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(182 N.Y.S.) 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. All 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, stipu

UNITED STATES MORTGAGE & TRUST late to reduce the verdict to the sum of $4,000, Co., Respt., v. LIBERTY NATIONAL BANK, as of the date of the rendition thereof, in which Applt. (Supreme Court, Appellate Division, event the judgment is modified accordingly, and, First Department. June 4, 1920.) Order reas so modified, is, together with the order, af- versed, with $10 costs and disbursements, and firmed, without costs of this appeal to either motion granted, to the extent of modifying the party. All concur.

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 Robertus F. TROY, respt., V. RUTLAND

fixed in the order. No opinion. Settle order RAILROAD COMPANY, applt.

on notice.

(Supreme Court, Appellate Division, Third Department. May 14, 1920.) Decision amended nunc pro UNIVERSAL FILM MANUFACTURING tunc as of March 3, 1920, so as to read as fol- CO., Applt., v. RAMMS, Inc., impld., etc., Relows: Judgment and orders affirmed, with costs. spt. (Supreme Court, Appellate' Division, All concur, except Woodward and Henry T. Kel- First Department. May 21, 1920.) Order loge, JJ., who dissent, on the ground that as affirmed, with $10 costs and disbursements. No matter of law the plaintiff was guilty of_con- opinion. Settle order on notice. The date for tributory negligence. Order entered in Rens- the examination to proceed to be fixed in the selaer county clerk's office March 5, 1920, order. amended nunc pro tunc as of March 4, 1920, and the judgment on said order entered in said clerk's office March 5, 1920, amended nunc pro

Oscar UNZ V. Lillian E. FITZGERALD. tunc as of March 4, 1920, to conform with (Supreme Court, Appellate Division, First Deamended decision. See. also, 186 App. Div. partment. June 18, 1920.) Motion denied, 196, 173 N. Y. Supp. 895.

with $10 costs. Defendant can obtain a stay upon giving an undertaking to secure the judgment. Order filed.

William J. TUBBIOLO, respondent, v. Anne

UVALDE ASPHALT PAVING CO. v. CITY S. WATKINS, appellant. (Supreme Court, Ap- OF NEW YORK. (Supreme Court, Appellate pellate Division, Second Department, May 21, Division, First Department. . May 21, 1920.) 1920.) Order reversed, with $10 costs and dis- Motion to dismiss appeal denied. Order filed. bursements, 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 UVALDE ASPHALT PAVING CO. v. CITY 872 of the Code of Civil Procedure, and that OF NEW YORK. (Supreme Court, Appellate defendant's objection upon that ground should Division, First Department. June 4, 1920.) have been sustained at Special Term. Jenks, Motion granted, and appellant's time to serve P. J., and Mills, Rich, Putnam, and Kelly, JJ., and file brief extended for 60 days from June concur.

1, 1920. Order filed.

Francesca TURRISI, Respt., v. Alphonso Robert A. VAN CLEAVE, appellant, v. WilTURRISI, Applt. (Supreme Court, 'Appellate liam C. DEMOREST et al., respondents. (SuDivision, First Department. June 18, 1920.) preme Court, Appellate Division, Second DeOrder affirmed, with $10 costs and disburse-partment. May 21, 1920.) Judgment reversed, ments. No opinion. Order filed.

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) Edith M. TUTTLE et al., suing, etc., Respts., and that the trial court should have regarded V. WESTERN UNION TELEGRAPH CO. and that decision as conclusive upon it, and as conanother, Applts. (Supreme Court, Appellate stituting the law of the case. Jenks, P. J., Division, First Department. June 18, 1920.) and Mills, Rich, Putnam, and Blackmar, JJ., Order affirmed, with $10 costs and disburse

See also, 174 App. Div. 928, 160 N. ments. No opinion. Order filed.

Y. Supp. 923.

concur.

Arthur L. VAN ETTEN et al. v. Charles M. WARREN GORDON LIGÁTERAGE, Inc., HIRSCHFELDER et al. (Supreme Court, respondent, v. William A. JAMISON and othAppellate Division, Fourth Department. Maroh ers, doing business under the name of Arbuckle 17, 1920.) Motion granted, unless defendants Bros., appellants, and Frank A. Lawrence, shall file and serve printed papers and briefs defendant. (Supreme Court, Appellate Diviby April 12, and be ready for argument at the sion, Second Department. June 4, 1920:) opening of the May term.

