and 106 New York State Reporter tressed. For all these injuries the jury award- tion by Ida Mulford against Charles Leslie Mcled her $1,500, which, we think, was quite rea- ford. No opinion. Motion to dismiss appeal sonable. The defendant thinks the verdict gross-granted, with $10 costs, unless the appellat ly excessive, and this apparently is the only serves papers and brings the case to argument justification which it has for taking this ap- at the November term. peal. The judgment is affirmed, with costs and disbursements to respondent. Judgment affirmed, with costs to respondent. DELEHANTY and SCHUCHMAN, JJ., con cur. MOON, Appellant, v. MARKS, Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by Sidney N. Moon against Stewart Marks. Ford & Tuttle, for appellant. C. C. Nadal, for respondent. PER CURIAM. Aside from other questions, there are some undisputed facts which fully support the conclusion of the learned court below. These may be briefly stated. There is no proof of any employment of the plaintiff by the claimed for. There is a lack of evidence that they were rendered for the association by even the suggestion of itself or any of its officers. It also appears that the plaintiff represented one of the associate corporations in the association, and that the services rendered by him were as representative of that corporation, with a strong probability that he was compensated therefor by it. We think the court below was right. Judgment affirmed, with costs. defendant association to render the services MOREHOUSE, Respondent, v. CHATHAM ELECTRIC LIGHT CO., Appellant. (City Court of New York, General Term. May, 1901.) Action by James Morehouse against the Chatham Electric Light Company. Thomas H. Smith (Henry B. Twombly, of counsel), for appellant. A. M. & G. Card (Edward S. Griffing, of counsel), for respondent. No opinion. Judgment and order appealed from affirmed, with costs. MULHOLLAND, Respondent, v. MCKEEV. ER, Appellant (two cases). (Supreme Court, Appellate Division, Second Department. Octo ber 18, 1901.) Actions by Thomas H. Mulhol land and by Mary J. Mulholland against Eward J. McKeever. No opinion. Motion for reargument, or for leave to appeal to the court of appeals, denied. See 72 N. Y. Supp. 138. MULLER v. UNION RY. CO. (Supreme Court, Appellate Division, First Department October 18, 1901.) Action by John Muller against the Union Railway Company. No opinion. Motion denied. (Supreme Court, Appellate Division, Second MULRY, Appellant, v. MULRY, Respondent. Lawrence V. Mulry against Eliza Mulry. No Department. October 11, 1901.) Action by opinion. Order affirmed, with $10 costs and disbursements. MUTUAL LIFE INS. CO. OF NEW YORK v. ZENNER et al. (Supreme Court. Appellate Division, Fourth Department. October 8, 1901) Action by the Mutual Life Insurance Company of New York against John P. Zenner and others. No opinion. Order affirmed, with $10 costs and disbursements. NEW ENGLAND WATERWORKS CO. Appellant, v. FARMERS' LOAN & TRUST CO., Respondent. (Supreme Court, Appellate Division, First Department. November & 1901.) Action by the New England Waterworks Company against the Farmers' Loan & Trust Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed. For de cision on first trial, see 66 N. Y. Supp. 811. George H. Yeaman, for appellant. David Me MOWBRAY, Appellant, v. SHELDON, Re-Clure, for respondent. spondent. (Supreme Court, Appellate Division, First Department. November 8, 1901.) Action by William E. Mowbray against George R. Sheldon. From an order requiring security for costs, plaintiff appeals. Reversed. G. W. Carr, for appellant. G. E. Mahony, for respondent. VAN BRUNT, P. J. The ground upon which this order was made seems to have been that the suit was vexatious. It is sought to sustain the order by claiming that the plaintiff is the trustee of an express trust, but an examination of the pleadings fails to disclose any ground upon which such a position can rest. The action seems to be an action for damages, and nothing else. Under these circumstances, the court was without authority to make an order requiring the plaintiff to file security for costs. The order must be reversed, with $10 costs and disbursements, and the motion denied. PER CURIAM. The facts presented by the record on this appeal are substantially the same as those presented on the former one. This court held on the former appeal that upon the facts then presented no liability whatever had been established against the defendant, and the judgment recovered by the plaintiff was reversed and a new trial ordered. Upon the second trial the learned trial justice, following the decision of this court, dismissed the complaint at the close of plaintiff's case, and in so doing we think no error was committed. The facts and the law applicable thereto were fully considered by us on the former appeal, and it is not necessary, therefore, to again consider them. The judgment appealed from must be affirmed, upon the opinion delivered upon the first appeal. 