John S. STANLEY, Gorton James, and J. M. Richardson Lyeth, appellants, v. Frank S. GANNON, respondent. (Supreme Court, Appellate Division, Second Department. May 7, 1920.) Judgment (109 Misc. Rep. 611, 180 N. Y. Supp. 602) unanimously affirmed, upon the opinion of Mr. Justice Aspinall at Special Term, with costs.

John S. STANLEY and others, appellants, v. Frank S. GANNON, respondent. (Supreme Court, Appellate Division, Second Department. June 11, 1920.) Motion denied.

In the matter of the application of the STATE COMMISSION OF PRISONS, with regard to the construction, management, and alfairs of NASSAU COUNTY JAIL. (Supreme Court, Appellate Division, Second Department. June 25, 1920.) Upon consideration of the letter received from the Deputy Attorney General, the application to withdraw the brief submitted is granted, and a new brief may be filed within five days.

where the venue should be changed for the convenience of witnesses, most of whom, it appears, are residents of the county of New York. The order is therefore reversed, with $10 costs and disbursements, and the motion to change the venue from Dutchess county to New York county is granted, with $10 costs. Jenks, P. J., and Mills, Rich, Putnam, and Kelly, JJ., concur.

STEVENS and one, Respts. (Supreme Court, Joseph STERNBERG, Applt., v. Charles Appellate Division, Fourth Department. May 12, 1920.) Order affirmed, with $10 costs and disbursements. All concur.

Sophie STEVOLD, appellant, v. Henry C. BERNHEIM, respondent. (Supreme Court, Appellate Division, Second Department. June 11, 1920.) Motion to dismiss appeal granted, without costs.

Charles H. STODDARD, appellant, v. Ellen Somerville EDWARDS, respondent. (Supreme Henry C. STAUBITZ, applt., v. INTERNA- Court, Appellate Division, Second Department. TIONAL RAILWAY CO., respt. (Supreme May 7, 1920.) Motion to open default granted, Court, Appellate Division, Fourth Department. upon payment of $35 within 10 days; otherMarch 17, 1920.) Judgment and order affirm-wise, motion denied, with $10 costs. ed, with costs. All concur.

Aaron STEIN, appellant, v. Richard RAVENHALL, respondent. (Supreme Court, Appellate Division, Second Department. May 14, 1920.) The complaint sufficiently alleges the public right to pass over and along the beach in front of defendant's premises between high and low water mark, which is recognized as a natural public highway. People v. Steeplechase Park Co., 218 N. Y. 459, 113 N. E. 521, Ann. Cas. 1918B, 1099. If in fact defendant

has title to the land in question, the burden is upon him to plead and prove it as matter of defense. The order is therefore reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. Jenks, P. J., and Mills, Rich, Putnam, and Kelly, JJ., concur.

Charles STEMBERG, respondent, v. Lladyslava STEMBERG, appellant. (Supreme Court, Appellate Division, Second Department. May 14, 1920.) Judgment unanimously affirmed, with costs. No opinion.

Lulu STOTZ, as adm'x, etc., respt., v. DIRECTOR GENERAL OF RAILROADS and N. Y. Central R. R. Co., applt. (Supreme Court, Appellate Division, Fourth DepartMark R. SPELMAN, respondent, v. WEST- ment. May 21, 1920.) Appeal dismissed, unINGHOUSE, CHURCH, KERR & COM-less appellant shall file and serve printed briefs PANY, Inc., appellant. (Supreme Court, Ap- within 60 days. pellate Division, Second Department. May 14, 1920.) The rule respecting a change of venue from a rural county to the county of New York is not inflexible. Broderick v. De Mesa, 178 App. Div. 669, 165 N. Y. Supp. 809. We are of opinion that this case is one

In the matter of the application of Charles STRAUSS, et al., constituting the Board of Water Supply of the City of New York, to acquire real estate, etc., in the towns of Mt.

Judgment reversed, and new trial granted, with costs to abide the event, upon the ground that plaintiff's evidence did tend to establish negligence upon the part of defendant's chauffeur in operating his automobile. Jenks, P. J., and Mills, Rich, Blackmar, and Jaycox, JJ., concur.

