MEMORANDUM DECISIONS In the matter of William G. BROWN, as gen-1 (Supreme Court, Appellate Division, Second De- Charles G. BUSCAGLIA, respt., v. George H. Constance V. BRUGGEMANN, respondent, v. CHADEAYNE, applt. (Supreme Court, AppelAugust BRUGGEMANN, appellant. (Supreme late Division, Fourth Department. March 17, Court, Appellate Division, Second Department. 1920.) Judgment affirmed, with costs. All conJune 25, 1920.) Motion granted. In the matter of William P. BURR, Applt., v. John R. VOORHIS et al., as Custodians of Primary Records and as Com'rs of Election, etc., Respts. (Supreme Court, Appellate Division, First Department. May 28, 1920.) Order affirmed without costs, as a matter of law, and not in the exercise of discretion, upon the authority of Matter of Walsh v. Boyle, 179 App. Div. 582, 166 N. Y. Supp. 681, with leave to petitioner to appeal to the Court of Appeals. Order filed. Thomas BURTON, Joseph P. Cunningham, and Charles Lose, Jr., respondents, v. AMSTERDAM BUILDING COMPANY, Inc., appellant. cur. James CAIRNS; respt., v. George WELCH, impleaded, etc., applt. (Supreme Court, AppelMay 21, late Division, Fourth Department. 1920.) Judgment and order affirmed, with costs. All concur. John B. CALVERT, Respt., v. Walter J. SAL MON, impld., etc., Applt. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed. John M. CAMPANA, respondent, v. Marie MERTZ, appellant. (Supreme Court, AppelMay 21, late Division, Second Department. 1920.) Judgment and order of the County Court of Westchester County reversed, and new trial ordered in said court, with costs to abide the event, upon the ground that the finding that plaintiff was free from contributory negligence which the verdict imports was against the weight of the evidence, even as established by plaintiff's own testimony. Jenks, P. J., and Mills, Rich, Blackmar, and Jaycox, JJ., concur. Tommaso CARELLI, as Adm'r, etc.. Respt., V. Lillie S. STINER, Applt. (Supreme Court, Appellate Division, First Department. May 28, 1920.) Judgment and order affirmed, with costs. No opinion. Order filed. Tommaso CARELLI, as Adm'r, etc., v. Lillie S. STINER. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Motion for leave to appeal denied, with $10 costs, and motion for stay granted. Order filed. A. Mathilda CARLSON, Respt., v. Esther G. FOGELGREN et al., impld., etc., Applts. (Supreme Court, Appellate Division, First Department. May 21, 1920.) Judgment affirmed, with costs. No opinion. Order filed. Earl CARROLL, Respt., v. BRITISH & CO-, LONIAL KINEMATOGRAPH CO., Ltd., et al., Applts. (Supreme Court, Appellate Division, First Department. June 4, 1920.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed. William T. CARTER et al. v. GUARANTEE CO. OF NORTH AMERICA, impld., etc. (Supreme Court, Appellate Division, First Department. June 4, 1920.) Motion denied, with $10 costs. Order filed. Max CASHRIEL, Respt., v. Paul HIRSCH, impld., etc., Applt. (Supreme Court, Appellate Division, First Department. May 21, 1920.) Judgment and order affirmed, with costs. No opinion. Order filed. In the matter of the judicial settlement of the accounts of CENTRAL UNION TRUST COMPANY OF NEW YORK, as executor and trustee, etc., of John Hales, deceased, etc. (Supreme Court, Appellate Division, Second Department. May 28, 1920.) Reargument ordered, and hearing set for June 15th, of the following questions: Did the trust to the two daughters and their issue, as set out in paragraphs 3 and 4 of the will, offend against section 11 of the Personal Property Law of New York,1 because extending the trust beyond two lives in being? If so, can any of such dispositions stand? Liberty also given to discuss_further the construction of the will. Rich, Putnam, Blackmar, Kelly, and Jaycox, JJ., concur. CHARLES MEADS & CO., respondent, v. CITY OF NEW YORK, appellant. (Supreme Court, Appellate Division, Second Department, May 7, 1920.) Motion denied, without costs. Evelyn CHASE, respondent, v. Elizabeth A. BROWN, appellant. (Supreme Court, Apper late Division, Second Department. May 21, 1920.) Motion to dismiss appeal denied. CHEMUNG IRON & STEEL COMPANY; plaintiff-respondent, V. PAN-AMERICAN TRADING COMPANY, defendant-appellant. (Supreme Court, Appellate Term, First Department. June 3, 1920.) Appeal from Municipal Court, Borough of Manhattan, Third District. Action by the Chemung Iron & Steel Company against the Pan-American Trading Company. From a judgment for plaintiff, defendant appeals. Affirmed on condition. PER CURIAM. On the evidence defendant was entitled to recover the $100 collected by plaintiff on behalf of the defendant, while acting as defendant's agent in selling goods previously sold by plaintiff to defendant. The trial court having failed to pass upon defendant's counterclaim in this respect, or having erroneously de1 Consol. Laws, c. 41. cided in favor of plaintiff as to this item, if we are to assume, from the general judgment in favor of plaintiff for the full amount, that the court found in favor of plaintiff on all items contained in defendant's counterclaim, the judgment must be reversed, and a new trial ordered with $30 costs to appellant to abide event, unless plaintiff within 10 days files a written stipulation to reduce the amount of the judgment by $100, with an appropriate reduction in costs. In the event of such stipulation being so filed, the judgment will be affirmed, as modified, with $10 costs to respondent. Judgments in actions Nos. 2 and 3 affirmed, with $25 costs to respondent in one case. In the matter of the probate of the Last Will and Testament of Hannah CHISHOLM, deceased. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) If there is any merit in the suggestion of the learned counsel for appellant that the proceeding should be opened for the purpose of permitting him to should be addressed to the surrogate. So far as call another witness, application for that relief the "private conversation" to which the record refers is concerned, it appeared upon the argument that it related to a conversation between counsel for the respective parties, and appellant's counsel with the court, which was of no material consequence. Surrogate's Court of Nassau County affirmed, with costs. Jenks, P. J., and Mills, Rich, Putnam, and Blackmar, JJ., concur. Decree and order of the (182 N.Y.S.) worth J. Zittel and Henry C. Steul, whose terms of office expired on the 4th day of May, 1920. (Supreme Court, Appellate Division, Fourth Department. May 12, 1920.) The said Wadsworth J. Zittel and Henry C. Steul are appointed trustees, each for the term of six years, expiring on the 4th day of May, 1926. CITY OF NEW YORK, respondent, v. CHARLES STEEN, Inc., appellant. (Supreme Court, Appellate Division, Second Department. May 21, 1920.) Application granted. CLOVER CREST STOCK FARM, Inc., respt., v. FARMERS' RELIANCE MUTUAL FIRE INSURANCE CO., impleaded, etc., applt. (Supreme Court, Appellate Division, Fourth Department. March 17, 1920.) Motion granted, and appeal dismissed, with costs. Samuel COHEN et al., Applts., v. AMERICAN WOOLEN CO. OF NEW YORK, Respt. (Supreme Court, Appellate Division, First Department. June 11, 1920.) Judgment and order affirmed, with costs. No opinion. Order filed. Isaac J. COHEN, appellant, v. William M. BARRETT, as president of the Adams Express Company, respondent. (Supreme Court, Appellate Division, Second Department. 1920.) Defendant served the answer after the May 14. time to answer had expired, and plaintiff was justified in rejecting it. Defendant's remedy, if he has any, is by motion to open the default. The order is therefore reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Jenks, P. J., and Mills, Rich, Putnam, and Kelly, JJ., concur. See, also, 180 N. Y. Supp. 425. John W. B. COLEMAN, Respt., v. Charles C. LA ROSE, Applt. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Order reversed, with $10 costs and disbursements, and motion granted. No opinion. Order De-filed. CLOVER CREST STOCK FARMS, Inc., respt., v. FIDELITY CO-OPERATIVE FIRE INSURANCE CO., impleaded, etc., applt. (Supreme Court, Appellate Division, Fourth partment. March 17, 1920.) Motion granted, and appeal dismissed, with costs. Ora B. COATES, Applt., v. George A. ZABRISKIE, Respt. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Order affirmed, with $10 costs and disbursements, with leave to plaintiff to apply for another order for examination, in which she shall succinctly state the material facts which are denied by the answer, and which plaintiff would have to prove as part of her case to obtain an accounting. No opinion. Order filed. Joseph F. COFFEY, as Adm'r, etc., v. Katherine LEXOW. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Motion for stay pending appeal granted. Settle order on notice. In the matter of the probate of the last Will and Testament of Julius M. COHEN, deceased. Reba V. B. Cohen, executrix, appellant; William Baruch, special guardian, respondent. (Supreme Court, Appellate Division, Second Department. June 18, 1920.) Order of the Surrogate's Court of Westchester County granting allowance reversed, without costs, but with leave to the special guardian to renew the application upon proper papers showing what disposition was made of the objections to the probate of the will, filed on behalf of the infants, and the reasons for such disposition, and what, if any, provision was made for them. papers on which the order was granted are incomplete and insufficient to justify allowance in any amount. Jenks, P. J., and Mills, Blackmar, Kelly, and Jaycox, JJ., concur. See, also, 105 Misc. Rep. 724, 174 N. Y. Supp. 427. The COLUMBIA TRUST CO., Respt., v. SIERRA & SAN FRANCISCO POWER CO., Applt. (Supreme Court, Appellate Division, First Deed, with costs. partment. May 21, 1920.) Judgment affirmNo opinion. Order filed. COMMISSIONER OF PUBLIC CHARI TIES OF THE CITY OF NEW YORK, on OWENS, appellant. (Supreme Court, Appellate complaint of Rhoda Freed, respondent, v. Robert Division, Second Department. June 11, 1920.) Motion granted. George C. COMSTOCK, Applt., v. WAITT INVESTING CO., Inc., Respt. (Supreme Court, Appellate Division, First Department. June 11, 1920.) Judgment and order affirmed, with costs. No opinion. Order filed. Matter of Eva K. CONLON, for payment of an award. (Supreme Court, Appellate Division, First Department. May 21, 1920.) Notice of this application should be given to Archambeau, record owner of the Kirke judgment. Notice should also be given to J. N. Emley. The order should be settled on notice to all parties. Upon compliance with these requirements, the motion for a reference will be granted. Thomas CONNOLLY, appellant, v. Aaron NAUMBURG, respondent. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) Order unanimously affirmed, with costs. No opinion. (182 N.Y.S.) Daniel DANEHY, Applt., V. CANADA Nora Blatch DE FOREST, respondent, v. STEAMSHIP LINES, Ltd., Respt. (Supreme Lee DE FOREST, appellant. (Supreme Court, Court, Appellate Division, First Department. Appellate Division, Second Department. June May 28, 1920.) Judgment and order affirmed, 25, 1920.) Motion denied, without costs. with costs. No opinion. Order filed. Conrad P. DARLING, respondent, v. Thomas B. SCOTT, appellant. (Supreme Court, Appellate Division, Second Department. May 21, 1920.) Judgment and order reversed, and new trial granted, with costs to abide the event, upon the ground that it was error to the substantial prejudice of the defendant for the trial justice to take out of the case (as he did in effect) in his instructions to the jury, the variance in the length of the strainer from 20 feet to 50 feet as an item or element in plaintiff's performance of the contract. We think that at least the question whether or not the variance was material should, upon the evidence, have been submitted to the jury. Jenks, P. J., and Mills, Rich, Blackmar, and Jaycox, JJ., concur. Marius DAUERE and another, respondents, v. Carmine ALTIERI and another, appellants. (Supreme Court, Appellate Division, Second Department. June 25, 1920.), Motion denied, without costs, and stay vacated. Sophia DECHTEROW, appellant, v. AUSTIN NICHOLS COMPANY, Inc., and others, respondents. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) Order affirmed, with $10 costs and disbursements. No opinion. Jenks, P. J., and Mills, Rich, Putnam, and Blackmar, JJ., concur. Sophia DECHTEROW, appellant, v. AUSTIN NICHOLS COMPANY, Inc., et al., respondents. (Supreme Court, Appellate Division, Second Department. May 21, 1920.) Motion to dismiss appeal denied, on condition that appellant reprint the appeal papers to correspond to the order of the County Court, place the case on the June calendar, and be ready for argument when reached; otherwise, motion granted, with $10 costs. Charles F. DELANO, respondent, v. COUNTY OF SUFFOLK, appellant. (Supreme Court, Appellate Division, Second Department. May 28, 1920.) Motion granted, and the following question certified: Does the complaint state a cause of action? Angelina DE MARIA, an infant, by James De Maria, her guardian ad litem, respondent, v. KNICKERBÖCKER ICE COMPANY, appellant. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) Judgment and order unanimously affirmed, with costs. No opinion. DEN NORSKE AMERIEKALINJE ACTIESSELSKABET, Respt., v. SUN PRINTING & PUBLISHING ASSOCIATION and another, Applts. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Order affirmed, with $10 costs and disbursements, with leave to the defendants to withdraw their demurrer and to answer the complaint within 20 days from service of order, with notice of entry thereof, upon payment of said costs and $10 costs of motion at the Special Term. No opinion. Order filed. DE PEYSTER REALTY CO., Inc., landlord-appellant v. COHEN, tenant-respondent. (Supreme Court, Appellate Term, First Department. June 9, 1920.) Appeal from Municipal Court, Borough of Manhattan, Fifth District. Summary proceedings by the De Peyster Realty Company, incorporated, landlord, against Iser P. Cohen, tenant. From a final order awarding possession to the tenant, after trial without a jury, the landlord appeals. Reversed with directions. PER CURIAM. The learned trial justice found, on very ample evidence, that the proceeding was brought in good faith. He thus found that the landlord actually deemed the tenant's conduct objectionable, and that the proceeding was not instituted because of any Sophia DECHTEROW, appellant, v. AUS- other motive. We are in thorough accord with TIN NICHOLS COMPANY, Inc., and others, the court below in respect of these findings. respondents. (Supreme Court, Appellate Divi- Final order reversed, with $30 costs, and final sion, Second Department. June 11, 1920.) Ap-order directed, awarding possession to the landpeal dismissed, with costs. Jenks, P. J., and lord, with costs. Mills, Blackmar, Kelly, and Jaycox, JJ., con cur. Eliza L. DE CLARK, as Adm'x, v. FOREIGN PRODUCTS CO., Inc. (Supreme Court, Appellate Division, First Department. May 21, 1920.) Motion to dismiss appeal denied, with $10 costs. Order filed. Mary H. DEWEY, applt., v. Alva MORRIS, respt. (Supreme Court, Appellate Division, Fourth Department. March 10, 1920.) Order (108 Misc. Rep. 407, 178 N. Y. Supp. 372) affirmed, with $10 costs and disbursements. See rule 23, General Rules of Practice. cur; Lambert, J., not sitting. All con |