nst the Third Avenue Railroad Company. ER CURIAM. We have examined with PER CURIAM. The plaintiff found it necELAND, Appellant, v. HEARN et al., Re-essary to call the defendant for the purpose of ondents. (Supreme Court, Appellate Divi- establishing his case. The defendant was cern. First Department. November 8, 1901.) tainly a hostile witness, and considerable latition by Eveline Leland, as administratrix, tude should have been given in her examinaof George Leland, deceased, against tion. The plaintiff had testified to conversaorge A. Hearn and others. From a judg- tions had with her, which, if true, would nt dismissing the complaint, plaintiff ap- strongly tend to establish her liability. In als. Affirmed. Ernest T. Fellowes, for ap- answer to the plaintiff's attorney, she denied llant. Frank V. Johnson, for respondents. the authority of her son to make any contract VAN BRUNT, P. J. After a careful examfor her. Counsel put a series of questions to ition of the record in this case, we are of her regarding the conversations to which the e opinion that the judgment should be af- plaintiff testified, and upon objection she was med. The evidence offered by the defend- not allowed to answer them. We think that under the circumstances plaintiff was clearly ts conclusively disposes of any basis for a ding of negligence upon their part. The entitled to a much wider opportunity for examining this witness than was permitted by igment should be affirmed, with costs. the learned trial court. Judgment reversed, and new trial ordered, with costs to abide the event. (Su LENANE, Respondent, V. BRESLOW- PER CURIAM. This judgment cannot be and 106 New York State Reporter LEVY, Respondent, v. ZEMAN, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Abraham Levy against Isaac Zeman. Abraham L. Goldstone, for appellant. Aaron Morris, for respondent. PER CURIAM. The evidence would have justified a judgment against both defendants. It was upon the appellant's own motion that no judgment was rendered against the codefendant. He cannot now be heard to object that his motion was granted. The judgment was not against the weight of evidence. The defendant's story that the services were rendered as a matter of courtesy only is most improbable. Judgment aflirmed, with costs. LEWENGOOD, Respondent, V. KAHN, Appellant. (City Court of New York, General Term. May, 1901.) Action by Samuel Lewengood against Emanuel H. Kahn. Wasserman & Jacobus, for appellant. Leo G. Rosenblatt, for respondent. PER CURIAM. We are agreed that the record does not present a case that would justify an interference with the discretion exercised by the court at special term; but, in view of the fact that the defendant has died since that determination, leave is granted to the executors, as substituted defendants, to apply anew for a bill of particulars. Order appealed from affirmed, with $10 costs. Order affirmed, with $10 costs. LIBERMAN et al., Respondents, v. WILSON, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Isaac Liberman and others against Isaac Wilson. Fluegelman & Bach, for appellant. Stern, Singer & Barr, for respondents. PER CURIAM. In this action, which is for goods sold and delivered, the defendant interposed a general denial. The record is absolutely bare of evidence as to the amount, character, or value of the goods alleged to have been sold. How the justice arrived at the figure for which he awarded judgment it is impossible to guess. The judgment must be reversed, and a new trial granted, with costs to abide the event. Judgment reversed, and new trial granted, with costs to abide event. LILWALL et al., Respondents, v. SIESET Appellant. (Supreme Court, Appellate Te June, 1901.) Action by George Lilwali 1: others against Amanda Siesel. Fleischman Fox, for appellant. D. O'Sullivan, for spondents. No opinion. Judgment afras with costs. LOCKWOOD, Respondent, v. O'REILLY. Appellant. (Supreme Court, Appellate D.S sion, Second Department. October 11, 1961 Action by George W. Lockwood against Plig O'Reilly. No opinion. Judgment affirmed t default, with costs. In re LONG ISLAND LOAN & TRUST CO. (Supreme Court, Appellate Division, S ond Department. October 18, 1901.) In the matter of the application of the Long Island Loan & Trust Company to be designated as a depository. No opinion. Application refer red to William C. Beecher, and order signed LOSCHE, Appellant, v. TAYLOR, Respond ent. (City Court of New York, General Terz May, 1901.) Action by George F. Losche against James Taylor. Alvin Summers, for appellant. Theodore Prince, for respondent FITZSIMONS, C. J. Upon the argument