Anna Linoci TAMBURRANO, respt., v. Fon- | Division, Second Department. May 14, 1920.) do Unico MORTUARIO et al., applts. (Supreme Court, Appellate Division, Fourth Department. March 17, 1920.) Judgment and order reversed, with costs, and complaint dismissed, with costs. Held, that the failure of plaintiff's intestate to pay the monthly dues for three months, as required by defendant's bylaws, resulted in the loss of all his rights to benefits. All concur.

Luther W. TARBOX, as executor, etc., respt. v. Richard H. THOMPSON and one, applts. (Supreme Court, Appellate Division, Fourth Department. March 3, 1920.) Judgment and order affirmed, with costs. All concur.

Fielding L. TAYLOR v. F. B. STEARNS CO. OF OHIO. (Supreme Court, Appellate Division, First Department. June 4, 1920.) Motion denied, with $10 costs. Order filed.

Walter F. TAYLOR v. F. B. STEARNS CO. OF OHIO. (Supreme Court, Appellate Division, First Department. June 4, 1920.) Motion denied, with $10 costs. Order filed.

Arthur W. TEELE v. Israel KATZ, sued as Isaac Katz. (Supreme Court, Appellate Division, First Department. May 21, 1920.) Motion to dismiss appeal granted, with $10 costs. Order filed.

John Henry TEMPELMAN, Applt., v. Herbert A. O'BRIEN, Respt. (Supreme Court, Appellate Division, First Department, June 18, 1920.) Judgment and order affirmed, with costs. No opinion. Order filed.

William THORNTON et al., as Trustees, etc., Respts., v. NORTHERN BANK OF NEW YORK, Applt. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Judgment affirmed, with costs. No opinion. Order filed.

TOWN OF NORTH HEMPSTEAD, respondent, v. PUBLIC SERVICE CORPORATION OF LONG ISLAND, appellant. (Supreme Court, Appellate Division, Second Department. May 21, 1920.) Judgment affirmed, with costs, upon the opinion of Mr. Justice Aspinall at Special Term. 107 Misc. Rep. 19, 176 N. Y. Supp. 621. Jenks, P. J., and Mills, Rich, Kelly, and Jaycox, JJ., concur.

Charles W. TERRY, as trustee, etc., respt., v. ROSS HEATER & MFG. CO., applt. (Action No. 1.) (Supreme Court, Appellate Division, Fourth Department. March 3, 1920.) Judgment affirmed, with costs. All concur. See, also, 180 App. Div. 714, 167 N. Y. Supp. lant, v. PUBLIC SERVICE CORPORATION 747.

Charles W. TERRY, as trustee, etc., respt., v. ROSS HEATER & MFG. Co. and one, applts. (Action No. 2.) (Supreme Court, Appellate Division, Fourth Department. March 3, 1920.) Judgment affirmed, with costs. All concur. See, also, 180 App. Div. 714, 167 N. Y. Supp. 747.

TOWN OF NORTH HEMPSTEAD, appel

OF LONG ISLAND, respondent. (Action No. 4.) (Supreme Court, Appellate Division, Second Department. June 4, 1920.) Motion to revive and continue injunction granted. on condition that appellant perfect the appeal, place the cause on the calendar, and be ready for argument on Tuesday, June 15, 1920.

TRADERS' NATIONAL BANK OF ROCHESTER, respt., v. Catherine M. AMSDEN, imRobert M. THOMSON, as executor, etc., of pleaded, etc., applt. (Supreme Court, AppelRebecca M. Thomson, deceased, appellant, v. late Division, Fourth Department. May 21, John G. GASTEIGER and Eugene H. Law-1920.) Order affirmed, with $10 costs and dislor, respondents. (Supreme Court, Appellate bursements. All concur.

(182 N.Y.S.)

All

Eva TRAPHAGEN, respt., v. INTERNA- UNITED STATES FIDELITY & GUARANTIONAL RAILWAY CO., applt. (Supreme TY CO., respt., v. Charles S. OWEN, as sheriff, Court, Appellate Division, Fourth Department. etc., applt. (Supreme Court, Appellate DiviMarch 17, 1920.) Judgment and order re- sion, Fourth Department. March 3, 1920.) versed, and new trial granted, with costs to ap- Judgment and order affirmed, with costs. pellant to abide event, upon the ground that concur. the verdict is against the weight of evidence upon the question of damages and is excessive, unless the plaintiff shall, within 10 days, stipulate to reduce the verdict to the sum of $4,000, as of the date of the rendition thereof, in which event the judgment is modified accordingly, and, as so modified, is, together with the order, affirmed, without costs of this appeal to either party. All concur.

