App. Div.] Fourth Department, March, 1910. Meyer Lambert v. Isaac M. Hays and Others.- Motion granted and question certified as stated in order. Jesse L. Boskowitz, as Administrator, v. Joseph H. Sulzbacher.— Motion granted. In the Matter of William E. Deane, an Attorney.- Respondent disbarred. Settle order on notice. In the Matter of Henry A. Robinson, an Attorney.- Reference ordered. Settle order on notice. In the Matter of Myer Prinstein, an Attorney.- Reference ordered. Settle order on notice. FOURTH DEPARTMENT, MARCH, 1910. Julia Reinhardt, Respondent, v. International Railway Company and the City of Buffalo, Appellants.-Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., who dissented on the ground that the court committed reversible error in charging that "there can be no verdict in this case against the city alone and not against the railroad company." Joseph Oman, Respondent, v. Phoenix Bridge Company, Appellant.- Judg. ment and order reversed and new trial ordered, with costs to appellant to abide event. Held, that the verdict is contrary to and against the weight of the evidence, both as to defendant's negligence and plaintiff's freedom from contribu tory negligence. All concurred, except McLennan, P. J., and Kruse, J., who dissented. James Lennon, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.-Judgment and order affirmed, with costs. All concurred, except Spring and Williams, JJ., who dissented. Flora Carson, Respondent, v. The Village of Dresden, Appellant.— Judgment and order affirmed, with costs. All concurred, except Williams and Robson, JJ., who dissented upon the ground that the allowance by the trial court on the cross-examination of the witness Dalazon of the questions to which objection was made and exception taken, was prejudicial error. John W. Ford, Suing in His Own Behalf and in Behalf of All Other Creditors of the Rochester Mexican Plantation Company, Respondent, v. Benjamin E. Chase and Others, Appellants, Impleaded with Augustus S. Pendry, Appellant, Respondent, and Frank A. Underwood and Others, Defendants.- Interlocutory judgment affirmed, with costs. All concurred, except McLennan, P. J., who dissented upon the ground that the indebtedness in question was contracted prior to the time when the defendants became stockholders of the corporation, within the meaning of section 56 of the Stock Corporation Law.* Mae F. Menzer, as Administratrix, etc., of Joseph P. Menzer, Deceased, Respondent, v. The Niagara Gorge Railroad Company, Appellant, Impleaded * See Gen. Laws, chap. 36 (Laws of 1892, chap. 688), § 54, as amd. by Laws of 1901, chap. 354; revised into Consol. Laws, chap. 59 (Laws of 1909, chap. 61), § 56.-- [REP. Fourth Department, March, 1910. [Vol. 137. with International Railway Company.- Judgment and order affirmed, with costs. All concurred. Harlow C. Curtiss, Respondent, v. William T. Jebb, Appellant.— Judgment and order affirmed, with costs. All concurred. Alfred Brickle, Respondent, v. Herbert H. Schaeffer, Appellant.— Order affirmed, with ten dollars costs and disbursements. All concurred, except Williams, J., who dissented. Margaret Devine, Appellant, v. Ellen Collins, Respondent.- Judgment affirmed, with all costs. All concurred. Frances E. Schenck, Appellant, v. Eugene H. Schenck, Respondent.- Judgment reversed and new trial ordered, with costs to appellant to abide event. Held, that the plaintiff proved facts sufficient to establish a cause of action. All concurred, except McLennan, P. J., and Robson, J., who dissented. The People of the State of New York ex rel. Frank Blood, Appellant, v. J. George Haffa, as Keeper of Erie County Penitentiary, Respondent.— Order affirmed. All concurred. Harrietta Hurd, Respondent, v. International Railway Company, Appellant.— Judgment and order affirmed, with costs. All concurred. William J. Scott, Appellant, v. International Paper Company, Respondent.— Judgment and order affirmed, with costs. All concurred, except Kruse, J., who dissented; Williams, J., not sitting. Nicholas J. Brown and Edward H. R. Martin, Respondents, v. William Horan, Appellant, Impleaded with John J. L. Walter, Respondent.-Judgment affirmed, with costs. All concurred. James H. Harrington, Respondent, v. John Welch and Carrie Griffin, Appellants. Interlocutory judgment, so far as appealed from, reversed, with costs of the appeal, and judgment modified by striking out that part which makes the costs allowed the defendants abide the event of the action, and by providing that costs of the defendants be taxed by the clerk of the county of Chautauqua. concurred. All Stephen B. Keleher, Respondent, v. International Railway Company, Appellant.- Judgment and order affirmed, with costs. All concurred; Spring, J., not sitting. Henry F. Fullerton, Respondent, v. Auto Car Equipment Company, Appellant.