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tion by Elmore T. Reilly against William Connors. No opinion. Judgment of the municipal court affirmed by default, with costs.

REIMERS, Appellant, v. SCHMITT, Respondent. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by Bernhardt N. Reimers against Christina Schmitt. No opinion. Application to substitute trustee in bankruptcy granted, without costs.

RICHARDSON, Appellant, v. BORRILL, Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by Lulu Richardson against Albert Borrill. G. A. C. Barnett, for appelLant. William Henry Knox, for respondent.

RIKER, Respondent, v. NEW YORK, O. & W. RY. CO., Appellant. (Supreme Court, Ap pellate Division, Second Department. October 23, 1901.) Action by Henry Riker against the New York, Ontario & Western Railway Company. No opinion. Motion denied.

ROBERSON v. ROCHESTER FOLDING BOX CO. et al. (Supreme Court, Appellate Division, Fourth Department. October 1, 1901.) Action by Abigail M. Roberson, an infant, against Rochester Folding Box Company and another. No opinion. Motion for leave to appeal to the court of appeals granted. Questions certified to the court of appeals filed with the clerk.

ROBERTS, Respondent, v. BROOKLYN HEIGHTS R. CO.. Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Action by Beatrice Roberts against the Brooklyn Heights Railroad Company.

PER CURIAM. A judgment in favor of the plaintiff was reversed by this court in June, 1900. 32 Misc. Rep. 718, 65 N. Y. Supp. 1144. The evidence upon the present trial is substantially the same that was presented then, except that on this trial the plaintiff herself did not testify. The action is in replevin for certain household furniture claimed to have been sold by plaintiff's mother to defendant, and of which plaintiff asserts ownership. The evidence as to her ownership is very hazy and most unsatisfactory. Even if some of it belonged to her, she allowed her mother to exercise dominion over it, and can scarcely have been ignorant of the transaction between her mother and the defendant. It was attempted to be shown that the mother expressly exempted the goods from the sale to the defendant, but the documentary evidence in the case made strongly against this contention, and the efforts of the witness to explain away her receipts and bill of sale were ROCHESTER BAR ASS'N v. MONROE. not convincing. On the whole, we are of opinion that the case was rightly decided. Judg-(Supreme Court, Appellate Division, Fourth ment affirmed with costs.

PER CURIAM. Judgment and order reversed, and new trial granted, costs to abide the event, unless within 20 days plaintiff stipulate to reduce recovery of damages to the sum of $5,000 and extra allowance proportionately, in which case the judgment, as modified, is affirmed, without costs of this appeal to either party.

GOODRICH, P. J., and WOODWARD and SEWELL, JJ., concur. HIRSCHBERG and JENKS, JJ., vote for aflirmauce.

Department. October 1, 1901.) In the matter of the charges of the Rochester Bar Association against Charles Wilbur Monroe. No opinthat the defendant be removed from the office of attorney and counselor at law.

RICHTER v. NIMMO. (Supreme Court, p-ion. Report of referee confirmed. pellate Divisior. Second Department. October 11, 1901.) Action by Oscar Richter, trustee, etc., against Andrew Nimmo. No opinion. Motion for reargument denied. Motion to resettle order granted, by inserting leave to the defendant to answer on payment of $20 costs within 10 days.

RIDER, Respondent, SYRACUSE RAPID TRANSIT RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 8 1901.) Action by Jane Rider, as administratrix, etc., against the Syracuse Rapid Transit Railway Company. No opinion. Judgment and order affirmed, with costs.

RUMSEY, J., not sitting.

RIDER, Respondent, v. SYRACUSE RAPID TRANSIT RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 18, 1901.) Action by Jane Rider, as administratrix, etc., against the Syracuse Rapid Transit Railway Company. No opinion. Motion for leave to appeal to the court of appeals granted; this court certifying that the case involves a question of law which requires the determination of that court.

Ordered

ROCHMOVITZ, Respondent, v. SEWARD, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Henry Rochmovitz against Perceval H. Seward. M. Monfried, for appellant. D. W. Rockmore, for respondent.

