, Appellate Division, First Department. March 18, 1904.) Proceeding by the people of the state of New York. on the relation of Elizabeth S. Lord, against Thomas L. Feitner. No opinion. Order resettled, on payment by relator of costs and disbursements of defendant on the appeal to the Court of Appeals. See 80 N. Y. Supp. 534. PEOPLE ex rel. LYON v. VAN DE CARR. (Supreme Court. Appellate Division, First Department. March 18, 1904.) Proceeding by the people of the state of New York, on the relation of Samuel Lyon, against John D. Van De Carr. No opinion. Motion granted. PEOPLE ex rel. MCCABE et al., Respondents, v. MATTHIES et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 22, 1904.) Proceeding by the people of the state of New York, on the relation of William F. McCabe and another, against Charles A. Matthies and others. No opinion. Motion denied. PEOPLE ex rel. MCCABE et al., Respondents, v. MATTHIES et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) Proceeding by the people of the state of New York, on the relation of William F. McCabe and John Duffy, against Charles A. Matthies and others. No opinion. Motion granted. PEOPLE ex rel. McKEEWN, v. GREENE, Com'r. (Supreme Court, Appellate Division, First Department. April 22, 1904.) Proceeding by the people of the state of New York, on the relation of Joseph H. McKeewn, against Francis V. Greene, as commissioner. H. Ringrose, for relator. T. Farley, for respondent. No opinion. Writ dismissed, and proceedings affirmed, with costs. PEOPLE ex rel. MASONIC HALL & ASYLUM FUND, Appellant, v. WELLS et al., Respondents. (Supreme Court, Appellate Division, First Department. March 25, 1904.) Proceeding by the people of the state of New York, on the relation of Masonic Hall & Asylum Fund, against James L. Wells and others. A. Crook, for appellant. G. S. Coleman, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. PEOPLE ex rel. MASTEN, Respondent, v. MAXWELL. Appellant. (Supreme Court, Appellate Division, Second Department. April 22, 1904.) Proceeding by the people of the state Masten, against William H. Maxwell, as city of New York, on the relation of Minnie R. superintendent of schools of the city of New York. No opinion. Motion granted, and reargument ordered for Friday, April 29, 1904. PEOPLE ex rel. PETERSON v. GREENE, Com'r. (Supreme Court, Appellate Division, First Department. April 22, 1904.) Proceeding by the people of the state of New York, on the relation of Robert S. Peterson, against Francis V. Greene, as commissioner, etc. L. J. Grant, for relator. T. Connoly, for respondent. No opinion. Writ dismissed, and proceedings affirmed, with costs. PEOPLE ex rel. SINCLAIR v. SINCLAIR. (Supreme Court. Appellate Division, First Department. April 15, 1904.) Proceeding by the people of the state of New York on the relation of Ella Sinclair, against Daniel A. Sinclair. No opinion. Motion denied. PEOPLE ex rel. VAN ALLEN et al. v. VAN BRUNT et al. PEOPLE ex rel. BURNETT et. al. v. SAME. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) Proceedings by the people of the state of New York, on the relation of Mary A. Van Allen and another, and on the relation of David H. Burnett and another, against Willis D. Van Brunt, president, and Henry H. Post and others, trustees, etc. No opinion. Motions denied, on condition that the relators print and prepare the papers. so that these matters may be argued at the next term of this court. PERLMAN v. BERNSTEIN et al. (Supreme Court, Appellate Division, First Department. April 15, 1904.) Action by David Perlman against Moses Bernstein and another. No opinion. Motion granted, as stated in memorandum per curiam. PERSSE v. GRAU. (Supreme Court, Appellate Division, First Department. March 18, 1904.) Action by Thomas H. Persse against Robert Grau. No opinion. Motion granted, so far as to dismiss appeal. and 121 New York State Reporter PETRI, Respondent, v. BIRKETT, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 15, 1904.) Action by Albert Petri against Clarence T. Birkett. No opinion. Judgment affirmed, with costs. PHETTEPACE v. LANE. (Supreme Court, Appellate Division, Third Department. March 15, 1904.) Action by Julian Phettepace against Smith Lane. No opinion. Motion granted, without costs. PIETROFESA v. DELAWARE, L. & W. R. CO. (Supreme Court, Appellate Division, First Department. March 25, 1904.) Action by Rocco Pietrofesa against the Delaware, Lackawanna & Western Railroad Company. No opinion. Motion denied. In re PRUDENTIAL INS. CO. OF AMERICA. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) In the matter of the application of the Prudential Insur ance Company of America for a writ of mandamus against Hon. William J. Gaynor, one of the Justices of the Supreme Court, to compel him to settle and sign a case on appeal, etc. PER CURIAM. This application must be de nied, on the ground that the case on appeal alleged to have been presented to Mr. Justice Gaynor for signature, under rule 35 of the general rules of practice, did not set out the exhibits or the substance thereof. An appellant cannot be required to print the case on appeal as corrected and settled by the trial judge to entitle him to have it signed and ordered on file; but, if it includes any exhibits, the sitstance thereof must be stated in the case, or the exhibits must be set out in full, if the trial judge so direct. It is apparent from the statement of Mr. Justice Gaynor. in answer to the motion arising upon the order to show cause herein, that he is entirely willing to sign and order on file a manuscript or typewritten case prepared in accordance with his corrections, if it contain such exhibits. We have no doubt that the appellant, upon complying with this requirement, can obtain from him the desired PER CURIAM. Judgment and order affirm-signature and order, under rule 35 of the gened, with costs. Held, that while the complaint eral rules of practice. contains some allegations appropriate only in an action upon contract for services, yet it contains all the allegations necessary to constitute a cause of action for damages for breach of the contract. The cause of action may be regarded by this court as one for damages, and the other The allegations disregarded as surplusage. amount of the recovery under the evidence would be practically the same in either form of action. The distinction between the two, under the facts of this case, is technical rather than real. PLEWES, Respondent, v. PHILADELPHIA CASUALTY CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 29, 1904.) Action by Stanley E. Plewes against the Philadelphia Casualty Company. MCLENNAN, P. J., dissents, upon the ground that the sole cause of action alleged in the complaint is for services rendered, and the evidence wholly fails to establish it, but only tends to prove a cause of action for damages for a breach of a contract of employment, and therefore, under the authorities, the plaintiff is not entitled to recover. Howard v. Daly, 61 N. Y. 362, 19 Am. Rep. 285; Weed v. Burt, 78 N. Y. 191; Perry v. Dickerson, 85 N. Y. 345, 39 Am. Rep. 663; Dexter v. Ivins, 133 N. Y. 551, 30 N. E. 594. PLUM, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court. Appellate Division, Second Department. April 29, 1904.) Action by Marietta Plum against the Metropolitan Street Railway Company. No opinion. Motion for reargument denied, with $10 costs. Motion for leave to appeal to the Court of Appeals denied, without costs. PRINCE, Appellant, v. ALTER, Respondent. (Supreme Court, Appellate Division, Second Department. March 18. 1904.) Action by Delia L. Prince against Harris Alter. No opinion. Judgment of the Municipal Court affirmed, with costs. QUANCHI, Appellant, v. AILINGER, Re spondent. (Supreme Court, Appellate Division, First Department. March 25, 1904.) Action by Lewis Quanchi against George G. Ailinger, as president. L. L. Kellogg, for appellant. A Steckler, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. V. QUINN, Respondent, QUINN, Appellant, v. NEW YORK BREAD CO. et al., Respondents. (Supreme Court, Ap pellate Division, First Department. April & 1904.) Action by Charles J. Quinn against the New York Bread Company and others. C. O'Connor, for appellant. J. V. Bouvier, Jr., fot respondents. No opinion. Judgment and order affirmed, with costs. RAQUETTE FALLS LAND CO., Respondent, v. INTERNATIONAL PAPER CO., Ap (Supreme Court, Appellate Division pellant. Fourth Department. April 