NRIQUES et al., Appellants, v. MIRIAM RN MEMORIAL HOME ASS'N et al., ndents. (Supreme Court, Appellate DiFirst Department. April 22, 1898.) a by Leila O. Henriques and another st the Miriam Osborn Memorial Home Asion, impleaded. R CURIAM. This case involves the prequestions that have been already decided e case of Henriques v. Yale University, 51 . Supp. 284; and, for the reasons stated in opinion in that case, the judgment herein be affirmed, with costs. COFFMAN, Respondent, v. SOLVAY PROSS CO., Appellant. (Supreme Court, AppelDivision, Fourth Department. May 7, 8.) Action by Jacob Hoffman against the vay Process Company. E. J. Page and is L. Waters, for appellant. P. J. Ryan, respondent. PER CURIAM. Judgment and order affirmwith costs. ADAMS, J. (dissenting). The scaffold or tform upon which the plaintiff was at work the time of the accident was an ordinary trivance, and there is no dispute whatever to its character. It consisted simply of two nks, one end of which rested upon a wooden rse, and the other upon a narrow cleat atched to the window casing. The planks were t nailed or fastened at either end, and this et was perfectly patent to the most casual server. Shortly after the plaintiff mounted e platform, the weight of the two persons ereon caused it to sag in the center, in conquence of which the end towards the window pped off the cleat, as might have been ex-cted. The plaintiff had abundant opportunity acquaint himself with the condition of the ructure had he made the slightest effort to o so; for he testified that as he stood upon it e was only eight feet from the window, that e could have seen if he had looked that the ards were not fastened to the cleat, and that would not have taken him a minute to disover that fact. In these circumstances, eems to me that it will hardly do to say that, ecause the platform had been constructed by he defendant, the plaintiff had a right to asume that it was all right and perfectly safe. he case relied upon by the plaintiff (Benzing Steinway, 101 N. Y. 547, 5 N. E. 449) was very different in many respects from the one we are considering. In that case much stress was laid upon the fact that the plaintiff had no pportunity to inspect the defective platform beEore it gave way; that it was doubtful if he could have discovered its defective condition had he looked; and that he had the personal as it surance of the defendant's foreman that it was entirely safe. That case, therefore, with these elements in it, presented an issue of fact which ought properly to have been submitted to the jury; but here we think the rule which requires a party to take notice of a risk or defect which is perfectly obvious should have been applied; and inasmuch as the plaintiff conceded that the defect was obvious, and that he was utterly indifferent to it, he ought, in my opinion, to have been nonsuited. Shaw v. Sheldon, 103 N. Y. 667, 9 N. E. 183; Weston v. City of Troy, 139 N. Y. 281, 34 N. E. 780; Diebolt v. Baking Co., 72 Hun, 403, 25 N. Y. Supp. 205. March HOPKINS v. CLARK. (Supreme Court, Appellate Division, Fourth Department. 26, 1898.) In the matter of the application of Burton J. Hopkins for an order that an execution issue, etc., against Frank W. Clark, as administrator with the will annexed of John Clark, deceased. No opinion. Motion granted, with $10 costs, unless the appellant shall, within 20 days, make, serve, and file an undertaking, and pay $10 costs of opposing the motion. HOWARD et al., Appellants, v. CITY OF ROCHESTER, Respondent. (Supreme Court, 26, 1898.) Action by Henry C. Howard and Appellate Division, Fourth Department. March others against the city of Rochester. ion. Judgment affirmed, with costs. No opin HYLAND, Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. March 26, 1898.) Action by George Hyland against the New York Central & Hudson River Railroad Company. No opinion. Motion for reargument denied, without prejudice to an application for leave to appeal to the court of appeals. See 41 N. Y. Supp. 1119, and 48 N. Y. Supp. 416. In re INTERNATIONAL SOC. OF HOTEL EMPLOYES. (Supreme Court, Appellate Division, First Department. the matter of the International Society of Hotel April 7, 1898.) In Employés. No opinion. Motion granted, with $10 costs. ISAACS et al. v. CALDER. (Supreme Court, Appellate Division, First Department. April 7, 1898.) Action by David J. Isaacs and another against Mary E. Calder. No opinion. Motion granted, with $10 costs. KEE, Appellant, v. HIP SING TONG SOC., Respondent. (City Court of New York, GenMay 10, 1898.) Action by Quon eral Term. Kee against the Hip Sing Tong Society. J. P. Solomon, for appellant. George W. Glaze, for respondent. O'DWYER, J. The printed papers on appeal do not contain the papers upon which the warrant was granted, nor all the papers recited in the order appealed from; nor are they certified to by the clerk, as required by rule 8 of the rules of the city court, and such certificate is and 85 New York State Reporter. not waived by any stipulation on the part of the respondent. The appeals are therefore dismissed, with $10 costs on each appeal. Schuchmann, J., concurs. KEEN et al., Appellants, v. JOHNSON, Respondent. (Supreme Court, Appellate Division, First Department. May 20, 1898.) Appeal from special term. Action by Charles B. Keen and another against Charles A. Johnson. From an order striking case from special term calendar, plaintiffs appeal. Affirmed. R. B. Moffatt, for appellants. E. T. Paul, for respondent. PER CURIAM. The order, so far as it directs that this cause should be stricken from the special term calendar, was proper. The action should be tried at a trial term of the court, where it properly belongs. So much of the order, therefore, as grants the motion to strike the cause from the special term calendar, with costs, should be affirmed. But the court below, having all the facts before it, should not have provided for a further application as to the mode of trial. So much of the order, therefore, as grants leave to either party to apply as he may be advised for an order directing the mode of trial of issues in the action, should be stricken out. No costs to either party of this appeal. KELLY v. ERNEST. (Supreme Court, Appellate Division, First Department. April 7, 1898.) Action by Sydenham Kelly against Caroline J. Ernest. No opinion. Motion dismissed. See 49 N. Y. Supp. 896. KEMFF, Respondent, v. MARTIN et al., Appellants. (City Court of New York, General Term. May 20, 1898.) Action by George H. Kemff against George W. Martin and others. Henry B. Corey, for appellants. Julius Offenbach, for respondent. PER CURIAM. Order appealed from affirmed, with costs. KERBER, Respondent, v. NILES, Appellant. (Supreme Court, Appellate Term. February, 1898.) Action by Ferdinand Kerber against Nathaniel Niles. Henry T. Brennan, for appellant. Alfred & Charles Stecker, for respondent. No opinion. Judgment affirmed, with costs. See 48 N. Y. Supp. 444. LYMAN, Respondent, v. COREY, Appellan (Supreme Court, Appellate Division, Fourth D partment. March 26, 1898.) Action by Hen H. Lyman, as state commissioner of excise of the state of New York, against George C. Corey PER CURIAM. Order affirmed, with $10 costs and disbursements, without prejudice to a new motion to change the place of trial t any county. Held, that the moving affidavits are defective in that they fail to state the residen and address of the witnesses, also fail to state that the witnesses will testify to the facts a leged to be material to the defense. See Tuska v. Wood, 81 Hun, 79, 30 N. Y. Supp. 323 Hayes v. Garson, 25 App. Div. 116, 49 N. Y. Supp. 220; also, opinion of Green, J., in Ly man v. Gramercy Club (of this term) 50 N. Y. Supp. 1004. al., Appellants. (Supreme Court, Appellate Di MCCARTHY, Appellant, v. LEHIGH VAL R. CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. March 2 1898.) Action by Bridget McCarthy, as adminis tratrix, etc., against the Lehigh Valley Railroad Company. No with costs. opinion. Judgment affirmed, MCCLOSKEY, Appellant, v. NEW YORK & N. J. BRIDGE CO., Respondent. (Supreme March 29, 1898.) Court, Appellate Division, Second Department. Action by Felix McCloskey against the New York & New Jersey Bridge Company. $10 costs and disbursements, and motion_for No opinion. Order reversed. with preference granted, on the authority of Knox v. Dubroff, 17 App. Div. 290, 45 N. Y. Supp 271, on the ground that the right to a preference under rule 36 does not depend upon the value of the property attached. KITTINGER, Respondent, V. BUFFALO TRACTION CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 26, 1898.) Action by Joseph Kittinger against McCORD, Appellant, v. PRATT et al., Rethe Buffalo Traction Company, impleaded, etc. spondents. (Supreme Court, Appellate Division, No opinion. Motion granted, and questions fil-Fourth Department. March 26, 1898.) Action ed with the clerk. See 