Morris Brodsky against the Metropolitan Street Railway Company. H. A. Robinson (G. Glenn Worden, of counsel), for appellant. Isidor Cohn, for respondent.

PER CURIAM. Although the evidence might well lead to a different conclusion from that reached by the learned justice in the court below, it was, nevertheless, conflicting, and there is not a preponderance in defendant's favor sufficiently strong to warrant this court in disturbing the verdict. Judgment affirmed, with costs.

BRUEN v. CULLEN et al. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by Edwin C. Bruen against Cullen Bros. and others. No opinion. Motion granted, with $10 costs.

BUESING, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (City Court of New York, General Term. May, 1901.) Action by Gustav Buesing, by Hugo H. Weichelt, his guardian ad litem, against the Metropolitan Street Railway Company. Henry A. Robinson (John T. Little and Ambrose F. McCabe, of counsel), for appellant. Max D. Steuer (Abraham Oberstein, of counsel), for respondent.

CONLAN, J. The action was brought to recover for injury alleged as a consequence of the defendant's negligence, and the one question submitted by the defendant on this appeal is that the verdict is grossly against the weight of evidence. The amount demanded was $1,500, and the verdict just half that sum. No advantage accrues to the defendant by reason of his exception to the ruling on the motion for a dismissal of the complaint at the close of the plaintiff's case. He accepted the alternative offered him, gave evidence in his own behalf, and thereby waived the motion. Reade v. Trust Co., 49 App. Div. 400, 63 N. Y. Supp. 395; Hopkins v. Clark, 158 N. Y. 299, 53 N. Ê. 27. By introducing the evidence, the defendant created a sharp conflict, upon which the whole case was fairly submitted to the jury. We do not find in the record before us the preponderance of evidence in favor of the defendant which it so boldly asserts in its brief. The jury were at liberty to consider and determine what weight was to be given to all of the evidence, and for reasons which appear to have been sufficient to them a different value was placed upon the testimony of the defendant from what the counsel claims for it. If, for reasons satisfactory to them, they discredited any portion of the evidence advanced by the defendant, it was clearly their province to do so, and courts on appeal are very reluctant to disturb the finding of a jury, where the evidence has been of a sharp, conflicting character. The theories of the plaintiff and defendant as to how the accident occurred were widely different, and we are not disposed to differ from the jury with the conclusion arrived at. The other exceptions taken by the defendant do not affect, in our opinion, the single question before us on this appeal, and the judgment and order appealed from must therefore be affirmed. Judgment and order affirmed.

O'DWYER, J., concurs.

BURNHAM, Respondent, . RAYMOND, Appellant. (Supreme Court, Appellate Divisi Fourth Department. October 8, 1901.) In the matter of the application for a writ of assist ance by Hiram Burnham against Elizabeth Raymond. No opinion.

BURTSELL, Respondent, v. TUPPER, Ap pellant. (Supreme Court, Appellate Ter June, 1901.) Action by John M. Burtsell against Jonas C. H. Tupper. G. Finck, for appellant M. J. Joyce, for respondent.

PER CURIAM. Irrespective of the allezei demerits in the answer, the defendant's motion to dismiss the complaint because of failure to state facts sufficient to constitute a cause of action should have been granted. That plead ing is defective from the omission to allege the fact of the nonpayment of the face amount of the capital stock issued at the time the debt to the plaintiff was incurred, and also the number of shares held by the defendant. The plaintif is in any event bound to present to the court a cause of action, when his having done so is properly questioned. Judgment reversel, and new tria. ordered, with costs to abide event.

BUSH v. O'BRIEN et al. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by Irving T. Bush against John O'Brien and others. No opinion. Motion denied.

BUSHNELL, Respondent, v. BROOKLYN UNION EL. R. CO. et al., Appellants. (Stpreme Court, Appellate Division. Second Department. October 4, 1901.) Action by Adelaide E. Bushnell against the Brooklyn Union Elevated Railroad Company and the Brooklyn Heights Railroad Company. No opinion. Julgment affirmed, with costs.

SEWELL, J., not sitting.

CAHILL, Appellant, v. LICHTENSTADTER, Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by James B. Cahill Holt & Duross, against Max Lichtenstadter.

for appellant. J. Martin, for respondent.

PER CURIAM. The evidence sufficiently establishes a prima facie case. The truck had painted upon it the words, "M. Lichtenstadter, 54th Street and 1st Avenue." It was loaded with what appeared to be flour barrels. Defendant was engaged in the flour business at 986 First avenue, near Fifty-Fourth street. The facts established were sufficient to put defendant upon his proof. Misc. Rep. 227, 28 N. Y. v. Koehler, 122 N. Y. 646 ment reversed, and new costs.