5, 1904.) Action by the Raquette Falls Land Company against the International Paper Company. PER CURIAM. Judgment (84 N. Y. Supp. 836) affirmed, with costs. WILLIAMS, J., not sitting. RAY, Appellant, v. MAHONEY, Respondent. (Supreme Court, Appellate Division, Second De Action by George partment. April 29, 1904.) W. Ray against James Mahoney. No opinion. Motion denied, with $10 costs. REDDING v. AMERICAN DISTRIBUT- ROTHSCHILD, Appellant, v. DREYFUS, ING CO. et al. (Supreme Court, Appellate Di- Respondent. (Supreme Court, Appellate Divivision, Second Department. March 18, 1904.), sion, First Department. April 22, 1904.) AcAction by Ralph W. Redding against the Amer- tion by Victor H. Rothschild against Isaac ican Distributing Company and others. No Dreyfus. B. Tuska, for appellant. J. C. Gugopinion. Order affirmed, with $10 costs and dis- genheimer, for respondent. No opinion. Order bursements. affirmed, with $10 costs and disbursements. REDMOND v. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department, March 25, 1904.) Action by Michael Redmond against the city of New York. L. L Kellogg, for plaintiff. T. Farley, for defendant. No opinion. Judgment affirmed, without costs. REED, Respondent, v. NEW YORK & R. GAS CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) Action by Thomas M. Reed against the New York & Richmond Gas Company. No opinion. Motion denied, with $10 costs. ROBINSON et al., Respondents, v. NEW YORK ELEVATED R. CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. April 8, 1904.) Action by Frederick S. Robinson, as trustee, and others, against the New York Elevated Railroad Company and others. C. N. Morgan, for appellants. J. A. Weekes, for respondents. No opinion. Judgment affirmed, with costs. ROMAN, Appellant, v. TAYLOR, Respondent. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) Action by James D. Roman against Edmund K. Taylor. No opinion. Motion for reargument denied, with $10 costs. RONDE, Respondent, v. CRUIKSHANK, Appellant. (Supreme Court, Appellate Division, First Department, March 25, 1904.) Action by Frank Ronde against Clarence D. Cruikshank. C. D. Cruikshank, for appellant. A. Mayer, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. ROONEY, Respondent, v. BODKIN et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 29, 1904.) Action by Margaret Rooney against Martin R. Bodkin and others. No opinion. Motion granted, and order resettled. In re RYER. (Supreme Court, Appellate Division, First Department. March 18, 1904.) In the matter of John B. Ryer. No opinion. Motion denied. SAMPTER v. EDELSVARD et al. (Supreme Court, Appellate Division, Second Department. March 18, 1904.) Action by Arnold Sampter against Gustaf A. Edelsvard and others. No opinion. Judgment, so far as appealed from, affirmed, with costs. SAWTELL, Appellant, v. DE MONDE, Respondent. (Supreme Court, Appellate Division, Second Department. March 15, 1904.) Action by Emma P. Sawtell against Agnes E. De Monde. No opinion. Order affirmed, by default, with $10 costs and disbursements. SAXTON v. SEBRING et al. (Supreme Court, Appellate Division, Fourth Department. March 15, 1904.) Action by Frank J. Saxton against James O. Sebring and others. PER CURIAM. Motion to correct printed case on appeal granted, with $10 costs, and the printed case directed to be corrected accordingly, but upon condition that the respondents stipulate to set the case down for argument not later than Monday of the fourth week of the present term of this court, at the option of the appellant. In the event of the failure of the respondents to give such stipulation, the motion is granted, without costs. SCHLOTTERER, Respondent, v. BROOKLYN & N. Y. FERRY CO., Appellant. (Supreme Court. Appellate Division, Second Department. March 15, 1904.) Action by Louisa Schlotterer, an infant, against the Brooklyn & New York Ferry Company. No opinion. Motion denied. SCHNEIDER, Respondent, V. HIGH GROUND DAIRY CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 15, 1904.) Action by Philip Schneider against the High Ground Dairy Company. No opinion. Judgment of the Municipal Court afAc-firmed, with costs. ROSENFELD, Appellant, v. DAVIDSON, Respondent. (Supreme Court, Appellate