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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, Appel. lant.- 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, Appellunt. - 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, Appel. lant. — 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 evi. dence to support the verdict. The new trial was properly granted. All concurred, except Krusc, 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.

Fourth Department, March, 1910.

(Vol. 137. an attorney and counselor residing at Rochester, N. Y., to take proofs and report to the court with his opinion.

The People of the State of New York ex rel. Buffalo Gas Company, Appellant, v. The State Board of Tax Commissioners, Respondent.- Motion for leave to appeal to Court of Appeals granted, and questions for review certified.

Herbert Tyner, Respondent, v. Theodore B. Basselin, Appellant. — Judgment and order affirmed, with costs. All concurred.

In the Matter of the Probate of the Last Will and Testament of Harriette C. Armstrong, Deceased. Hortense P. Hartman, Appellant; Frederick W. Armstrong, Respondent.— Decree of Surrogate's Court reversed, upon questions of fact, with costs to appellant to abide event payable out of the estate, and a trial of the following issues of fact directed to be had, as provided by section 2558 of the Code of Civil Procedure, by and before a jury of the Supreme Court, at a Trial Term thereof, to be convened at Geneseo, in and for the county of Livingston, on the 1st Monday in May, 1910, to wit: 1. Was the execution of the alleged will of Harriette C. Armstrong, bearing date January 2, 1902, procured by fraud or deceit practiced upon her? 2. Was the execution of said alleged will procured by undue influence practiced upon her? 3. Was the execution of the codicil to said alleged will procured by fraud or deceit practiced upon said Harriette C. Armstrong? 4. Was the execution of the codicil to said alleged will procured by undue influence practiced upon her? All concurred, except Williams, J., who dissented, and voted for affirmance.

John Hatten, Respondent, v. Hyde-McFarliu Company, Appellant.— Judg. ment and order affirmed, with costs. All concurred, except McLennan, P. J., and Williams, J., who dissented, upon the ground that at the time of the acci. dent the plaintiff was not engaged in the work of the defendant.

William N. D. Bird, Respondent, v. Albert G. Hatch, Appellant.- Judgment affirmed, with costs. All concurred.

Elizabeth S. Williams, Respondent, v. The City of Buffalo, Appellant. - Order affirmed, with costs. All concurred.

Maude Gordon Mullen, Respondent, v. The American Tobacco Company, Appellant. — Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Held, that as matter of law the defendant was not guilty of actionable negligence. All concurred.

Ida May Carter, an Infant, by George E. Carter, Her Guardian ad Litem, Respondent, v. The Village of Brockport, Appellant. — Judgment and order affirmed, with costs. All concurred, except Williams, J., who dissented, upon the ground that the finding of the jury that the plaintiff was free from contributory negligence was contrary to and against the weight of the evidence.

Edward D. Chittenden, Respondent, v. Ellenor Chittenden, Appellant.-Interlocutory judgment affirmed, without costs, with leave to defendant to plead over within twenty days. All concurred.

John A. Squires and Albert E. Staley, Respondents, v. Conners Brothers Construction Company, Appellant. — Judgment affirmed, with costs. All concurred.

John Krazman, as Administrator, etc., of Frank Krazman, Deceased, Appel. App. Div.)

Third Department, March, 1910. lant, v. Buffalo, Rochester and Pittsburg Railway Company, Respondent. — Judgment and order affirmed, with costs. All concurred.

George H. Andrews, Respondent, v. Crosstown Street Railway Company of Buffalo, Appellant. — Judgment and order affirmed, with costs. All concurred. Spring, J., not sitting.

The City of Rochester, Respondent, v. Edward C. Gutberlett, Appellant.Order affirmed, with ten dollars costs and disbursements. All concurred.

Catherine Schopp, Respondent, v. George Moon, Jr., Appellant. — Order affirmed, with ten dollars costs and disbursements. All concurred.

Schuyler Grant, Appellant, v. George V. Fowler and George V. Fowler Realty Company, Respondents.— Order affirmed, with ten dollars costs and disbursements. All concurred.