Judgment and order unanimously affirmed, with costs. No opinion.

Arthur L. VAN ETTEN and one v. Charles WARREN REFINING CHEMICAL CO., ap. M. HIRSCHFELDER et al. (Supreme Court, plt., v, James O. SEBRING, respt. (Supreme Appellate Division, Fourth Department, May Court, Appellate Division, Fourth Department. 19, 1920.) Defendants' exceptions overruled, March 3, 1920.) Appeal dismissed, unless ap, motion for new trial denied, with costs, and pellant shall file and serve printed papers and judgment directed for the plaintiffs upon the briefs and pay to respondent $10 by March verdict, with costs. All concur; Clark, J., not 5th and be ready for argument on March 15th. sitting.

In the Matter of the INCORPORATION OF William K. WATERMAN, appellant, y. DaTHE VILLAGE OF LAFARGEVILLE, X. 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.

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 In the matter of proceedings supplementary there is any, preponderance in favor of the deto execution. The VOGUE COMPANY, re- fendant, it is not sufficient to justify interferspondent, v. EMILE FORQUIGNON, Inc., ing with the jury's verdict. 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, tave E. KRUSE, respondent. (Supreme Court,

Benjamin WEINTRAUB, appellant, v. GusKelly, and Jaycox, JJ., concur.

Appellate Division, Second Department. May 28, 1920.) Order and judgment appealed from

reversed, and defendant's motion denied; plainIn the matter of proceedings supplementary bursements, with leave, however, to defendant

tiff's motion granted, with $10 costs and disto execution. VOGUE COMPANY, respond to withdraw demurrer within 20 days, and ent, v. EMILE FORQUIGNON, Inc., appellant. (Supreme Court, Appellate Division, Second which event the motion is denied. We think

serve an answer, on payment of $10 costs, in Department. June 18, 1920.) leave to appeal to the Court of Appeals de- that the memorandum jointly signed was suf

ficient. See Tobias v. Lynch (decided May nied, and stay vacated.

21. 1920). 192 App. Div. 54, 182 N. Y. Supp. 643. Jenks, P. J. and Mills, Putnam, Black

mar, and Kelly, JJ., concur, Theodore F. VON DORN et al. v. Roscoe CRARY, impld., etc. (Supreme Court, Appellate Division, First Department. June 18, Benjamin WEINTRAUB, appellant, v. Gus. 1920.) Motion to dismiss appeal granted, tave E. KRUSE, respondent. (Supreme Court, with $10 costs. Order filed.

Appellate Division, Second Department. June 25, 1920.) Motion denied.

Lina VON KAMP, substituted in place of Fred Von Kamp, deceased, appellant, v. Vio

Morris WEISMAN, respondent, v. David let BRAMER and John C. Schleicher, respond- ROTHENSTEIN, appellant. (Supreme Court, ents. (Supreme Court, Appellate Division, Appellate Division, Second Department. May Second Department. June 25, 1920.)

Judg. 11, 1920.)

Order granting new trial on the ment unanimously affirmed, with costs. No

ground of newly discovered evidence reversed, opinion.

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 Rose WALSH, Applt., v. Patrick COLL, as by law. Code Civ. Proc. & 997; Davis v. Grand Ex'r, etc., impleaded, etc., Respt. (Supreme Rapids Fire Ins. Co., 5 App. Div. 36, 39 N. Court. Appellate Division, First Department. Y. Supp. 71; Pease v. Pennsylvania R. R. Co., May 28, 1920.) Judgment affirmed, with costs. 137 App. Div. 458. 122 N. Y. Supp. 784; Rus. No opinion. Order filed.

sell v. Randall, 123 N. Y. 436, 25 N. E, 931;

(182 N.Y.S.) Bantleon v. Meier, 81 Hun, 162, 30 N. Y. Supp: ( pellate Division, Second Department. May 706. Jenks, P. J., and Mills, Rich, Kelly, and 21, 1920.) Motion dismissed, without costs. Jaycox, JJ. concur.

The proper practice is an application to the court in which the action was tried.

Albert P. WELLS, Respt., v. Joseph C. BROWNSTONE et al., Applts. (Supreme

In the matter of the judicial settlement of Court, Appellate Division, First Department. May 21, 1920.) Order affirmed, with $10 costs the accounts of Virginia Kent WHITE and and disbursements, with leave to defendants to

one, as executors of Pendennis White, deceased. withdraw demurrer and to answer, on payment (Supreme Court, Appellate Division, Fourth of said costs and $10 costs of motion at Spe- decree, so far as appealed from, affirmed, with

March 3, 1920.) Order and cial Term. No opinion. Order filed.

costs. All concur.

