Second Department, November, 1920.

[Vol. 194. must be a reasonable apprehension of personal violence arising from menaces or threats, creating a reasonable fear of bodily harm, and that mere asperity of temper, rudeness of manners, harshness of language and even occasional outbursts of passions, if they do not threaten bodily harm, do not amount to legal cruelty. Before bringing actions of this character, I would suggest to the members of the bar that they read and study the very learned opinion of Mr. Justice Jenks in Donohue v. Donohue (180 App. Div. 561), and also the opinion of Mr. Justice Blackmar in Umbach v. Umbach (183 id. 495). The language used in the latter part of the tenth folio of the plaintiff's complaint does not allege facts, but conclusions, and has no place in the complaint and should not have been allowed to remain. Labeling a defendant as he was labeled in the complaint was unwarranted, and it is unfortunate that such language was used. Charging a defendant in a complaint with being a man of a certain type does not make it so; it must be established by proof. It is for the court to make findings, and in this case there was no proof to warrant such findings or conclusion. The complaint should be dismissed upon the merits, without costs.

CARPENTERS' UNION, an Unincorporated Association, SAMUEL KARNOVSKY and Others, Respondents, v. BROWNSVILLE LABOR LYCEUM ASSOCIATION, Appellant. Motion for stay granted on condition that appellant perfect the appeal and be ready for argument on Friday, November 12, 1920, for which date the appeal is specially set down. Present Jenks, P. J., Rich, Putnam, Blackmar and Kelly, JJ.

CORNELIUS CASSIN, Appellant, v. STILLMAN, DELEHANTY, FERRIS COMPANY, Respondent.― Motion to resettle order granted. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ.

JOSEPH F. COFFEY, as Administrator, etc., of MICHAEL J. COFFEY, Deceased, Respondent, v. PATRICK H. ROCHE, Appellant.- Motion granted, without costs. Present - Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ.

BIRD S. COLER, as Commissioner of Public Charities of the City of New York, Respondent, v. ALBERT NELSON, Appellant.- Motion denied on condition that appellant perfect the appeal, place the cause on the December calendar and be ready for argument when reached; otherwise, motion granted, without costs. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

CLARA ALICE CROUCH, Appellant, v. IKE GEORGE CROUCH, Respondent.— Motion for leave to appeal to the Court of Appeals granted. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ. Settle order before Mr. Justice Blackmar.

SAMUEL A. DUNN, Appellant, v. JAMES J. BROWNE, Respondent.— Motion for reargument granted, and case set down for Tuesday, December 7, 1920. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ.

ANNIE EPSTEIN, Respondent, v. REBECCA WERBELOVSKY, etc., and Others, Defendants, and ABRAHAM Werbelovsky and Others, Appellants.—

App. Div.]

Second Department, November, 1920.

Motion to resettle order granted so as to award costs of the appeal and the action, and $2,000 additional allowance to the guardian ad litem, and otherwise denied. Present Jenks, P. J., Mills, Putnam, Blackmar and

Kelly, JJ.

-

In the Matter of the Application of COLLEY W. BELL for Admission to the Bar. (From Washington, D. C:) - Application granted. Present Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ.

In the Matter of the Application of HENRY BLEISTIFT for an Order Consenting to the Removal of the Body of ABRAHAM BLEISTIFT from Mount Judah Cemetery. Motion denied, without costs. Present - Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ.

In the Matter of the Application of ROBERT C. BRENNEMAN for Admission to the Bar. (From the State of Indiana.)—Application granted. Jenks, P. J., Rich, Putnam, Blackmar and Kelly, JJ.

Present

In the Matter of the Application of JOHN P. FINN for Admission to the Bar. (From the State of Massachusetts.) - Application granted. Present Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ.

In the Matter of the Application of JOSEPH KOLETSKY for Admission to the Bar. (From the State of Connecticut.) - Application granted. Present Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ.

In the Matter of the Application of GUSTAVE R. THOMPSON for Admission to the Bar. (From Washington, D. C.) — Application granted. Present Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ.

In the Matter of the Application of WILLIAM MANNING SMITH, for Admission to the Bar. (From the State of Georgia.) - Application granted. Present - Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ. In the Matter of the Estate of JERONEMUS S. UNDERHILL, Deceased.—Motion for reargument denied, without costs. Motion for leave to appeal to the Court of Appeals denied. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ.

In the Matter of the Application of DANN L. WOOD for Admission to the Bar. (From Washington, D. C.) — Application granted. PresentJenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ.