The People of the State of New York ex rel. Lehigh Valley Railroad Company, Appellant, v. The State Board of Tax Commissioners, Respondent. — Motion for leave to appeal to Court of Appeals granted, and question for review certified.

Louise C. Knorr, as Administratrix, etc., Appellant, V. William Simon, Respondent. - Motion for reargument denied, with ten dollars costs. Motion for leave to appeal to Court of Appeals denied.

Nicola Daniele, Appellant, v. Domenico Bellissimo, Respondent. Margaret Stevens, Appellant, v. J. N. Adam & Company, Respondent. United Vaudeville Company, Respondent, v. Henry C. Zeller and Others, Individually and as Police Commissioners of the City of Buffalo, Appellants. Lee Jackson, Respondent, v. Edward A. Perkins, Appellant. Buffalo Savings Bank, Appellant, v. George Hunt and Others, Respondents.— The foregoing cases having been twice reached in their regular order and passed, are dismissed, with costs, under General Rule No. 39.

The City of Rochester, Respondent, v. Jacob Kern, Appellant. - Order affirmed, with ten dollars costs and disbursements. All concurred.

Third DEPARTMENT, March, 1910. Milton C. Armstrong, Respondent, v. Clement T. Batsford, Appellant. — Judg. ment unanimously affirmed, with costs.

George D. Bartlett, Respondent, v. Henry W. Bean and Others, Appellants.Judgment and order unanimously affirmed, with costs.

Lida A. Hall, as Administratrix, etc., of Bert J. Hall, Deceased, Appellant, v. The Cayuga Lake Cement Company, Respondent. — Judgment and order affirmed, with costs. All concurred, except Kellogg, J., dissenting.

Henry W. Hamell, Appellant, v. Frank P. De Vinne, Respondent.— Judgment affirmed, with costs. All concurred, except Smith, P. J., and Cochrane, J., dissenting.

William H. Hallock, Appellant, v. The East Branch Lumber Company, Respondent. — Judgment unanimously affirmed, with costs. Sewell, J., not sitting

Third Department, March, 1910.

(Vol. 137. Clarence Hammond, Respondent, v. Union Bag and Paper Company, Appel. lant. - Motion denied.

George Kennedy, Appellant, v. Joseph Royal Kennedy, Respondent. — Judg. ment unanimously affirmed, with costs.

Charles H. Kavanaugh, Who Sues on Behalf of Himself and All Others, Stockholders of the Commonwealth Trust Company of New York, v. The Commonwealth Trust Company of New York and Others.- Amount of undertaking fixed at $100,000 for each defendant desiring a stay.

Ella Luffman, as Administratrix, etc., of William Luffman, Deceaserl, Respondent, v. Hudson River Telephone Company, Appellant.- Order unanimously affirmed, with costs.

In the Matter of the Application of the Heine Safety Boiler Company, Appellant, for a Writ of Mandamus Requiring the Franklin Boiler Works Company, Respondent, to Allow an Inspection of Its Books.- Order reversed, with costs, and application granted unless the respondent within thirty days after service of a copy of this order shall make and deliver to relator a statement of its affairs, under oath, embracing a particular account of all its assets and liabilities, in which case the order is affirmed, without costs. All concurred, except Kellogg, J., who voted for affirmance.

Daniel J. Murphy, Respondent, v. The Prudential Insurance Company of America, Appellant. - Motion denied.

Michael O'Connor, Respondent, v. The County of Fulton and The Town of Johnstown, Appellants. — Judgment so far as it awards damages reversed on law and facts; in all other respects affirmed, without prejudice to the plaintiff's right to take such proper proceeding as he may be advised to recover any damages to wbich he may be entitled, with costs to the respondent. All concurred.

Othniel Phelps, as Administrator, etc., of Mary Jane Phelps, Deccased, Respondent, v. The Erie Railroad Company, Appellant. - Motion denied.

The People of the State of New York ex rel. Consolidated Gas Company of New York, Relator, v. Charles H. Gaus, as Comptroller of the State of New York, Respondent. — Determination of the Comptroller unanimously confirmed, with fifty dollars costs and disbursements.