In the matter of the application of Grace H. WENTWORTH as executrix of the last Ollie WHITE and one, respts., v. George W. will and testament of John W. Wentworth, de- DE GRAFF and one, applts. (Supreme Court, ceased, to compel Henry L. Armstrong, as ex- Appellate Division, Fourth Department ecutor and trustee under the last will and tes March 3, 1920.) Judgment affirmed, with costs. tament of Mary Emma Armstrong, deceased, All concur. to render and file an account of his proceedings as such executor and trustee. (Supreme Court, Appellate Division, Third Department. May

WHITESIDE ELECTRIC & MANUFAC14, 1920.) Decision amended, by striking out TURING CO., Respt., v. Howard A. WHITEprovision as to costs. In other respects, mo- SIDE et al., Applts. '(Supreme Court, Appeltion denied.

late Division, First Department. May 14, 1920.)

Order affirmed, with $10 costs and disburseIgnatius WESOLOSKI, respondent, v. Har- ments, with leave to defendants to withdraw ris VIRSHUP and others, appellants. (Su

demurrers and to answer, on payment of said preme Court, Appellate Division, Second De costs and $10 costs of motion at Special Term. partment. May 14, 1920.) Motion for stay

No opinion. Order filed. denied, with $10 costs.

Robert WEST, an infant, by Lulu West, his NEW YORK INTERURBAN WATER COM

David L. WHITMORE, etc., appellant, v. guardian ad litem, appellant, v. CONEY ISLAND & BROOKLYN RAILROAD COMPA: late Division, Second Department.

PANY, respondent. (Supreme Court, AppelNY, respondent.

May 7, Division, Second Department. June 4, 1920.) 1920.) Motion to dismiss appeal denied, with

out costs.
Judgment and order of the County Court of
Kings County unanimously affirmed, with costs.
No opinion.

Constant F. WHITNEY et al., appellants, v.

CONSIDINE INVESTING COMPANY et al., In the matter of the application of the

respondents. (Supreme Court, Appellate DiWESTERN UNION TELEGRAPH COMPA- vision, Second Department. June 11, 1920.) NY for a writ of mandamus against Josiah T. Motion to dismiss appeal granted, with $10 MAREAN. (Supreme Court, Appellate Divi

costs. sion, Second Department. June 25, 1920.) Motion for writ of mandamus denied, without costs. The former justice has, in his affidavit presented to us, stated that he was willing to

Constant F. WHITNEY et al., appellants, v. settle the case and order it on file, if the par- | CONSIDINE INVESTING COMPANY et al., ties would agree on the form thereof.

respondents. (Supreme Court, Appellate Division, Second Department. June 25, 1920.) Motion granted. Order dismissing appeal va

cated, and appeal reinstated, without costs. Laura Fox WETMORE, as adm'x, etc., applt. v. Frank FOWLER et al., respts. (Supreme Court, Appellate Division, Fourth Department. March 3, 1920.) Motion granted, and appeal dismissed, with costs.

Milton O. WICKS, respondent, v. CRYSTAL SPRING ICE COMPANY, appellant, and Charles H. Danis, defendant. (Supreme Court,

Appellate Division, Second Department. May Stephen A. WHISTEN, appellant, v. Colin 21, 1920.) Interlocutory judgment and order M. EADIE, respondent. (Supreme Court, Ap- unanimously affirmed, with costs. No opinion.

Caroline WILKS, as adm'x, etc., Respt., v. N. I make the additional allegations by way of Y. TELEPHONE CO. and one, Applts. (Su- amendment (Backes v. Mechanics' & Traders' preme Court, Appellate Division, Fourth De- Bank, 130 App. Div. 20, 114 N. Y. Supp. 459), partment. May 12, 1920.) Order affirmed, with and the order is reversed, with $10 costs and $10 costs and disbursements. All concur. disbursements, and motion denied, with $10

costs. Jenks, P. J., and Mills, Rich, Blackmar,

and Jaycox, JJ., concur. WILLIAM BLATH, Incorporated, respondent, v. Irving W. YOUNG, appellant. (Supreme Court, Appellate Division, Second Department. WINTER & CO., Applt., v. RUDOLPH PI. June 4, 1920.) Final order of the County | ANO CO., Applt., impld. with Traders' NationCourt of Westchester County reversed, with al Bank of Rochester, Respt., et al., Defts. costs, and the petition unanimously dismissed, (Supreme Court, Appellate Division, First De. with costs. The proof shows that Danner was partment. May 14, 1920.). Judgment affirmed, authorized by plaintiff to make on his behalf with costs. No opinion. Order filed. with the defendant the precise agreement which Danner by the receipt of June 4, 1919, attempted to make. There is no proof that thereafter defendant refused to execute any lease WINTER & CO. v. RUDOLPH PIANO CO., tendered by plaintiff.