Doherty v. Lord, 8 Supp. 720: Seamen 25 N. E. 353. Judg trial ordered, with

CALMORE, Respondent, v. CAPEN, Appellant. (Supreme Court. Appellate Division, Second Department. October 24, 1901.) Action by Evelena Calmore against Mary Louise Capen, impleaded with others. No opinion. Order affirmed, with $10 costs and disbursements.

In re CAMPBELL. (Supreme Court, Appelate Division, First Department. October 18, 901.) In the matter of William Campbell, deeased. No opinion. Motion denied on payment of $10 costs.

In re CAMPBELL. (Supreme Court, Appelate Division, First Department. October 25, 901.) In the matter of William Campbell. No opinion. Motion denied.

CAMPBELL V. CAMPBELL. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by John H. Campsell against Anna M. Campbell. No opinion. Motion granted, with $10 costs.

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CANTINE, Respondent, v. RUSSELL et al., Appellants. (Supreme Court, Appellate Diviion, Third Department. September 13, 1901.) Action by Sarah A. Cantine, as executrix of he last will and testament of Peter Cantine, eceased, against George W. Russell and Fredrick T. Russell. No opinion. Leave is granted to go to the court of appeals, and the folowing question certified: "Was the order of -eference granted herein authorized by section 1013 of the Code of Civil Procedure?"

CHAMBERS v. SEYMOUR et al. (Supreme Court, Appellate Division, Second Department. October 21, 1901.) Action by Sidey C. Chambers against Henry A. Seymour, Frederick W. Johnson, and David Webster, No opinion. Order affirmed, with $10 costs and disbursements.

tiff's account. If the defendants have sold the stock thus purchased for the plaintiff without authority, the plaintiff's cause of action would be to recover the stock purchased for his ac-, count or damages for a conversion thereof. It' follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs. VAN BRUNT, P. J., and O'BRIEN and LAUGHLIN, JJ., concur. PATTERSON, J., dissents.

CLARK, Respondent, v. MORAN, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Amasa B. Clark against Mary J. Moran. M. Steinert, for appellant. C. A. Perkins, for respondent. No opinion. Judgment affirmed, with costs.

CLARKE, Appellant, v. McMAHON et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 11, 1901.) Action by Audley Clarke, as surviving partner of the firm of Christian & Clarke, against Thomas F. McMahon and Mary E. McMahon, his wife, E. S. Calvert and others. No opinion. Order modified, so as to permit the taxation of but one term fee, and, as so modified, affirmed, without costs.

CLEMMONS, Respondent, v. BRINN, Appellant, et al. (City Court of New York, General Term. May, 1901.) Action by William F. Clemmons against Isaac Brinn, impleaded with others. Levy & Unger (Charles Haldane, of counsel), for appellant. Abraham A. Joseph, for respondent.

costs and disbursements.

WOODWARD, J., absent.

CLARK, Respondent, v. ENNIS et al., Appellants. (Supreme Court, Appellate Division, First Department. November 8, 1901.) Action by John N. Clark against Thomas A. Ennis and another. From an order denying defendants' motion to vacate an order for the examnation of the defendants for the purpose of enabling plaintiff to frame his complaint, defendants appeal. Reversed. Parker J. Deane, for appellants. Ellis B. Southworth, for respondent.

INGRAHAM, J. The question presented on this appeal is substantially the same as that presented on the appeal in the case of Clark v. Ennis (decided herewith) 72 N. Y. Supp. 581. We think in this case, as in that, that there is nothing to show that the examination of the defendants was necessary to enable the plaintiff to prepare his complaint. In this case, as in that, it appears that the plaintiff ordered certain stocks to be purchased, and that the defendants feported that such stocks had been purchased; and the defendants allege here that such stocks had been purchased for the plain

property as given by the plaintiff, and upon cloth, and the particular description of the which lie relies for identification, is "whether the same is manufactured or unmanufactured, or in process of manufacture, but capable of identification," as the same appears in the plaintiff's affidavit; and precisely the same language appears in the complaint. The defendant Brinn alone defends, and, as one of his defenses, pleads a discharge in bankruptcy, and also joins issue upon the chief allegations in the complaint. Fraud is the very essence of the case at bar, and it is upon this very ground that the plaintiff seeks to rescind a contract of sale and to recover his property or its value. The case bristles all over with allegations and evidence of fraud and fraudulent intent, and so the learned trial judge, in one of the questions which he submitted to the jury, said: "Were the goods fraudulently purchased by the defendant Ellen Pinstein?" The finding of the jury upon all of the evidence, and under the charge of the court, which was eminently fair to the defendant, was to the effect that the transaction between the plaintiff and the defendant Pinstein was a fraud practiced upon the former, and that the possession of the property, which was the subject of the action, by the defendant Brinn, was, under the circumstances detailed, such an acceptance and adoption by him of the fraud of his codefendant as to render him liable, and because of these fraudulent

practices he cannot and could not in law claim any immunity by reason of his alleged discharge in bankruptcy. We think the verdict of the jury is well supported by the evidence, and that no errors were committed upon the trial to the prejudice of the defendant; and, holding these views, we think the judgment and order appealed from should be affirmed, with costs. Judgment affirmed, with costs.