of this appeal, the respondent's attorney contended that at the trial the methods adopted by the appellant's attorney and the testimony of his witnesses were so confusing that even the trial justice could not make head or tali of this case. The verdict of the jury also shows that they likewise were confused, and lost sight of the issues involved, because, in spite of the fact that the defendant admitted that he owed the plaintiff $25, they found a verdict in the defendant's favor. The evidence has also confused us. In view of a the facts and circumstances surrounding this action, we think that the interests of justice! will be best served by granting a new trial Judgment reversed, and a new trial ordered. DELEHANTY and SCHUCHMAN, JJ, ¦ concur. LOVELL et al., Respondents, v. ROEBUCK, Appellant. (Supreme Court, Appel late Term. June, 1901.) Action by J. Hallett Lovell and others against John Roebuck. Edmund F. Driggs, for appellant. Herbert J. Hindes, for respondents. PER CURIAM. The plaintiffs' cause of action was abundantly sustained by the er dence. The defendant repeatedly admitted the correctness of the account, except as to a few small items, which appear to have been allowed to him. The counterclaim seems to have been an afterthought, as it was wholly disallowed. It is of no consequence whether the justice was right or wrong in refusing the motion to allow defendant to increase the amount for which he counterclaimed. Judg ment affirmed, with costs. OWRY, Respondent, v. COLLATERAL | quested, yet, upon the whole, we determine that AN ASS'N, Appellant, et al. (Supreme fatal error was not committed by refusal. The urt, Appellate Division, First Department. case was carefully and impartially presented he Term, 1901.) Action by Mary B. Lowry for the jury's consideration of the facts; and ainst the Collateral Loan Association, im- the verdict, in view of the long and continued aded with Morris Browitz. The following is use of the path by plaintiff and the public, opinion of LAWRENCE, J., delivered at having held the defendant to have been negliecial term: "The facts in this case, as stat- gent, will be permitted to stand. Beck v. Carin the complaint, are similar to those which ter, 68 N. Y. 293, 23 Am. Rep. 175. Judgment pear in the case of Lowry v. Association, should be affirmed, with costs. Judgment afApp. Div. 240, 71 N. Y. Supp. 822, and firmed, with costs. - the reason stated in that opinion there CONLAN, J., concurs. st be judgment for the plaintiff overruling - demurrer, with costs, with leave to answer -on payment of costs." PER CURIAM. Judgment affirmed, with =ts, on opinion of court below, with leave defendant to withdraw demurrer and answer 20 days, on payment of costs in this court d in the court below. In re LUDLUM. (Supreme Court, Appele Division, Fourth Department. September 1901.) In the matter of the application John Ludlum, a citizen and resident of the wn of Yates, county of Orleans, N. Y., for order for the removal of John Putnam vy from his office as a justice of the peace the said town of Yates. No opinion. Pre minary objection_overruled, and further hearset down for Friday, October 4th, next. McCORKLE, Respondent, v. ELLIS, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Henry H. McCorkle against William H. Ellis. William C. Prime, for appellant. Henry H. McCorkle, pro se. PER CURIAM. The record offered in evidence was not exemplified as required by Rev. St. U. S. § 905. Neither can the transcript of the justice, with the certificate of the county clerk attached, be availed of, as Texas is not an adjoining state. Code Civ. Proc. &§ 948; Bent v. Glaenzer, 17 Misc. Rep. 569, 40 N. Y. Supp. 657. The only other method of proving the jurisdictional fact is by common-law proof. Judgment reversed, and new trial ordered, with costs to abide event. MCCREA, Respondent, v. CLARKE, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Augustus L. McCrea against Peete B. Clarke. Holt & Duross, for appellant. E. S. Hull, for respondent. MCCANN, Respondent, v. NEW YORK & C. RY. CO., Appellant. (Supreme Court, ppellate Division, First Department. NovemPER CURIAM. It appears by the testimony er 8, 1901.) Action by Catherine McCann, =administratrix, etc., against the New York that the plaintiff's assignor fulfilled all his obliQueens County Railway Company. From a gations under the written contract, while the defendant defaulted under his obligation to disdgment in favor of plaintiff, and from an orer denying a motion for a new trial, defendant pose of the $500 of stock for the personal benepeals. Reversed. Wm. E. Stewart, for