PER CURIAM. It would seem unfair to allow the defendant to amend and increase the original specifications he had submitted to plaintiff, and which he had accepted in writing. That end should have been sought in a more mutual manner. Judgment affirmed, with costs.

ROQUETTE, Respondent, v. TOTTEN, Appellant. (Supreme Court. Appellate Term. June, 1901.) Action by William F. B. Roquette against William H. Totten. John J. Buckley, for appellant. Abraham B. Schleimer, for respondent. No opinion. Judgment affirmed, with costs.

ROSALER, Appellant, v. GREENBERG, Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by Joseph Rosaler against

and 106 New York State Reporter

Frank Greenberg. Bernhard Ginsberg, for appellant. Abraham B. Schleimer, for respondent. No opinion. Judgment affirmed, with costs.

ROSCOE LUMBER CO., Respondent, v. STEINWAY et al., Appellants. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by Roscoe Lumber Company against Steinway & Sons, impleaded with others. No opinion. Judgment affirmed on law and facts, with costs.

ROSEN, Respondent, v. SILVERMAN, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Frank E. Rosen against Jacob Silverman. C. S. Rosenthal, for appellant. A. I. Spiro, for respondent.

PER CURIAM. Granting the power of the court below to grant the motion of the plaintiff's counsel, after resting his case and over the defendant's objection and exception, to change the cause of action from a sale and delivery of merchandise to one for damages for the breach of a contract for the sale and delivery of personalty, that will not uphold a judgment given for the purchase price. Such measure of damages is manifestly inaccurate, enabling the plaintiff to recover the price and retain the property. The correct measure of damage is the difference between the contract price and the value of the property at the time of the breach. Judgment reversed, and new trial ordered, with costs to abide the event.

ROYSTONE, Respondent, v. BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Action by Mary Roystone, administratrix, etc., of Frank P. Roystone, deceased, against the Brooklyn Heights Railroad Company. No opinion. Judgment and order unanimously affirmed, with costs, on authority of Weiler v. Railway Co., 53 Hun, 372, 6 N. Y. Supp. 320, affirmed in 127 N. Y. 669, 28 N. E. 255.

RUSH, Respondent, v. KLEIN, Appellant. (City Court of New York. General Term. May, 1901.) Action by Thomas E. Rush against Mary Klein. Menken Bros. (Mortimer M. Menken, of counsel), for appellant. J. Harry Hull (Chas. W. Ridgway, of counsel), for respondent.

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RYDER, Respondent, v. DUFFY, Appellant. (City Court of New York, General Term. May, 1901.) Action by George W. Ryder against Patrick Duffy. Benj. G. Paskusz, for appellant. Hays & Greenbaum (Maxwell Davidson, of counsel), for respondent.

HASCALL, J. It appears to us, from a careful reading of all the testimony. that this appeal should succeed. There was no sufficient proof of ownership in Horan at the time of Ryder's alleged acquisition of the property, or prior thereto; no sufficient proof of demand: no adequate or proper proof of value; no evidence of the requisites needful to maintain the alleged detention or conversion, to go to the jury. But what of competent evidence there was on both sides points to and confirms substantiation of the allegations of the defendant. Plaintiff did not successfully sustain the burden of proof, and we think it was error of the learned court below to refuse defendant's motion for nonsuit. Plaintiff's remedy would seem to be against Horan alone. Judgment should be reversed, and the complaint dismissed, with costs of appeal and of action to the appellant. Judgment reversed, and complaint dismissed, with costs to appellant.

CONLAN and O'DWYER, JJ., concur.

SAFFIER, Appellant, v. MOTCHKOL, ReSecond Department. October 18, 1901.) Acspondent. (Supreme Court, Appellate Division, tion by Sam Saffier against Yon Motchkol. From a judgment in favor of defendant, plaintiff appeals. Reversed. Abraham B. Schleimer, for appellant.

PER CURIAM. This judgment was entered HASCALL, J. The appellant, by the answer upon a written stipulation, signed by the deinterposed, is in position to contest each item fendant's attorney, that, in consideration of the of the plaintiff's claim, thus bringing this case plaintiff refraining from issuing execution one within Spence v. Simis, 137 N. Y. 616, 33 N. week, the answer should be withdrawn and E. 554; and we therefore decide that the or- claim demanded. The magistrate held that the judgment should be taken against him for the der appealed from was properly made. Order plaintiff must nevertheless prove his case. Asaffirmed, with costs and disbursements to re-suming this rule to be correct, we are of opinspondent. Order affirmed, with costs to respondent.