49 N. Y. Supp. 713. by Franklin D. McCord against Pratt & Lam KOCH, Respondent, V. NIES, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 26, 1898.) Action by Karl Koch against Charles Nies. No opinion. Judgment and order affirmed, with costs. KOENIG et al., Respondents, v. BLOOMGARTEN, Appellant. (Supreme Court, Appellate Division, Second Department. April 19, bert. No opinion. Order reversed, with $10 costs and disbursements, and motion denied. with $10 costs, without prejudice to a new motion on proper papers. MCINTYRE et al., Appellants, v. DAVID. vision, First Department. Respondent. (Supreme Court, Appellate Di March 25, 1898) Action by Thomas H. McIntyre and others against Theophilus David. W. H. Van Ben n, for appellant. G. J. Sproull, for re-nt. No opinion. Order affirmed, with sts and disbursements. AUGHLIN, Respondent, v. WINSTON, ant. (Supreme Court, Appellate Division, Department. March 26, 1898.) Action arles H. McLaughlin against Sarah R. on. No opinion. Order reversed, with sts and disbursements, and motion grant-swered the letter of September 25th, to the efith $10 costs to abide the event. MAHON, Respondent, v. SCHMIDT, Apit. (Supreme Court, Appellate Division, h Department. March 26, 1898.) Action homas F. McMahon against John L. idt. No opinion. Judgment and order ed, with costs. LEAN, Respondent, v. RYAN, Appellant. eme Court, Appellate Division, Second Dement. March 22, 1898.) Action by ArA. McLean against Dennis Ryan. No on. Order reversed, and motion granted, the defendant, within 30 days, paying the tiff $10 costs, and executing and delivering in a bond, with sufficient sureties to justify otice, and to be approved by a justice of supreme court, in the sum of $5,000, condid for the payment of any judgment that tiff may recover in this action; the judgand the proceedings thereunder, both in state and in Minnesota. to stand as securintil the final determination of the action. efault of the defendant's furnishing such 1. order appealed from affirmed, with $10 s and disbursements. MAHON, Respondent, v. LAKE SHORE . S. RY. CO., Appellant. (Supreme Court, ellate Division, Fourth Department. March 1898.) Action by Mary McMahon, as adstratrix, etc., against the Lake Shore & igan Southern Railway Company. No opinJudgment and order affirmed, with costs. NEIL, Appellant, v. RAINBOW, Respond(Supreme Court, Appellate Division, Third artment. May 4, 1898.) Action by Fred McNeil against Amos L. Rainbow. John Kellas, for appellant. J. B. Kline, for reident. ANDON, J. The plaintiff sued to recover 65 for services rendered to defendant and enses incurred, both at defendant's request. defendant lived in Syracuse, owned two st lots, 65 and 66, in Franklin county. The ta Clara Company had, as trespassers, cut in the timber upon the lots, and carried it y, and obliterated the lot lines. The plainlived near the lots, and wrote to the defendabout buying them, and defendant answerthat he was willing to sell. September 21, 5, plaintiff wrote defendant: "I will make 1 an offer on your lot 66. I will collect you per acre [meaning of the Santa Clara Comy] if you will let me have the lot." Septem25, 1895, defendant wrote to plaintiff: "I 1 take your offer of $10 per acre if you take two lots 65 and 66." September 30, 1895, endant wrote: "I have concluded myself to * * have you proceed and get my land surveyed, locating lots 65 and 66 soon as possible, and then the property will be in position for you to take and collect damages of the Lumber Co. I wish to have you hurry up the survey before it freezes up or snow gets too deep." Plaintiff did not answer this letter. This is the letter he relies upon. October 1st, before he received defendant's letter of September 30th, he anfect that there was a sportsman who wanted lot 66, and plaintiff would collect $10 if defendant would give him the land, and all he could get over $10 per acre. October 5, 1895, defendant answered plaintiff's letter of October 1st, saying: "You can have it, but I want you to take the whole amount, lots 65 and 66, the 72 acres, and you can have it by collecting me $10 per acre, and all you can get over and above that you can have for your trouble. You said it would not cost me anything." October 9th plaintiff writes the defendant: "Lot 66 is a very good lot, and I think I can get out of it at $10 per acre; but I think, if you had come up and saw 65, you would have let me had it for $6 per acre;" and then he