The People of the State of New York ex rel. The Astoria Light, Heat and Power Company, Relator, v. Charles H. Gaus, as Comptroller of the State of New York, Respondent. - Determination of the Comptroller unanimously confirmed, with disbursements.

The People of the State of New York ex rel. Westchester Lighting Company, Relator, v. Charles H. Gaus, as Comptroller of the State of New York, Respondent. – Determination of the Comptroller unanimously confirmed, with disbursements.

Ancel Peterson, Respondent, v. Jolin Holcomb, Appellant.— Judgment and order unanimously affirmed, with costs.

Cora A. Prince, as Ancillary Administratrix, etc., of William 0. Prince, Deceased, Respondent, v. Central New England Railway Company, Appellant. - Order affirmed, with ten dollars costs and disbursements. All concurred.

Joseph E. Packard, Appellant, v. Jane Guild Packard, Respondent.- Order affirmed with ten dollars costs and disbursements. All concurred.

App. Div.]

Third Department, March, 1910. Arthur W. Perry, Appellant, v. Jane Ord way, Respondent. — Judgment unanimously affirmed, with costs.

The People of the State of New York ex rel. John Dunphy and Others, Appellants, v. Abram H. Wiggins, as Supervisor of the Town of Canton, Respondent. - Motion denied. Kellogg, J., not voting.

May E. Rook, Respondent, v. Louis E. Rook, Appellant. (No. 1.)—— Motion denied upon authority of Porter v. International Bridge Co. (163 N. Y. 79).

May E. Rook, Respondent, v. Louis E. Rook, Appellant. (No. 2.)— Motion denied upon authority of Porter v. International Bridge Co. (163 N. Y. 79).

Jennie E. Smith, Respondent, v. The Ulster and Delaware Railroad Company, Appellant. — Judgment and order reversed and new trial granted, with costs to appellant to abide event, unless the plaintiff stipulates to reduce the amount of her verdict to the sum of $2,000, and if such stipulation is filed, judgment and order affirmed, without costs. All concurred, except Kellogg, J., who voted for reversal.

Earl V. Servoss, Respondent, v. City of Amsterdam, Appellant. — Judgment affirmed, with costs. All concurred.

Ada E. Sweet, Appellant, v. The Village of Sidney, Respondent. — Motion denied.

Lizzie Turnbull and Spencer Billington, as Administrators, etc., of Peter Turnbull, Deceased, Respondents, v. George H. Turnbull, Appellant. — Judgment and order unanimously aflirmed, with costs.

United States Trust Company of New York, as Trustee, etc., of the Will of John J. Van Nostrand, Deceased, Respondent, v. Louisa B. Van Nostrand, Indi. vidually and as Trustee, etc., of the Will of John J. Van Nostrand, Deceased, and as Executrix, etc., of John H. Van Nostrand, the Younger, Deceased, Respondent, Impleaded with Fanny Van Nestrand Ramsdell, Individually, as Executrix, etc., of John J. Van Nostrand, Deceased, as Trustee, etc., of Said Will, and as Executrix, etc., of Sarah M. Marvin, Deceased, and Others, Appellants, and James A. P. Ramsdell, Defendant. — Judgment unanimously affirmed, with costs.

Susie L. Van Alstine and Diar Baker, as Administrators, etc., of Orson A. Van Alstine, Deceased, Respondents, v. Standard Light, Heat and Power Company of Unadilla, New York, Appellant. — Judgment and order unanimously affirmed, with costs.

Charles A. Worden, Respondent, v. Louis Dufresne, Appellant. — Judgment and order unanimously affirmed, with costs.

John Barkley v. Frederick W. Herbert.— Motion granted, with ten dollars costs, unless appellant within ten days from the service of a copy of this order and notice of entry thereof, pays to the respondent the costs of this motion, upon the payment of which the motion is denied and the appellant has leave to apply to the Special Term for such relief as he may be advised, without prejudice to the pending application.

The City of Troy, Appellant, v. United Traction Company, Respondent.Judgment unanimously affirmed, with costs. Mabel Cole, Respondent, v. John Tozer, Appellant. - Motion denied.

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