ap-imagine how the learned court below could fit of the plaintiff's assignor. It is difficult to ellant. J. Brownson Ker, for respondent. have reached a different conclusion. Judgment affirmed, with costs. VAN BRUNT, P. J. We do not think it necssary to write any further opinion upon the acts of this case. We think that the verdict as against the evidence upon the points of the efendant's negligence and the contributory egligence of the deceased, and also that the amages were excessive. For these reasons the dgment and order should be reversed, and a ew trial ordered, with costs to the appellant abide the event. INGRAHAM and LAUGHLIN, JJ., concur. PATTERSON, J., dissents. MCCANN, Respondent, v. THILEMANN et 1., Appellants. (City Court of New York, Genral Term. May, 1901.) Action by Peter McCann against Frederick Thilemann, Jr., and thers. Weeks. Battle & Marshall, for appelants. Robert H. Ernest (Percy W. Crane and . Aspinwall Hodge, Jr., of counsel), for re-pondent. MCCREA, Respondent, V. CARLSTADT CHEMICAL CO., Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Augustus L. McCrea against the Carlstadt Chemical Company. Holt & Duross, for appellant. E. S. Hull, for respondent. PER CURIAM. The record contains no exceptions, nor any other proceeding which would enable this court to interfere with the jury's verdict. Judgment affirmed, with costs. MCGRATH, Appellant, v. ALGER, Respond. ent. (Supreme Court, Appellate Division, Second Department. October 11, 1901.) Action by Thomas M. McGrath against William C. Alger, as executor, etc., of Cyrus D. Alger, deceased. No opinion. Order affirmed, with $10 costs and disbursements. JENKS, J., absent. HASCALL, J. This case presents a very lose question upon the law,-in short, is at he border line. But, while we might possibly MACK et al., Respondents, v. JOHN SIN Disagree with the learned court below in de- GLE PAPER CO., Limited, Appellant. clining to charge all that the appellants re-preme Court, Appellate Division, Fourth De- (Su and 106 New York State Reporter partment. October 8, 1901.) Action by James L. Mack and another against the John Single Paper Company, Limited. PER CURIAM. Judgment and order affirmed, with costs. All concur, except McLENNAN, J., who dissents upon the ground that the boiler, which concededly had a hole in one of the flues, which had been plugged, was not "sound in every respect" as guarantied by the plaintiff. RUMSEY, J., not sitting. MALFIT, Appellant, v. OPPENHEIMER, Respondent. (City Court of New York, General Term. May, 1901.) Action by Alesandro Malfit against Isaac Oppenheimer. Achille J. Oishei (Nelson L. Keach, of counsel), for appellant. Hippolyte A. Geney, for respondent. O'DWYER, J. There was sufficient evidence in this case to entitle the plaintiff to have the question of the defendant's alleged conversion of his horse submitted to the jury. The plaintiff testified that at an interview with the defendant, the defendant said to him: "Me stole your horse. How much do you want, Mr. Malfit?" This was an admission by the defendant sufficient to entitle the plaintiff to recover, unless overcome by evidence on the defendant's behalf. Furthermore, error was committed in excluding the answers to the following questions addressed to the plaintiff: "Q. Did you find out afterwards who took that horse? Q. Did you know what was the value of that horse on July 1, 1898? Q. Was there any money paid on that evening, August 15th, by Mr. Oppenheimer, by order of the defendant?. Q. Were you down to the police court at the time he was arrested?" The other errors assigned need not be discussed, as they may be cured on a new trial. Judgment appealed from reversed, and a new trial ordered, with costs to appellant to abide the event. CONLAN, J., concurs. MALONE et al., Respondents, v. WEILL al., Appellants. (Supreme Court, Appellate Dvision, Second Department. October 18, 1961 Action by Joseph Malone and another aging Elie Weill and others. No opinion. Order : firmed on argument, with $10 costs and bursements, without prejudice to applicatie to Mr. Justice CHESTER for resettlement the case. MANHATTAN HYGEIA ICE CO., Respondent, v. PEOPLE'S CO-OP. ICE CO., Appelant. (Supreme Court, Appellate Term. Je 1901.) Action by the Manhattan Hyla Ice Company against the People's Co-operative Ice Company. Swayne, Swayne, Morris & Faj. for appellant. R. D. Geswein, for responder No opinion. Judgment affirmed, with costs. MANIER et al., Respondents, v. PALMET. et al., Appellants. (Supreme Court, Appellate Division, Third Department. September 13 1901.) Action by James W. Manier and a other, as executors, etc., against Willis E Palmer, Henrietta A. Wilson, and another, a executors, etc. No opinion. Order affirmed with $10 costs and disbursements. MARCIERO, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court. Appellate Term. June, 1901.) Action by Domenico Marciero against the Metropolitas Street Railway Company. H. A. Robinson (G. Glenn Worden, of counsel), for appellant Gottlieb, for respondent. No opinion. Judg ment affirmed, with costs. H MARINO v. LEHMAIER. (Supreme Court Appellate Division, First Department. October 18, 1901.) Action by Vito Marino agains Louis A. Lehmaier. No opinion. Motion de nied, with $10 costs. 