— Motion for leave to appeal to Court of Appeals denied, with ten dollars costs. Nicola Rullo, an Infant, etc., Respondent, v. Lane-Hennessey Contracting Company, Appellant.- Motion for reargument denied, with ten dollars costs. Motion for leave to appeal to Court of Appeals denied. William B. Mersereau, Respondent, v. L. K. Hirsch Company, Appellant.Motion for reargument denied, with ten dollars costs. Charles D. Rood, Appellant, v. Bank of Cattaraugus, Respondent.— Appeal dismissed, unless within twenty days the appellant procure the case and exceptions to be filed and pay to respondent's attorney ten dollars costs of this motion. Memorandum by Williams, J.* All concurred; Spring, J., not sitting. *Not furnished reporter.-[REP. App. Div.] Fourth Department, March, 1910. Benjamin F. Prichard, Respondent, v. Security Mutual Life Insurance Company, Appellant.- Appeal dismissed, unless within twenty days appellant file and serve the printed papers on appeal and pay to plaintiff's attorney ten dollars costs of the motion, and stipulate that the case be ready for argument on the first Wednesday of the May term. William E. Pease, Respondent, v. Pennsylvania Railroad Company, Appellant. Judgment affirmed, with costs. All concurred, except Robson, J., who dissented upon the ground that the motion for a new trial upon the ground of newly-discovered evidence should be granted. (See opinion by Williams, J., on decision of appeal from order denying motion for new trial upon ground of newlydiscovered evidence in same case, decided at this term of court, ante, p. 458.) Skaneateles Paper Company, Plaintiff, v. The National Fire Insurance Company of Onondaga County, Respondent. In the Matter of the Claim of John F. O'Brien, Appellant.-Order affirmed, with ten dollars costs and disbursements. All concurred. In the Matter of the Application of the City of Buffalo, Respondent, to Acquire Lands in Fee Simple for the Purpose of Opening and Extending Morgan Street, etc. Esther E. Ellwood and Grant H. Thompson, Landowners, Appellants.Order affirmed, with ten dollars costs and disbursements. All concurred. The People of the State of New York ex rel. Lehigh Valley Railway Company, Appellant, v. The State Board of Tax Commissioners, Respondent. (Tax of 1909.) Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, upon the authority of the decision rendered at this term of court in People ex rel. Buffalo Gas Co. v. Board of Tax Commissioners (ante, p. 358). All concurred, except Spring and Kruse, JJ., who dissented upon the grounds stated in the dissenting opinion by Spring, J., in that case (ante, p. 363). Richard W. Sherman, Respondcat, v. Harry M. Levengston, Appellant.Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Memorandum by Williams, J.* All concurred. Charles A. Wheeler, as Administrator, etc., of William S. Wheeler, Deceased, Appellant, v. Cuyler E. Carr, as Executor, etc., of Laura F. Beardsley, Deceased, Respondent. Order affirmed, with ten dollars costs and disbursements, on the ground that the court properly exercised its discretion. All concurred, except Spring and Williams, JJ., who dissented upon the ground that the motion was granted on the sole ground that the plaintiff was a non-resident of the State, and not as matter of discretion In the Matter of the Application of the City of Buffalo, Respondent, to Acquire Lands in Fee Simple for the Purpose of Opening and Extending Morgan Street, etc. Mary E. Adams, Landowner, Appellant.— Order affirmed, with ten dollars costs and disbursements. All concurred. Wire and Telephone Company of America, Respondent, v. Waterbury Company, Appellant.— Judgment and order affirmed, with costs. All concurred, except Spring, J., who dissented. *Not furnished reporter.- [REP. APP. DIV.-VOL. CXXXVII. 59 Fourth Department, March, 1910. [Vol. 137. Girolamo Oliviere, Respondent, v. Joseph Nicotera, Appellant.- Judgment and order affirmed, with costs. All concurred. David S. Wright, Respondent, v. Herman J. Westwood, as Trustee, etc., of the Gleason Grape Juice Company, Bankrupt, Impleaded with the Gleason Grape Juice Company, and Others, Appellants.- Judgment affirmed, with costs. All concurred. Thaddeus W. Collins, as Administrator with the Will Annexed, etc., of George C. Strang, Deceased, Appellant, v. Harry F. Zimmerlin and Charles G. Zimmerlin, Respondents.― Judgment affirmed, with costs. All concurred. In the Matter of the Application of William H. Hotchkiss, as State Superintendent of Insurance, etc., to Take Possession of the Property, etc., of the People's Mutual Life Insurance Association and League, etc. In the Matter of the Application of William H. Hotchkiss, as State Superintendent of Insurance, etc., to Liquidate the Business of the People's Mutual Life Insurance Associa tion and League, etc. It appearing that the justices qualified to sit in these appeals are equally divided and unable to render a decision herein, said appeals are ordered transferred to the Appellate Division in and for the Third Judicial Department, to be there heard and determined pursuant to section 231 of the Code of Civil Procedure. Spring, J., not sitting. Mary C. Hawkes, Respondent, v. Charles F. Warren and Others, Appellants.