Division, First Department, March 25, 1904.) tion by Amy R. Rosenfeld against Mary M. Davidson. Ö. Horwitz, for appellant. S. B. Livingston, for respondent. PER CURIAM. Judgment and order affirmed, with costs. PATTERSON and O'BRIEN, JJ., dissent. ROSS v. BAYER-GARDNER-HIMES CO. (Supreme Court, Appellate Division, First Department. April 15, 1904.) Action by Charles R. Ross against the Bayer-Gardner-Himes Company. No opinion. Motion denied, with $10 costs. SCHOMBURG et al., Respondents, v. COHEN, Appellant. (Supreme Court, Appellate Division, Second Department. March 18, 1904.) Action by Frederick H. Schomburg and Henry E. A. Wolff, copartners, etc., against Max Cohen. No opinion. Judgment of the Municipal Court affirmed, with costs. SCOTT, Respondent, v. CONN, Appellant. (Supreme Court, Appellate Division, First Department. April 8, 1904.) Action by Walter SHAPER, Respondent, v. DAVIS, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 29, 1904.) Action by John H. Shaper against Mary E. C. Davis. PER CURIAM. Judgment reversed, and new trial ordered, with costs to the appellant to abide event, upon questions of law and of fact, unless the plaintiff stipulates to reduce the verdict by deducting therefrom the sum of $103 as of the date of the rendition thereof, in which event the judgment, as so modified, and the order, are affirmed, without costs of this appeal to either party. Held, that the evidence does not satisfactorily establish that the defendant was suffering from the disease claimed by the plaintiff, and which warranted a charge of two dollars per day from the 25th day of January to the 15th day of July, 1902, as allowed by the referee. SPRING and STOVER, JJ., dissent. SHEEHAN v. ERBE. (Supreme Court, Appellate Division, First Department. March 18, 1904.) Action by William Sheehan against William Erbe. No opinion. Motion denied, with $10 costs. SIBBERN, Respondent, v. REISNER, Appellant. (Supreme Court, Appellate Division, Second Department. April 22, 1904.) Action by Rudolph T. Sibbern against Harry Reisner. No opinion. Judgment of the Municipal Court affirmed, by default, with costs. SILER, Respondent, v. BATH & H. R. CO., Appellant. (Supreme Court, Appellate Division. Fourth Department. March 29, 1904.) Action by Charles Siler against the Bath & Ha mondsport Railroad Company. Held PER CURIAM. Order granting new trial reversed, with costs, and judgment directed in favor of the defendant upon the verdict. that, the jury having found the plaintiff was not free from contributory negligence, he was not entitled to recover, even although the defendant was guilty of negligence. SIMPSON v. CITY OF NEW YORK. (S ment. March 18, 1904.) Action by Frederick preme Court, Appellate Division, First Depart P. Simpson against the city of New York. No opinion. Motion granted, with $10 costs. SMITH, Respondent, v. HERTER, Appel lant. (Supreme Court, Appellate Division, First Action by E4Department, March 25, 1904.) ward Smith against Maria A. Herter. H. E Wesselman, for appellant. P. S. Menken, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. SMITH, Respondent, v. KING et al., ArApril 15, 1904.) Amin pellants. (Supreme Court, Appellate Divi im Second Department. by Nicholas Smith, by his guardian ad li Catharine Smith, against Jose Berre King and George R. King. No opinion. Judgment and order unanimously affirmed, with costs. SMITH, Respondent, v. LAZIER GAS ENGINE CO., Appellant. (Supreme Court, A pellate Division, Fourth Department. March 29, 1904.) Action by Henry Smith against the No opinie Lazier Gas Engine Company. Judgment and order affirmed, with costs, "por opinion of NASH, J., delivered at Special Tera SEIDENSPINNER, Respondent, v. MET ROPOLITAN LIFE INS CO., Appellat (Supreme Court, Appellate Division, Fourth Department. March 22, 1904.) Action by Ene lie R. Seidenspinner against the Metropolita: Life Insurance Company. No opinion. Ju ment affirmed, with costs, on the authority f same case in this court. 70 App. Div. 476, 74 N. Y. Supp. 1108. SOMERS. Respondent, v. GUDE, Appellant (Supreme Court, Appellate Division. First De partment. April 22, 1904.) Action by Jan H Somers against Oscar J. Gude. A. S Gilbert for appellant. J. H. Land, for respondent. |