3. Masse against the Metropolitan Street Railay Company. H. A. Robinson (G. Glenn Vorden, of counsel), for appellant. Herman Gottlieb, for respondent. date. At maturity the three-months note was presented for payment, but was not paid, and subsequently it is claimed an agreement was made by plaintiff, who was still the owner and holder of the dishonored note, and defendant, consideration of his doing so, defendant should that plaintiff should renew this note, and, in indorse the six-months note and also the re PER CURIAM. The case turned upon the nestion of contributory negligence of the plainiff's driver in attempting to cross a track head of a moving car. The question was sub-newal note; and it is further claimed that, purnitted to the jury in a charge to which no exeption was taken. The jury having found in avor of plaintiff, we see no reason to disturb heir verdict. Judgment affirmed, with costs. MAYER, Respondent, v. NETHERSOLE, Appellant. (Supreme Court, Appellate Division, First Department. November 8, 1901.) Action by Marcus R. Mayer against Olga Nethersole. From an order denying a motion to retax a referee's fees, defendant appeals. Af irmed. B. Steinhardt, for appellant. N. L. Erlanger, for respondent. PER CURIAM. We think the referee's fees In this case are exorbitant, but there is nothing shown upon this record which authorizes us to nterfere with them. The order should be affirmed, with $10 costs and disbursements. MIDDLETON, Respondent, v. HALTER, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Solomon S. Middleton against Alexander J. Halter. Isaac V. Schavrien, for appellant. Douglass & Minton (Henry B. Corey, of counsel), for respondent. PER CURIAM. This action was brought against defendant as indorser upon two promissory notes made by one Henry D. Stringer, of which plaintiff was the owner and holder. Each note was for $640 and interest. One was payable in three months after February 6, 1900, and the other in six months from said suant to this agreement, defendant indorsed neither of the notes was paid, and both were both notes. Upon presentation at maturity, duly protested. The defense litigated upon the trial was that the indorsements were obtained by false and fraudulent representations made to the defendant regarding the terms and conditions of a deed of conveyance by which certain real estate had been conveyed by defendant to plaintiff. The false representations, it is conceded, were to the effect that defendant was liable for certain unpaid water rents and taxes, whereas in truth no such liability existed. Defendant insisted that it was on reliance upon false representations regarding his liability by the terms of the deed that he was sideration of the renewal of the dishonored induced to indorse the notes, and not in connote. The charge of the learned trial court indicates that the presiding justice entertained some pretty strong views on the facts, but no exception was taken to his remarks. The judgment was affirmed on appeal in the court below, and, as our decision must rest upon exceptions properly taken, we are not called upon to review the facts. Judgment (69 N. Y. Supp. 510) affirmed, with costs. MILLER, Respondent, V. METROPOLITAN ST. RY. CO., Appellant. (City Court of New York, General Term. May, 1901.) Action by Margaretha Miller against the Metropolitan Street Railway Company. Henry A. Robinson (John T. Little, of counsel), for appellant. Alfred & Charles Steckler (Charles Steckler, of counsel), for respondent. FITZSIMONS, C. J. The evidence conclu sively proves that plaintiff was injured through the negligence of defendant's servant, and that she was free from contributory negligence. She was seriously injured. Two of her fingers were rendered useless. One of her arms she cannot raise higher than her ear, and it is quite use. less. She was confined to her room for several weeks, suffered pains and aches, and was otherwise physically and mentally injured and dis |