Robertus F. TROY, respt., v. RUTLAND RAILROAD COMPANY, applt. (Supreme Court, Appellate Division, Third Department. May 14, 1920.) Decision amended nunc pro tune as of March 3, 1920, so as to read as follows: Judgment and orders affirmed, with costs. All concur, except Woodward and Henry T. Kellogg, JJ., who dissent, on the ground that as matter of law the plaintiff was guilty of contributory negligence. Order entered in Rensselaer county clerk's office March 5, 1920, amended nunc pro tune as of March 4, 1920, and the judgment on said order entered in said clerk's office March 5, 1920, amended nunc pro tunc as of March 4, 1920, to conform with amended decision. See. also, 186 App. Div. 196, 173 N. Y. Supp. 895.

William J. TUBBIOLO, respondent, v. Anne S. WATKINS, appellant. (Supreme Court, Appellate Division, Second Department, May 21, 1920.) Order reversed, with $10 costs and disbursements, and motion to vacate granted, with $10 costs, upon the ground that the moving affidavit failed to give the residence of the defendant as required by subdivision 1 of section 872 of the Code of Civil Procedure, and that defendant's objection upon that ground should have been sustained at Special Term. Jenks, P. J., and Mills, Rich, Putnam, and Kelly, JJ.,

concur.

Francesca TURRISI, Respt., v. Alphonso TURRISI, Applt. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed.

Edith M. TUTTLE et al., suing, etc., Respts., v. WESTERN UNION TELEGRAPH CO. and another, Applts. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed.

UNITED STATES MORTGAGE & TRUST CO., Respt., v. LIBERTY NATIONAL BANK, Applt. (Supreme Court, Appellate Division, First Department. June 4, 1920.) Order reversed, with $10 costs and disbursements, and motion granted, to the extent of modifying the order for the examination before trial by limiting the examination to that of Louis W. Knowles, the assistant cashier of the defendant. The date for the examination to proceed to be fixed in the order. No opinion. Settle order on notice.

UNIVERSAL FILM MANUFACTURING CO., Applt., v. RAMMS, Inc., impld., etc., Respt. (Supreme Court, Appellate Division, First Department. May 21, 1920.) Order affirmed, with $10 costs and disbursements. No opinion. Settle order on notice. The date for the examination to proceed to be fixed in the order.

Oscar UNZ v. Lillian E. FITZGERALD. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Motion denied, with $10 costs. Defendant can obtain a stay upon giving an undertaking to secure the judgment. Order filed.

UVALDE ASPHALT PAVING CO. v. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. May 21, 1920.) Motion to dismiss appeal denied. Order filed.

UVALDE ASPHALT PAVING CO. v. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. June 4, 1920.) Motion granted, and appellant's time to serve and file brief extended for 60 days from June 1, 1920. Order filed.

Robert A. VAN CLEAVE, appellant, v. William C. DEMOREST et al., respondents. (Supreme Court, Appellate Division, Second Department. May 21, 1920.) Judgment reversed, and new trial granted, with costs to abide the event, upon the ground that this court has already decided that the complaint does state facts sufficient to constitute a cause of action (see 186 App. Div. 906, 172 N. Y. Supp. 923) and that the trial court should have regarded that decision as conclusive upon it, and as constituting the law of the case. Jenks, P. J., and Mills, Rich, Putnam, and Blackmar, JJ., concur. See, also, 174 App. Div. 928, 160 N. Y. Supp. 923.

Arthur L. VAN ETTEN et al. v. Charles M. HIRSCHFELDER et al. (Supreme Court, Appellate Division, Fourth Department. March 17, 1920.) Motion granted, unless defendants shall file and serve printed papers and briefs by April 12, and be ready for argument at the opening of the May term.

Arthur L. VAN ETTEN and one v. Charles M. HIRSCHFELDER et al. (Supreme Court, Appellate Division, Fourth Department, May 19, 1920.) Defendants' exceptions overruled, motion for new trial denied, with costs, and judgment directed for the plaintiffs upon the verdict, with costs. All concur; Clark, J., not sitting.