CONLAN and O'DWYER, JJ., concur.

ion that the case was proven. There is some obscurity as to the time when the demands for return of the property were made, but it

is clear that such a demand was made before the action was commenced, and we cannot say that it has been established that no demand was made before default. The judgment should therefore be reversed, and under the circumstances, in view of the written stipulation for judgment, judgment is ordered for the plaintiff, with costs and costs of the appeal.

SANDS, Appellant, V. CITY OF NEW YORK. Respondent. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Action by Edwin Sands against the City of New York. No opinion. Judgment affirmed, with costs.

· GOODRICH, P. J., and WOODWARD, HIRSCHBERG, JENKS, and SEWELL, JJ.,

concur.

In re SCHENECTADY RY. CO. (Supreme Court, Appellate Division, Third Department. September 18, 1901.) In the matter of the application of the Schenectady Railway Company.

PER CURIAM. Ordered that the following be appointed commissioners in this proceeding, to wit: John Sanderson, of Catskill, N. Y., W. Frank Holsapple, of Hudson, N. Y., and William W. Worden, of Saratoga Springs, N. Y. All legal questions as to right of the petitioner to construct its proposed road be, and the same are hereby, reversed until the filing of the report of such commissioners.

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V.

SCHOEL

SCHOELLER, Respondent, LER. Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Hattie C. Schoeller against William P Schoeller. H. Levor, for appellant. T. W. McKnight, for respondent.

PER CURIAM. It plainly appears that there was a verbal agreement made January 11, 1900, for a sale by the defendant to the plaintiff of his bakery for the sum of $500; the defendant and his brother to bind themselves not to engage in like business within a limited territory for one year. The plaintiff then paid $50 on the purchase price, and was to pay the balance on the Saturday following,

which she was ready and willing then to do; but the defendant, without legal reason, declined to perform. These facts are found by the verdict of the jury. The exceptions to the allowance by them of the items beyond the payment of $50 are not well taken, because they were properly incurred by plaintiff in preparing to perform her part of the undertaking, except the lawyer's fee of $10, for which the defendant was not to be held liable in any event. The judgment will be affirmed, if reduced by the sum of $10. If not, it will be reversed, and a new trial ordered, with costs to abide the event. Judgment affirmed, if reduced by $10. If not, judgment reversed, and new trial ordered, with costs to abide event.

SCHULTZ, Respondent, v. BERGER et al., Appellants. (Supreme Court, Appellate Term. June, 1901.) Action by David Schultz against Man Berger and others. H. Gottlieb, for appellants. A. B. Jaworower, for respondent. No opinion. Judgment affirmed, with costs.

SCHUMAN, Appellant, V. BROOKLYN HEIGHTS R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. October 14, 1901.) Action by Lawrence Schuman, by Jacob H. Potter, his guardian ad litem, against the Brooklyn Heights Railroad Company. No opinion. Order (71 N. Y. Supp. 1095) affirmed on argument, with $10 costs and disbursements.

SCHWARTZ, Appellant, v. MYLIUS, Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by Samuel Schwartz against William Mylius. Martin Wechsler, for appellant. Wendel & Robeson. for respondent.

PER CURIAM. Action for conversion. The defendant was the owner and landlord of premises in which one Molnar conducted a restaurant. Moluar was in default for rent, very early hour in the morning, removed the and, on June 19th he and the plaintiff, at a greater portion of the stock and fixtures, leaving the store in charge of a porter, who a few hours later delivered the key to the defendant. There were left in the saloon some fixtures and furniture, two barrels of beer, and a small three or four dollars. The plaintiff had, on desk, worth, according to the testimony, about May 31st, received a bill of sale from Molnar, covering, among other things, the writing desk and "all beer, liquors, brandies, and wines in bottles and casks." This bill of sale had been kept secret at least until June 19th, and the goods covered thereby had been left in possession of Molnar, the vendor. Molnar had meanwhile mortgaged the fixtures and furniture to one Feldman, by a chattel mortgage duly filed, conditioned to secure the payment of the debt on demand. After the saloon had been surrendered to the landlord, Schwartz called upon him and said he wished to take the goods