54 App. Div. 309, 66 N. Y. Supp. 811. Judgment affirmed, with costs. MULFORD, Respondent, v. MULFORD, Ap- NEW YORK INFANT ASYLUM, Respondpellant. (Supreme Court, Appellate Division, ent, v. CITY OF MT. VERNON, Appellant. Second Department. October 23, 1901.) Ac-(Supreme Court, Appellate Division, Second De NOLL, Respondent, v. LEVY et al., Appelnts. (Supreme Court, Appellate Term. June, 01.) Action by Albert Noll against George vy and Bernard S. Levy. Wolf, Kohn & Ilman, for appellants. Harry A. Archibald, r respondent. PER CURIAM. This is an action to recover e amount due upon a certain contract for ectrical work and materials. The amount due the plaintiff is not disputed. The defendants e sued as copartners, the allegation being at Gec W. Levy and Bernard S. Levy, his ther, did business as partners under Geo. W. evy's name. The plaintiff's testimony on this bject is that Bernard S. Levy made stateents to him to the effect that he was emarrassed, and could do no business in his own ame, and therefore did it under cover of his on's name. He certainly was active in the pervision of the work. Any copartnership denied by both defendants, but their attempt1 explanations of the elder Levy's connection ith the work are contradictory and unsatisactory. Upon the whole the evidence was suffient to justify the finding that they were jointengaged in the enterprise in connection with hich the plaintiff did work. It was attempted > show that the plaintiff consented to a comosition between Geo. W. Levy and his credThe evidence tendered to support this lea was that plaintiff had said that he would gree to anything a majority of the creditors greed to, and that a majority of the creditors id agree to refrain from bringing action for a ertain period. This was all denied by the laintiff, and the justice found in his favor pon the issue. Judgment affirmed, with costs. ors. sold by the plaintiff to defendants. The only question in dispute was concerning the quality of the lumber delivered, and because thereof the defendants claimed a reduction of $20 in the amount of the bill. The case is neither long nor difficult, and no exceptions appear to have been taken to the charge to the jury. Upon the question of quality, there was a dispute between the witnesses for the plaintiff and defendants, and the difference thus arising was submitted to the jury, and they determined the same in favor of the plaintiff. With such a deon appeal are not disposed to interfere. It was termination upon a conflict of evidence, courts a simple question of fact, and to our minds not difficult to determine, and we do not find in the record any reason for disturbing the conclusions reached by the jury. Judgment and order appealed from must be affirmed, with costs. Judgment and order affirmed, with costs. HASCALL and O'DWYER, JJ., concur. NORTH AMERICAN BREWING CO., Respondent, v. MEYER, Appellant. (Supreme Court, Appellate Division, Second Department. October 24, 1901.) Action by the North American Brewing Company against Henry Meyer. No opinion. Judgment of the municipal court affirmed, with costs. OBREGON, Respondent, v. DE LIMA, Appellant, et al. (City Court of New York, General Term. May, 1901.) Action by Pario Emilio Obregon against Elias A. A. De Lima and others. Weil & Weil (Arnold Charles Weil, of counsel), for appellant. Parsons, Shepard & Ogden (Wm. Mason Smith, H. B. Closson, of counsel), for respondent. CONLAN, J. The affidavit upon which the order to examine the defendant was granted is in our view amply suflicient on which to have granted the application. It presents a case under subdivision 4 of section 872 of the Code of Civil Procedure, which in our mind entitles the plaintiff to the relief asked. Subdivision 4 provides that the affidavit shall set forth the name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making such application, or the prosecution or defense of such action. The affidavit not only does this in the precise language of the section and subdivision, but it does a great deal more; and the defendant, whose examination is sought, could in no manner be prejudiced by an