WARREN GORDON LIGHTERAGE, Inc., respondent, v. William A. JAMISON and others, doing business under the name of Arbuckle Bros., appellants, and Frank A. Lawrence, defendant. (Supreme Court, Appellate Division, Second Department. June 4, 1920.) Judgment and order unanimously affirmed, with costs. No opinion.

WARREN REFINING CHEMICAL CO., applt., v. James O. SEBRING, respt. (Supreme Court, Appellate Division, Fourth Department. March 3, 1920.) Appeal dismissed, unless appellant shall file and serve printed papers and briefs and pay to respondent $10 by March 5th and be ready for argument on March 15th.

In the Matter of the INCORPORATION OF William K. WATERMAN, appellant, v. DaTHE VILLAGE OF LAFARGEVILLE, N. Y. vid KRAMER, respondent. (Supreme Court, (Supreme Court, Appellate Division, Fourth Appellate Division, Second Department. May Department. May 21, 1920.) Order affirm-21, 1920.) Order setting aside verdict_reversed, without costs. All concur.

In the matter of proceedings supplementary to execution. The VOGUE COMPANY, respondent, v. EMILE FORQUIGNON, Inc., appellant. (Supreme Court, Appellate Division, Second Department. June 4, 1920.) Order affirmed, with $10 costs and disbursements. No opinion. Jenks, P. J., and Mills, Putnam, Kelly, and Jaycox, JJ., concur.

In the matter of proceedings supplementary to execution. VOGUE COMPANY, respondent, v. EMILE FORQUIGNON, Inc., appellant. (Supreme Court, Appellate Division, Second Department. June 18, 1920.) Motion for leave to appeal to the Court of Appeals denied, and stay vacated.

Theodore F. VON DORN et al. v. Roscoe CRARY, impld., etc. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Motion to dismiss appeal granted, with $10 costs. Order filed.

Lina VON KAMP, substituted in place of Fred Von Kamp, deceased, appellant, v. Violet BRAMER and John C. Schleicher, respondents. (Supreme Court, Appellate Division, Second Department. June 25, 1920.) Judgment unanimously affirmed, with costs. Νο opinion.

Rose WALSH, Applt., v. Patrick COLL, as Ex'r, etc., impleaded, etc., Respt. (Supreme Court, Appellate Division, First Department. May 28, 1920.) Judgment affirmed, with costs. No opinion. Order filed.

ed, with costs, and verdict unanimously reinstated, with costs. The evidence presented a fair question of fact for the jury, and their decision thereon should not be disturbed. If

there is any preponderance in favor of the defendant, it is not sufficient to justify interfering with the jury's verdict.

tave E. KRUSE, respondent. (Supreme Court, Benjamin WEINTRAUB, appellant, v. GusAppellate Division, Second Department. May 28, 1920.) Order and judgment appealed from reversed, and defendant's motion denied; plainbursements, with leave, however, to defendant tiff's motion granted, with $10 costs and disto withdraw demurrer within 20 days, and which event the motion is denied. We think serve an answer, on payment of $10 costs, in that the memorandum jointly signed was sufficient. See Tobias v. Lynch (decided May 21. 1920), 192 App. Div. 54, 182 N. Y. Supp. 643. Jenks, P. J., and Mills, Putnam, Blackmar, and Kelly, JJ., concur.

Benjamin WEINTRAUB, appellant, v. Gustave E. KRUSE, respondent. (Supreme Court, Appellate Division, Second Department. June 25, 1920.) Motion denied.

Morris WEISMAN, respondent, v. David ROTHENSTEIN, appellant. (Supreme Court, Appellate Division, Second Department. May 14, 1920.) Order granting new trial on the ground of newly discovered evidence reversed, with costs, and motion denied, with $10 costs, with leave to plaintiff to renew such motion, if so advised upon a proper case as required by law. Code Civ. Proc. § 997; Davis v. Grand Rapids Fire Ins. Co., 5 App. Div. 36, 39 N. Y. Supp. 71; Pease v. Pennsylvania R. R. Co., 137 App. Div. 458, 122 N. Y. Supp. 784; Russell v. Randall, 123 N. Y. 436, 25 N. E. 931;