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away. The testimony is conflicting as to whether Schwartz then notified the defendant that he made this demand as owner, or whether he exhibited his bill of sale. Feldman, the mortgagee, subsequently took possession of so much as remained of the furniture and fixtures covered by his mortgage. This he had a right to do, and the plaintiff is not entitled to a judgment for their return or value. As to the two barrels of beer, there is no evidence, and no presumption that they were in the saloon when the bill of sale was made on May 31st. If they were not, they did not pass to the plaintiff under the bill of sale. As the saloon had been in active business between May 31st and June 19th, there is no_presumption that the beer found there on June 19th had been there 19 days previous. As to the desk, which is all that remains, and apparently all that the appellant really thinks he is entitled to judgment for, the evidence is not satisfactory that the plaintiff made a proper demand upon defendant for it. As it came into defendant's possession lawfully, being in the saloon when possession was surrendered by its apparent owner, a proper demand was necessary before an action for conversion would lie. Judgment affirmed, with costs.

SEAMAN v. CLARKE et al. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by Albert W. Seaman, as trustee of the estate of Eliza Eagle, deceased, against Gilmore Clarke and another, as executors, etc. No opinion. Amount of security required to stay execution fixed at $20,000.

SEELIG, Respondent, v. WEISS, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Frederick H. Seelig against Abraham Weiss. W. R. Adams, for appellant. L. W. Harburger, for respondent. No opinion. Judgment affirmed, with costs.

SHARO, Respondent, V. BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 18, 1901.) Action by Paul Sharo, as administrator, etc., of Paul Sharo, Jr., deceased, against the Brooklyn Heights Railroad Company. No opinion. Judgment and order unanimously affirmed, with costs.

V.

FIDELITY

SHELDON, Appellant, TRUST & GUARANTY CO. OF BUFFALO, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 1, 1901.) Action by Emma J. Sheldon against the Fidelity Trust & Guaranty Company of Buffalo. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion granted, without costs, on opinion of WILLIAMS, J., in case of same title reported in 71 N. Y. Supp. 65. All concur. except SPRING, J., who dissents, and RUMSEY, J., not sitting.

SHELDON, Appellant, V. FIDELITY TRUST & GÚARÁNTY CO. OF BUFFALO, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 1, 1901) Action by Emma J. Sheldon against the Fidelity Trust & Guaranty Company of Buffalo. PER CURIAM. Order reversed, with $10 without costs, on opinion of WILLIAMS, J., costs and disbursements, and motion granted, in case of same title reported in 71 N. Y. Supp. sents, and RUMSEY, J., not sitting. All concur, except SPRING, J., who dis

65.

SHERLOCK, Respondent, v. SHERLOCK, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 8, 1901.) Action by Patrick Sherlock against William Sherlock.

sider the appeal in this case upon the record PER CURIAM. This court declines to conpresented, the same being incomplete under from a judgment, the papers in the record shall rule 41, which provides that, upon an appeal notice of appeal and judgment roll in the court be either certified or stipulated copies of the below. There is no copy of the judgment roll in the county court in the record. That judgment roll must contain, when printed, a return by the municipal court of the proceedings had in that court, together with its judgment. There is no copy of the judgment of the municipal court contained in the record, and no return whatever from that court.

SILVER, Respondent, v. ELIAS, Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Marks Silver against Joseph Elias. Shafer & Levin, for appellant. Ralph Nathan, for respondent.

PER CURIAM. A former judgment in favor of the plaintiff was set aside by the appellate term because against the weight of evidence. If the evidence on the present trial had been the same as that on the former, we might adopt a like course. There is, however, an important difference. It was testified by an apparently disinterested witness that the note in suit was brought to Kaplan, the payee, by one Cohen, the manager of defendant's business. On the former trial Cohen was called, and denied that he had ever seen the note, that it was given him by defendant, or was delivered to Kaplan. On the present trial Cohen was not called, and consequently the evidence of the delivery of the note to Kaplan was uncontradicted. We have examined the exceptions, and find none that call for a reversal, and under all the circumstances are not disposed to interfere with the second judg ment. Judgment affirmed, with costs.