HASCALL and O'DWYER, JJ., concur.

COLUMBIA MUT. BUILDING & LOAN ASS'N OF NEW YORK, Respondent, v. MITTNACHT, Appellant, et al. (Supreme Court, Appellate Division, Second Department. October 23, 1901.) Action by Columbia Mutual Building & Loan Association of New York against Jacob A. Mittnacht, as substituted trustee, etc., impleaded with William T. Brown. No opinion. Order settled and signed. See 70 N. Y. Supp. 1098.

CONGDON, Respondent, v. WESTCOTT EXP. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 8, 1901.) Action by Merritt J. Congdon against the Westcott Express Company.

PER CURIAM. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide event, upon the authority of Osterhout v. Rabe, 39 App. Div. 413, 57 N. Y. Supp. 336. Plaintiff to have the right to exercise the option specified in the order appealed from. Form of order to be settled by and before Mr. Justice SPRING, upon two days' notice. All concur, except McLENNAN and HISCOCK, JJ., who dissent.

CONGDON, Respondent, v. WESTCOTT EXP. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 8, 1901.) Action by S. Grace Congdon against the Westcott Express Company.

PER CURIAM. Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide event, upon the authority of Osterhout v. Rabe. 39 App. Div. 413, 57 N. Y. Supp. 336. Plaintiff to have the right to exercise the option specified in the order appealed from. Form of order to be settled by and before Mr. Justice SPRING, upon two days' notice. All concur, except McLENNAN and HISCOCK, JJ., who dissent.

COOK. Respondent, v. WHITE et al., Appellants. (Supreme Court, Appellate Division. Second Department. October 11, 1901.) Action by Sarah Cook against Joseph White and others. No opinion. Order affirmed, with $10 costs and disbursements.

COOMBS, Respondent, v. CITY OF MT. VERNON, Appellant. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by Thomas S. Coombs against the city of Mt. Vernon. No opinion. Judgment and order unanimously affirmed, on authority of Archer v. City of Mt. Vernon, 63 App. Div. 286, 71 N. Y. Supp. 571, with

costs.

COOPER, Respondent, v. FISKE et al, Ap pellants. (Supreme Court, Appellate Divisio Second Department. October 4, 1901.) Act by Henry H. Cooper against Robert T. ? Fiske and Stewart Brown. No opinion. Jadp ment and order affirmed, with costs.

COPPOLA, Respondent, v. GROSS, City Marshal, Appellant. (Supreme Court. Arlate Term. June, 1901.) Action by Jennie Co pola against Max Gross, as one of the ne shals of the city of New York. H. J. Hindes for appellant. J. Palmieri, for respondent. PER CURIAM. Where the evidence is reflicting, this court declines to interfere with the jury's verdict. There seems, however, t have been immaterial evidence admitted a the trial, under objection, which may well have affected the minds of the jury. The issues presented were title to merchandise and is market value at time levied upon by defen. ant, and the extent of the levy. Under these issues, the testimony of the plaintiff as to be father's business, and the cross-examinat of the witness Borschardt relating to the stoc and affairs of a tea company, seem to have been proof entirely irrelevant and incompetent This may well have prejudiced the defendant? rights, and its admission furnished ground for reversal. Judgment (68 N. Y. Supp. 942) re versed, and new trial ordered, with costs t abide event.

CORBETT, Appellant, v. ST. VINCENTS INDUSTRIAL SCHOOL OF UTICA, R spondent. (Supreme Court, Appellate Div sion, Fourth Department. October 1, 1901 Action by James Corbett, infant, etc.. agane St. Vincent's Industrial School of Utica. N opinion. Order affirmed, with $10 costs and disbursements.

RUMSEY, J., not sitting.

CRAIG, Appellant, v. ROBERTSON. Re spondent. (Supreme Court, Appellate Term June, 1901.) Action by Alida B. Craig agains Mary Robertson. McElheny & Bennett. for appellant. James E. Smith, for respondent.

PER CURIAM. While the conflicting testmony may render the disallowance of cou pensation from August 20th to the date of as tual employment on September 8th correct, the judgment given is manifestly erroneous for these reasons: There is an admission that the sum of $17.85 is due the plaintiff for sertices rendered, and there was no legal tender of that sum by payment into court. Had there been, it would be insufficient, because the pla tiff at the second trial was entitled, in addi tion to the costs on her successful appeal, with disbursements and the costs paid below on the first trial. Judgment reversed, and new trial ordered, with costs to abide event.

CSATLOS v. METROPOLITAN ST. RI CO. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Action by William Csatlos against the Metropolitan Street Railway Company. No opinion. Mo