— Motion to dismiss appeal denied, without costs, with leave to renew in case defendants fail to perfect their appeal, as provided by rule 41,* and be ready to argue same at opening of May, 1910, term. Elizabeth Lehde and John Lehde, Respondents, v. Louisa Boerger, Individually and as Administratrix with the Will Annexed of Henry Lehde, Deceased, Appellant. Judgment and order affirmed, with costs and disbursements to respondent payable out of the estate. All concurred. Mary Munch, Respondent, v. Metropolitan Life Insurance Company, Appellant. Judgment and order affirmed, with costs. All concurred. Meyer Serling, Respondent, v. Harry Serling and Charles Serling, Appellants. -Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., who dissented, upon the ground that Israel Serling was not a superintendent nor exercising acts of superintendence at the time of the accident. Albert Casady, Respondent, v. Pennsylvania Railroad Company, Appellant.Judgment affirmed, with costs. All concurred. James R. Tyler, Respondent, v. Elias F. Pulver, Appellant.- Judgment and order affirmed, with costs. All concurred, except Kruse, J., who dissented, upon the ground that the evidence relating to the bond and mortgage was improperly stricken out, and that the case should have been submitted to the jury. Oliver Watson, as Receiver of the Fulton Telephone Company, Appellant, v. Victoria Paper Mills Company, Respondent.- Judgment affirmed, with costs. All concurred. Frank M. Calkins, Respondent, v. Mattie R. Calkins, as Executrix, etc., of Rufus P. Calkins, Deceased, Appellant.-Judgment and orders affirmed, with costs. All concurred. *Gen. Rules Pr. rule 41.-- [REP. App. Div.] Fourth Department, March, 1910. Newton S. Oppenheimer, an Infant, by Harry Oppenheimer, His Guardian ad Litem, Respondent, v. Crosstown Street Railway Company of Buffalo, Appellant.- Order affirmed, with costs. All concurred. Catherine L. Wurtz and George P. Wurtz, Appellants, v. Augustus P. Kehr and William J. Felton, Respondents.- Judgment affirmed, with costs. All concurred. William H. Meyer, Appellant, v. International Railway Company, Respondent. Order affirmed, with costs. Held, that the evidence fails to establish plaintiff's freedom from contributory negligence. All concurred. Regina Roth, Respondent, v. Crosstown Street Railway Company of Buffalo, Appellant. Judgment and order affirmed, with costs. All concurred. Nelson T. Barrett, as Receiver, etc., of William H. Byers, Appellant, v. William G. Mack and William H. Byers, Respondents. - Judgment affirmed, with costs. All concurred. Charles F. Martin, Respondent, v. Pennsylvania Railroad Company, Appellant. Judgment affirmed, with costs. All concurred. Nelson Bodette, Appellant, v. The Foster-Armstrong Company, Respondent. - Order affirmed, with costs. Held, while the court was required by the Employers' Liability Act* to submit the question of assumed risk to the jury, yet under that act it had power to set aside the verdict when rendered if contrary to the evidence. It was not necessary to hold there was absolutely no evidence to support the verdict. The new trial was properly granted. All concurred, except Kruse, J., who dissented upon the ground that under the rule of the Employers' Liability Act the jury was warranted in finding that the defense of assumed risk was not made out, and the verdict upon that question is not contrary to the evidence. Rosina Pringle, Appellant, v. George Dean and Others, Respondents.― Judg. ment affirmed, with costs. All concurred. Julia A. Sweeting, Appellant, v. Iroquois China Company, Respondent.Judgment and order affirmed, with costs. See same case on former appeal reported at 129 Appellate Division, 777. All concurred, except Kruse, J., who dissented. Emma Macomber, Respondent, v. William M. Norton, as Executor, etc., of Marcus Van Buskirk, Deceased, Appellant.— Judgment and order affirmed, with costs. All concurred. John Doody, Appellant, v. Michael Dundon, Respondent.— Judgment affirmed, with costs. All concurred. Vincenzo Melito, Respondent, v. Alfred J. Brown, Appellant.- Judgment and order affirmed, with costs. All concurred. Morgan Shaut, Respondent, v. Harriet Handrahan, Appellant, Impleaded with George Williams and Others.—Judgment affirmed, with costs. All concurred. In the Matter of Eugene W. Harrington, an Attorney and Counselor at Law.— Issues raised by the charges and answer thereto referred to Hon. Edwin A. Nash, * Laws of 1902, chap. 600; revised into Labor Law (Consol. Laws, chap. 31; Laws of 1909, chap. 36), art. 14.-- [REP. |