SKINNER, Appellant, v. CONEY ISLAND & B. R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. Oc tober 4, 1901.) Action by Catharine Skinner,

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make a prima facie case, and the case should therefore have been heard on the merits. The evidence tends to show that the car stopped on plaintiff's signal, and was started again without affording a reasonable opportunity for him to board it. Judgment reversed, and new trial ordered, with costs to abide event.

SOSOFSKY, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, Appellate Term. June, 1901.) Action by Meyer Sosofsky against the Metropolitan Street Railway Company. H. A. Robinson (G. Glenn Worden, of counsel), for appellant. A. H. Sarasohn, for respondent.

PER CURIAM. The plaintiff's ice wagon was compelled, in consequence of obstructions in the street, to go upon the defendant's track. A car coming up behind, the driver whistled, and plaintiff's driver immediately started to drive off the track, so as to allow the car to Before the wagon had gone clear the pass. car collided with it and caused the accident. This was all in plain daylight. It was attempted to be shown that there was a scale bar projecting six or seven inches behind the ice wagon, and that it was this that the car caught. The driver testified that he saw it plainly. While it may have been contrary to the ordinances to have the scale where it was, such violation did not justify the driver's neg ligence in catching it. The justice submitted the case to the jury in a charge which was even more favorable to defendant than it had a right to ask. Judgment affirmed, with costs.

SMITH, Appellant, v. MCELWEE, Re pondent. (Supreme Court, Appellate Term. June, 1901.) Action by Edwin R. Smith gainst Alexander McElwee. Richard J. Morison, for appellant. Nichols & Bacon (George Edwin Joseph, of counsel), for respondent. PER CURIAM. The one issue in the case was whether or not the goods, for the price of which the action is brought, were sold to he defendant, or to a corporation known as F. D. Anthony Company." It appears that here were two concerns having similar names, -one a firm known as "F. D. Anthony & Co.," and the other a corporation known as F. D. Anthony Company." There was no laim that the goods had been sold to the irm, and consequently the question whether he plaintiff had refused to give credit to the irm of F. D. Anthony & Co. was irrelevant. If the inquiry had been whether, previous to the sales involved in this action, he had refused credit to the corporation, a different question would have been presented. The question whether the corporation was solvent was irrelevant, because, unless knowledge or notice of its insolvency was brought home to plaintiff before or at the time the sales were made, the fact could throw no light upon the question as to whom he intended to make the sale. The certificate of incorporation was at the most immaterial, and its admission cannot have hurt plaintiff, since the fact of the incorporation of the company had already been testified to by one of its officers. The verdict was justified by the evidence, and the judg-peal. ment should not be disturbed. Judgment (69 N. Y. Supp. 751) affirmed, with costs.

SMITH, Appellant, v. WILCOX, Respondent. (Supreme Court, Appellate Division, Second Department. October 4, 1901.) Action by Andrew H. Smith against Horatio R. Wilcox. No opinion. Judgment affirmed, with costs.

SOLOMON, Appellant, v. THIRD AVE. R. CO., Respondent. (Supreme Court, Appellate Term. June, 1901.) Action by David Solomon against the Third Avenue Railroad Company. A. H. Sarasohn, for appellant. Hoadly, Lauterbach & Johnson, for respondent.

PER CURIAM. The testimony of the. plaintiff and his one witness was sufficient to

SPROAT, Respondent, V. BROOKLYN HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 24, 1901.) Action by William Sproat, an infant, by Elizabeth_Stapleton, his guardian ad litem, against the Brooklyn Heights Railroad Company. No opinion. Judgment reversed on the ground that the damages are excessive, and new trial granted on condition that the defendant pay to the plaintiff within 20 days the costs of the trial and of this ap

GOODRICH, P. J., and WOODWARD, JENKS, and SEWELL, JJ., concur. HIRSCHBERG, J., dissents.

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