speaks of ar ranging with his attorney to collect the damage, and pay the amount to defendant. He does not agree to take 65. Defendant did not reply. November 21st, plaintiff writes to defendant: "I am investigating said property 65 and 66, and, as soon as I complete the survey and get the corner set, I will let you know and have your money ready for you; and, if I will forward your money or said amount to your bank, will you deliver me a deed to the bank?" December 3d defendant wrote to plaintiff: "I wish to have the deal closed by Thursday, as I am going away. If you cannot close the deal and send me the money by that time, it will be no use to bother with it any longer. We shall have to declare the deal off." The defendant sold the lots to the Santa Clara Company the 14th December. Plaintiff did not tender defendant the money. There are other letters, but they do not vary the above. This action the lots and services in connection therewith, is to recover plaintiff's expenses in surveying which he incurred and rendered in October, 1895. The parties never met each other. Whether there was any completed contract between the parties was a question of fact upon the letters. I cannot see that their minds met upon anything. The plaintiff was willing to take lot 66. The defendant wanted to sell both lots. The plaintiff evidently went ahead to see if he could get $10 per acre out of lot 65, but he certainly never agreed to pay it if he should not get it. He never pretended that he was surveying at the defendant's charge, or that he was willing to do so. Probably what the plaintiff did led the Santa Clara Company to buy the lots, but, as the defendant had no certain contract with the plaintiff, he violated none. advise affirmance without opinion. I MAGILL, Appellant, v. NORTH DAKOTA MILLERS' ASS'N, Respondent. (Supreme Court, Appellate Division, Fourth Department. May 7, 1898.) Action by Robert J. Magill against North Dakota Millers' Association. and 85 New York State Reporter. Frank Harding, for appellant. Thomas R. | risdiction failing as to the principal, it must is Stone, for respondent. PER CURIAM. Order affirmed, with $10 costs and disbursements. See 47 N. Y. Supp. 1142. fail as to the incident. All that remains is GREEN, J. (dissenting). This action was commenced in the municipal court of Buffalo, upon a money demand. Judgment was rendered in favor of plaintiff for $45.50 damages, and $6.20 costs. From that judgment, defendant appealed to the special term of the supreme court, where the judgment appealed from was reversed. A judgment for costs was thereupon entered against the plaintiff in favor of the defendant for $34.72. From that judgment, the plaintiff appealed to this court. The case was regularly placed upon the calendar, moved and argued by the counsel for the respective parties. Such appeal was dismissed by the appel-ent upon the dismissal of an appeal in an a late court, "with costs," upon the ground that it had no jurisdiction. The remittitur of the appellate court was duly filed in the office of the clerk of the county of Erie, and thereupon defendant entered judgment against the plaintiff for $63.17, costs. Thereafter the defendant duly noticed the costs for retaxation. The plaintiff appeared and filed objections thereto; but the costs were retaxed by the clerk of the county of Erie, without reduction. Thereupon the plaintiff moved the court at special term to have the judgment vacated, which motion was denied; and from that order of denial this appeal is taken. The contention of the plaintiff is that the defendant was entitled only to $10 motion costs and disbursements. There was no motion made by the defendant to dismiss the appeal taken by plaintiff from the judgment entered upon the decision at special term; but the appeal was allowed to proceed, and the case was argued upon the merits. Counsel for defendant, however, upon such argument, insisted that the appeal should be dismissed, on the ground that the appellate court had no jurisdiction in the matter, and, in support of such contention, cited the opinion of the appellate court squarely holding that proposition. So it appears that defendant was fully cognizant of its rights in the matter, and that the appeal would have been dismissed upon motion. Instead of that, the defendant allowed the appeal to proceed; and upon its dismissal, in accordance with the request of defendant's counsel, made by him upon the argument