examination such as is asked for, and had in accordance with the provisions of the section. This case may well be distinguished from that of Bank v. Sinclair (in this court) 16 N. Y. Supp. 88. Here the examination is not asked for so as to dispense with the necessity of procuring other or absent witnesses. The reason for it is more plainly stated, that the foreign witness upon whom the plaintiff might confidently rely is a resident of a country afflicted with serious political and internecine strife, and other reasons are given why his attendance could not be procured at the trial, or his evidence obtained on and 106 New York State Reporter commission, and the object is to prevent surprise on the trial. The defendants do not, in our view of the case, present any substantial or well-founded reason for interfering with the result reached at special term, and the order appealed from should therefore be affirmed, with costs. Order affirmed, with costs. HASCALL and O'DWYER, JJ., concur. O'CONNELL, Appellant, v. CLARK et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 11, 1901.) Action by James O'Connell against John T. Clark and another. No opinion. Order affirmed, with $10 costs and disbursements. In re O'HARA. (Supreme Court, Appellate Division, Fourth Department. October 1, 1901.) In the matter of the application of John B. O'Hara for a writ of mandamus. No opinion. Motion to modify order (71 N. Y. Supp. 613) by striking out the provision awarding costs, and providing that the application for writ of mandamus be denied, without costs, granted. O'NEIL, Appellant, v. NEW YORK, C. & ST. L. R. CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. October 8, 1901.) Action by Joseph J. O'Neil, by James O'Neil, his guardian ad litem, against the New York, Chicago & St. Louis Railroad Company. No opinion. Judgment affirmed, with costs. RUMSEY, J., not sitting. O'NEIL, Appellant, v. PRUDENTIAL INS. CO., Respondent. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by Mary E. O'Neil against the Prudential Insurance Company. No opinion. Judgment of the municipal court affirmed, with costs. tion for conversion, nor is the judgment as rendered appropriate in such an action. Judgment reversed, and new trial ordered, with costs to abide event. PATCHEN. Appellant, V. PRESIDENT ETC., OF DELAWARE & H. CANAL CO., Re spondents. (Supreme Court, Appellate Division Third Department. September 13, 1901.) Action by Francelia O. Patchen against the president, etc., of the Delaware & Hudson Canal Copany. No opinion. Order staying proceedings affirmed, with $10 costs and disbursements. SMITH, J., not voting. PALMER, Appellant, v. DURAND, Re-action,-for work, labor, and services; balance spondent. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Action by William D. Palmer against Marie Durand. No opinion. Motion denied. PARMENTER et al., Respondents, v. GENET, Appellant. (Supreme Court, Appellate Division, Third Department. September 13, 1901.) Action by Roswell A. Parmenter and Franklin J. Parmenter against George C. Genet. No opinion. Order affirmed, with $10 costs and disbursements. PASHKOWSKY, Respondent, v. DISKIN et al., Appellants. (Supreme Court, Appellate Term. June, 1901.) Action by Israel Pashkowsky against Julius Diskin and Morris Bergin. Manheim & Manheim, for appellants. Elias Rosenthal, for respondent. PER CURIAM. The plaintiff's own version of the transaction between himself and defendants does not justify a judgment in an ac PER CURIAM. There were four causes of due upon a contract; money paid out; and rent. The answer was payment, and was amended by adding accord and satisfaction. At the close of the testimony the learned trial judge said: "I hold that there was an ace rd and satisfaction as appears from Plaintiff's Exhibit No. 10." By an examination of the Plaintiff's Exhibit No. 10, we find that it was an agreement between the plaintiff and the de fendant, by the terms of which the plaintif accepted the surrender of the laundry for the unexpired term of the defendant's lease upen certain terms regarding the payment of past rent and other things, to which the defendant agreed. As the action was in part for the rent past due. it is difficult to see how the agreement can be an accord and satisfaction. Judgment reversed, and new trial ordered, with costs to abide event. PEOPLE, Respondent, v. FUCHS. Appellant. (Supreme Court, Appellate Division, Fourth Department. October 18, 1901.) Pro ceeding by the people of the state of New York against Charles Fuchs. PER CURIAM. Judgment and conviction reversed, and new trial ordered in the county Court. Held, that the evidence connecting the defendant with the crime charged is insuffiient. All concur, except ADAMS, P. J., and WILLIAMS, J., who dissent. PEOPLE v. GRANITE STATE PROVIDENT ASS'N. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Proceeding by the people of the state of New York against the Granite State Provident Association. PER CURIAM. This application is nothing more or less than a proposition to hand over to the New Hampshire assignee, without security, the special fund for the benefit of the New York stockholders, which this court and the court of appeals have decided should not be paid to said assignee unless he gave security in a sum equal to double the amount. Motion denied. PEOPLE, Appellants, v. GUHL, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 1, 1901.) Proceeding by the people of the state of New York against Herman F. Guhl. No opinion. Judgment and order affirmed, with costs. RUMSEY, J., not sitting. PEOPLE v. KELLER. (Supreme Court, Special Term, Herkimer County. May, 1901.) Proceeding by the people of the state of New York against Elias Keller. P. H. McEvoy, for the People. Richard Hurley, for defendant. HISCOCK, J. Defendant's motion for a retaxation of plaintiff's costs herein, striking out certain disbursements in excess of the amount of $25 taxed by him as costs, is granted with $10 costs of motion. Section 3256, Code, makes certain disbursements like those taxed by plaintiff herein part of the costs which a party may tax. Section 3228 provides that in an action like this, upon a recovery of any amount less PEOPLE ex rel. GUERNSEY, Appellant, v. PIERSON et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 1, 1901.) Proceeding by the people of the state of New York, on the relation of E. Brayton Guernsey, against Henry B. Pierson and others. No opinion. Order (71 N. Y. Supp. 993) affirmed, with costs. RUMSEY, J., not sitting. PEOPLE ex rel. HART v. YORK et al. (Supreme Court, Appellate Division, First Department. October 18, 1901.) Proceeding by the people of the state of New York, on the relation of William A. Hart, against Bernard J. York and others, commissioners. No opinion. Application granted upon relator stipulating not to claim back salary. PEOPLE ex rel. McHARG et al., Appellants, . GAUS et al., Respondents. (Supreme Court, Appellate Division, Third Department. September 4, 1901.) Proceeding by the people of the state of New York, on the relation of Henry K. McHarg and others, executors, etc., of Joshua Howard King, deceased, against Charles H. Gaus and others, constituting the board of assessors of the city of Albany. No opinion. Order affirmed, without costs. PEOPLE ex rel. NEW YORK CENT. & H. R. R. CO. v. PRIEST et al. (Supreme Court, OctoAppellate Division, First Department. ber 18, 1901.) _ _Proceeding by the people of the state of New York, on the relation of the New York Central & Hudson River Railroad Company, against George E. Priest and others, comment granted. See 71 N. Y. Supp. 390. missioners. No opinion. Motion for resettle R. R. CO. v. PRIEST et al. (Supreme Court, PEOPLE ex rel. NEW YORK CENT. & H. OctoAppellate Division, First Department. state of New York, on the relation of the New ber 18, 1901.) Proceeding by the people of the York Central & Hudson River Railroad Company, against George E. Priest and others, commissioners. No opinion. Motion for leave to appeal to the court of appeals granted. Ques tions certified. than $50 (in this case $25), the successful party may not tax costs to exceed the amount recovered. The provisions together mean that he may not tax all costs, including disbursements, in excess of the amount provided. Mo-ents, v. FEITNER et al., Appellants. PEOPLE ex rel. WARD et al., Respondtion granted, with $10 costs. PEOPLE, Respondents, v. MILLER, Appellant. (Supreme Court, Appellate Division, Second Department. October 21, 1901.) Proceeding by the people of the state of New York against William F. Miller. No opinion. Order resettled and signed. PEOPLE, Appellants, v. MUTUAL BREWING CO., Respondent. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Proceeding by the people of the state of New York against the Mutual Brewing Company. No opinion. Reargument or dered for October 10, 1901. (Su preme Court, Appellate Division, Second Department. October 23, 1901.) Proceeding by the people of the state of New York,_on_the relation of Jessie L. Ward and Anna L. Judson, against Thomas L. Feitner and another, as commissioners, etc. No opinion. Motion granted and order resettled. PEOPLE ex rel. WATSON v. VOORHIS et al. (Supreme Court, Appellate Division, Second Department. October 23, 1901.) Proceeding by the people of the state of New York, on the relation of William Watson, against John R. Voorhis, president, and others, composing the board of elections of the city of New York. No opinion. Order modified and signed. and 106 New York State Reporter PEOPLE ex rel. ZOLLIKOFER, Appellant, | Publishing Company against Max Hallheimer. v. FEITNER et al., Respondents. (Supreme M. Hallheimer, for appellant. Wilbur & Hart, Court, Appellate Division, First Department. for respondent. No opinion. Judgment affirmJuly 9, 1901.) Proceeding by the people of the ed, with costs. state of New York, on the relation of Oscar Zollikofer, against Thos. L. Feitner and others. T. Sutro, for appellant. James M. Ward, for respondents. No opinion. Order (69 N. Y. Supp. 793) affirmed, with costs, on authority of People ex rel. Sutphen v. Feitner, 45 App. Div. 542, 61 N. Y. Supp. 432. PERCEVAL, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Charles Perceval against the Metropolitan Street Railway Company. H. A. Robinson (G. Glenn Worden, of counsel), for appellant. Spencer, Stickney & Ordway, for respondent. PER CURIAM. There is nothing in this case save a conflict of evidence; the preponderance being with the plaintiff. Judgment affirmed, with costs. In re PETCHESKY. (Supreme Court, Appellate Division, Second Department. July 25, 1901.) In the matter of the application of Morris Petchesky for a writ of mandamus, etc. No opinion. Order affirmed, with $10 costs and disbursements. PETROLEO, Respondent, SOCIETA REDUCI DELLI PATRIE, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Marco Petroleo against the Societa Reduci Delli Patrie. John J. Freschi, for appellant. Aaron Morris, for respondent. Νο opinion. Judgment affirmed, with costs. PETTERSON, Respondent, v. BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Action by John Petterson against the Brooklyn Heights Railroad Company. No opinion. Judgment and order unanimously affirmed, with costs. PLATT et al., Respondents, v. NEW YORK &S. B. RY. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 11, 1901.) Action by William O. Platt and another, trustees, etc., against the New York Sea Beach Railway Company. No opinion. Motion for reargument denied. Motion for Leave to appeal to the court of appeals granted. PLATT et al., Respondents, v. NEW YORK S. B. RY. CO. et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by William O. Platt and another, trustees, against the New York & Sea Beach Railway Company and another. No opinion. Order settled, question certified, and stay granted. PRESS PUB. CO., Respondent, v. HALLHEIMER, Appellant. (Supreme Court, Appelate Term. June, 1901.) Action by the Press PUGH, Respondent, v. O'ROURKE, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Paul B. Pugh against Thomas F. O'Rourke. E. M. Friend, for appellant. H. S. Mack, for respondent. PER CURIAM. It seems to us that the acceptance of the keys of the apartment and the immediate efforts of the plaintiff to relet the same on his own account were sufficient evidence of the plaintiff's acceptance of the surrender. The allowance of the full rent due was therefore error. The judgment below should have been limited to the sum of $80, due June 19, 1900. If the principal recovery shall be by stipulation reduced to that sum, with interest, the judgment in that event will be affirmed, without costs in this court. If not so reduced, the judgment will be reversed, and a new_trial ordered, with costs to abide the event. Judg ment affirmed, without costs, if reduced to $80. If not so reduced, judgment reversed, with costs to abide event. ent. (Supreme Court, Appellate Term. June, REED, Appellant, v. ERIE R. CO., Respond1901.) Action by Robert R. Reed against the Erie Railroad Company. R. R. Reed, for appellant. Stetson, Jennings & Russell, for respondent. PER CURIAM. The contract of transportation between the plaintiff and defendant was fully performed by the latter when the plaintiff's trunk reached its destination and he was surrendered his check to the station agent. advised of its arrival, whereupon he voluntarily Whatever may have been done thereafter in the way of procuring an expressman by the agent was for the plaintiff's convenience, and in no way imposed any liability upon the defendant. Judgment affirmed, with costs. REILLY, Respondent, v. CONNORS, Appellant. (Supreme Court, Appellate Division, Second Department. October 11, 1901.) Ac |