MARY E. MADDEN, Appellant, v. BESSIE MORRIS, Respondent.- Motion denied on condition that within ten days appellant pay ten dollars costs to the respondent, and file and serve points, and argue the cause at the December term; otherwise, motion granted. Present Mills, Putnam, Blackmar and Kelly, JJ.

A

Jenks, P. J.,

GEORGE S. MAWHINNEY, Respondent, v. MEYER FREUND, Appellant.Motion granted, without costs. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ.

-

DONALD MCKELLAR, Respondent, v. AMERICAN SyntheTIC DYES, INC., Appellant. Motion for reargument denied. Motion to resettle order granted. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ. Settle order before the presiding justice.

ROSE M. PALMER and LILLIAN PALMER, Respondents, v. ROTARY REALTY COMPANY, INC., and Others, Appellants. Motion denied, with ten dollars

Second Department, November, 1920.

[Vol. 194.

costs. Plaintiffs' proper remedy is by motion at Special Term. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN W. FLANAGAN, Appellant.- Motion denied on condition that appellant perfect the appeal, place the cause on the December calendar and be ready for argument when reached; otherwise, motion granted. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. MICHAEL IMBRIALE, Relator, v. RICHARD E. ENRIGHT, as Police Commissioner of the City of New York, Respondent.- Motions denied, without costs. PresentJenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE LONG ISLAND RAILROAD COMPANY, Respondent, v. STATE Board of TaX COMMISSIONERS, Appellant. THE CITY OF NEW YORK, Intervenor, Appellant. (1912 Proceeding.) — Motion for leave to appeal to the Court of Appeals granted. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE LONG ISLAND RAILROAD COMPANY, Respondent, v. STATE Board of TAX COMMISSIONERS, Appellant. THE CITY OF NEW YORK, Intervenor, Appellant. (1917 Proceeding.) - Motion for leave to appeal to the Court of Appeals granted. Present - Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. T. LANGLAND THOMPSON, Relator, v. THE ELECTRIC WELDING COMPANY OF AMERICA and Others, Defendants.- Motion granted. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ.

ESTHER SAXE, Respondent, v. SARAH PEKARSKY, Defendant, and MAX PEKARSKY, Appellant.- Motion to dismiss appeal granted, with ten dollars costs. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

WILLIAM E. SILESTEN, Respondent, v. REGINA CANDIES, INC., Defendant. ORIENT MERCHANDISE COMPANY, LTD., Appellant.- Motion for leave to appeal to the Court of Appeals denied. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

TOWN OF NORTH HEMPSTEAD, Appellant, v. PUBLIC SERVICE CORPORATION OF LONG ISLAND, Respondent.- Motion for leave to appeal to the Court of Appeals granted. Present Jenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

TOWN OF NORTH HEMPSTEAD, Appellant, v. PUBLIC SERVICE CORPORATION OF LONG ISLAND, Respondent.- Motion to resettle order granted. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. Settle proposed order on notice.

ISIDORE BERNSTEIN, Doing Business under the Name and Style of BERNSTEIN KNITTING MILLS, Respondent, v. NATIONAL SURETY COMPANY OF NEW YORK, Appellant.- Order affirmed, without costs. The order was entirely proper in the interest of justice, and was a proper exercise of discretion by the learned judge at Special Term, who also presided at the trial. The plaintiff does not attempt to plead a new cause of action, and the short limitation on the time of beginning action on the policy bars a

App. Div.]

Second Department, November, 1920.

new action. The application was made promptly, and the court was justified in vacating the nonsuit and allowing the amendment upon terms. (New York Ice Co. v. North Western Ins. Co., 23 N. Y. 357; Thompson v. Kessel, 30 id. 383; Jaggar v. Cunningham, 8 Daly, 511.) We do not pass upon the sufficiency of the amended complaint except to say that the pleader does not appear to have followed the language of the policy very closely in describing the loss. The attempt to amend the summons appears to be unauthorized and unwarranted. Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ., concur.

ANDREW J. CONSTANTINE, Respondent, v. CHARLES F. MINER, Appellant. Judgment and order reversed and new trial granted, with costs to abide the event, upon the grounds that the trial justice erred in denying defendant's motions to strike out at folios 64 and 68, and also, although without objection of defendant's counsel, in submitting to the jury the failure to give notice to plaintiff that the log was about to be moved, as a possible item or alternative of defendant's negligence. Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ., concur.

REGINA CRESCENT, Appellant, v. BRIDGET REDDY (née WHALEN) and Others, Respondents.- Order of the County Court of Westchester county affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ., concur.