and in his brief, it is now insisted that the plaintiff should be charged with a full bill of costs. This consideration alone, we think, ought to be sufficient to deny costs to the defendant, save motion costs and disbursements. "No costs should be allowed to the respondents, for the reason that they have neglected to raise the question until the final hearing. It was competent for them to move to have the appeal dismissed immediately upon its being heard. It is the invariable practice of the court of appeals to refuse costs in similar cases." Williams v. Fitch, 15 Barb. 656. There is another ground, also, for denying full costs, even though the court was empowered to grant them. The appeal was dismissed for want of jurisdiction in the case. "Not having jurisdiction of that, the general costs cannot be awarded. They are incident to the cause. Ju of this character; neither is there any auth costs. f the Code of Civil Procedure authorizing | Third Avenue Railroad Company. No opinion. bill of costs in this case. We are of the Judgment and order unanimously affirmed, with a, therefore, that the defendant is entitled o motion costs and disbursements. The should be reversed, but, under the circums of this case, without costs to either CONTGOMERY V. BUFFALO RY. CO. preme Court, Appellate Division, Fourth Dement. March 26, 1898.) Action by Edwin Montgomery against the Buffalo Railway pany. No opinion. Motion to amend the er so that it shall read as follows: "Judgnt and order reversed on the exceptions, not the facts." Granted. See 46 N. Y. Supp. 7, and 48 N. Y. Supp. 849. TOONEY, Respondent, v. NEW YORK NT. & H. R. R. CO., Appellant. (Supreme art, Appellate Division, Fourth Department. rch 26, 1898.) Action by William E. Moonagainst the New York Central & Hudson ver Railroad Company. No opinion. Mon for leave to appeal to the court of appeals ied, with $10 costs. See 48 N. Y. Supp. 19. MORGAN, Respondent, v. McDONALD et MURR, Respondent, v. WESTERN ASSUR. CO. OF CITY OF TORONTO, CANADA, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 26, 1898.) Action by Charles Murr against the Western Assurance Company of the City of Toronto, Canada. No opinion. Motion to amend the order, so that it shall read that the judgment and order were reversed on questions of law only, granted. See 48 N. Y. Supp. 757. MYERS, Respondent, v. AHERNS et al., ApFourth Department. March 26, 1898.) pellants. (Supreme Court, Appellate Division, Action by Joseph C. Myers against William G. and order affirmed, with costs. Aherns and another. No opinion. Judgment MYERS, Respondent, v. BUDLONG, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 26, 1898.) Action by Athea J. Myers against Lucy Budlong. No opinion. Judgment and order affirmed, with costs. MYERS et al., Appellants, v. WHEELER et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. March 26, 1898.) Action by John P. Myers and another, as executors, etc., against Bradley P. Wheeler and another, impleaded, etc. No opinion. Motion denied. See 48 N. Y. Supp. 611. NEUN, Respondent, v. ROCHESTER RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 26, 1898.) Action by George Neun, as administrator, etc.. against the Rochester Railway Company. No opinion. Judgment and order affirmed, with costs. All concur, except FOLLETT and GREEN, JJ., dissenting. NILSSON, Respondent, v. DE HAVEN, Appellant. (Supreme Court, Appellate Division, Second Department. March 29, 1898.) Action by Nils Nilsson against Hugh De Haven. opinion. Orders affirmed, with $10 costs and disbursements. No OPPENHEIMER, Respondent, v. MANHATTAN RY. CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. Action by Solomon OppenMarch 25, 1898.) heimer against the Manhattan Railway ComJ. T. Davies, for appellants. pany and others. tion by Timothy Mullin against Alvin J. Bel-E. W. Tyler, for respondent. No opinion. -n and John A. Seely. No opinion. Order Judgment affirmed, with costs. firmed, with $10 costs and disbursements. MURPHY, Respondent, v. THIRD AVE. R. 9., Appellant. (Supreme Court, Appellate Dision, Second Department. March 22, 1898.) ction by Eliza A. Murphy, as administratrix, c., of Frank Murphy, deceased, against the PAGET et al. v. MELCHER et al. (Supreme Court, Appellate Division, First Department. April 7, 1898.) Action by Mary Paget and others against Ellen S. Melcher and others. No opinion. Motion granted as to both questions. See 47 N. Y. Supp. 244, and 49 N. Y. Supp. 922. |