In the Matter of the Application of the COMMISSIONERS OF THE PALISADES INTERSTATE PARK, Respondents, for the Condemnation of Certain Lands Situated in the Counties of Rockland and Orange, State of New York. IDA L. FRESE, Appellant. (Proceeding No. 5.) Order affirmed, with ten dollars costs and disbursements. Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ., concur.

No opinion.

WILLIAM H. KINNEARY, Respondent, v. IRENE E. PARRETT and Others, Defendants, Impleaded with Clinton Trading Corporation, Appellant.— Judgment unanimously affirmed, with costs. No opinion. Present Mills, Rich, Putnam, Blackmar and Kelly, JJ.

CHARLES F. LAWLER, Plaintiff, v. THE SHEFFIELD CONSTRUCTION COMPANY, Respondent, and Others, Defendants. WILLIAM J. DILTHEY, Appellant; SOUND HOLDING COMPANY, Purchaser, Respondent. Order of the County Court of Kings county reversed, with ten dollars costs and disbursements, to be paid by the Sheffield Construction Company and the Sound Holding Company to the appellant, and motion to vacate the order of discontinuance, entered March 31, 1920, granted, with ten dollars costs against the same parties, and the notice of pendency of action restored, unless the respondents pay to the appellant the said costs of the appeal and motion, and the sum of $183.80 (the expenses of the reference), and a counsel fee of $350. If such payment be made within ten days, the order is affirmed, without costs. When the case was last before this court we held that the appellant could maintain the appeal and that the case should not be discontinued without compensating him for the expenses of the reference and a counsel fee of $250. (See 187 App. Div. 939.] The respondents did not accept the conditions of discontinuance, and the reference continued. The referee's report,

Second Department, November, 1920.

[Vol. 194. confirmed by the court, upheld the appellant's contention regarding the two mortgages inserted to his injury in the terms of sale, and provided for a payment to him, out of the avails of the sale, of $183.80, the expenses of the reference. Notwithstanding the decision, the respondents have again obtained an order of discontinuance without notice to appellant, upon condition that the expenses of the reference, not including counsel fee, be paid to appellant, and the order appealed from denies appellant's motion to vacate. Our prior decision was that the case should not be discontinued without paying to appellant a counsel fee as well as the expenses of the reference, and the reasons which prompted the decision are not impaired by the fact that the appellant has carried the reference to a successful conclusion. Jenks, P. J., Mills, Blackmar and Kelly, JJ., concur; Jaycox, J., not voting. SALLY LINFANTE, Appellant, v. ROBERT W. LINFANTE, Respondent.Judgment affirmed, without costs. No opinion. Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ., concur.

HARRIET J. McCoUN, Appellant, v. AMY K. PIERPONT and NELLIE CRANZ, Respondents. We agree in the conclusions that these tax sales did not give a good title. Such vacant lots were not sufficiently described on the assessment roll. There was also a lack of definiteness in advertising the lots for sale. In such notice these lot numbers are found in the fifth column. These block and lot numbers are supposed to refer to the Leavitt map in the second column. Such a wide separation would readily mislead. Also by reason of village boundaries the block numbers do not follow an ascending numerical series which would also perplex a reader. The judgment dismissing the complaint and canceling the tax deeds is, therefore, unanimously affirmed, with costs. Present Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ.

FRANK J. MCGOWAN, Respondent, v. P. BALLANTINE & SONS, Appellant.— Judgment and order affirmed, with costs. No opinion. Mills, Rich, Putnam and Kelly, JJ., concur; Jenks, P. J., dissents on the ground that the verdict is against the weight of the evidence, and votes for a new trial. DAVID MEYER, Respondent, v. CHARLES HARTMANN, Appellant.— Judgment and order unanimously affirmed, with costs. No opinion. PresentJenks, P. J., Mills, Rich, Putnam and Blackmar, JJ.

CIRO OLIVARES, Respondent, v. GAETANO BOTTARO, Appellant.— Order modified by providing that the action be placed upon the calendar of the Supreme Court for the December term of 1920, and as so modified affirmed, without costs. No opinion. Jenks, P. J., Mills, Rich, Putnam and Kelly, JJ., concur.

WILLIAM H. POWERS, Respondent, v. THE CITY OF NEW YORK and Others, Appellants.- Judgment reversed and new trial granted, with costs to appellant. The errors necessitating the reversal of the judgment on the former appeal (Powers v. City of New York, 187 App. Div. 896) were repeated upon the second trial. The decision of this court was the law of the case on the second trial. We consider the award of rental and fee damage to the plaintiff excessive, especially in view of awards made in cases of similar property similarly located, one parcel being on the next