impleaded, etc. (Supreme Court, Appellate Division, First Department. June 18, 1920.) Motion denied, with $10 costs. Order filed.

S. Frank WILLIAMSON, as Receiver, etc., Respt., v. WHITNEY COMPANY, Applt. (Supreme Court, Appellate Division, First Depart- John R. WOFIELD and another, respondents, ment. May 28, 1920.) Judgment and order af- v. W. BECKER'S ANILINE & CHEMICAL firmed, with costs. No opinion. Order filed.

WORKS, Inc., appellant. (Supreme Court, Appellate Division, Second Department. June 11, 1920.) Motion denied, with $10 costs.

S. Frank WILLIAMSON, as Receiver, etc., v. WHITNEY CO. (Supreme Court, Appellate Division, First Department. June 18, Walter WOOD and one, respts., v. Dana J. 1920.) Motion for reargument or for leave to MACAFEE et al., applts. (Supreme Court, appeal denied, with $10 costs. Order filed. Mo- Appellate Division, Fourth Department. March tion for stay granted. Settle order on notice. 17, 1920.) Judgment (172 N. Y. Supp. 703)

affirmed, with costs. All concur.

WM. T. REYNOLDS & COMPANY, Inc., respondent, v. SEGGERMAN BROTHERS, Inc.,

Curtis P. WOODBURY v. George B. LEIGHappellant. (Supreme Court, Appellate 'Divi- TON et al. (Supreme Court, Appellate Di. sion, Second Department. May 7, 1920.) Or- vision, First Department. June 4, 1920.) Moder reversed, with $10 costs and disbursements, tion for stay pending appeal granted. Settle and demurrer sustained, with $10 costs, on the order on notice. ground of a defect in parties defendant, with leave to plaintiff to amend its summons and complaint upon payment of such costs within Elva R. WOODWARD, Applt., v. Edward J. twenty days. Jenks, P. J., and Mills, Rich, KELLY, Respt. (Supreme Court, Appellate Blackmar, and Jaycox, JJ., concur.

Division, First Department. June 4, 1920.)
Order affirmed, with $10 costs and disburse-

ments. No opinion. Order filed. William H. WILTSE, Applt., V. THOMAS MILLEN CO., Respt. (Supreme Court, Appellate Division, Fourth Department. May 19, Joseph WOOLSLEGER, Respt., v. Fred 1920.) Judgment affirmed, with costs. All con- CORNELL, Applt. (Supreme Court, Appellate

Division, Fourth Department. May 19, 1920.)
Judgment and order affirmed, with costs. All

concur. Caroline S. WIMPFHEIMER, appellant, v. Juanita L. Wendell and Frank M. Tichenor, individually and as executors, etc., respondents, X. AMUSEMENT CO., Inc., V. HERMES (Supreme Court, Appellate Division, Second AMUSEMENT CO., Inc. (Supreme Court, Department. May 7, 1920.) Plaintiff has com- Appellate Division, First Department. June plied with the requirements of the order of 18, 1920.) Motion for stay denied, with $10 November 3, 1919. She had a perfect right to costs, and temporary stay vacated. Order filed.

cur.

(182 N.Y.S.) Margaret A. YOUNG and one, respts., v. 1 (Supreme Court, Appellate Division, Fourth AMERICAN CENTRAL INS. CO. OF ST. Department. May 21, 1920.) Final and inLOUIS, MO., applt. (Supreme Court, Appel-terlocutory judgments reversed, without costs. late Division, Fourth Department. May 21, All concur. 1920.) Final and interlocutory judgments reversed, without costs. All concur.

Abraham ZAREMBOWITZ, Applt., v. CITY REAL ESTATE CO. et al., Respts. (Supreme

Court, Appellate Division, First Department. Margaret A. YOUNG and one, respts., v. May 21, 1920.) Order affirmed, with $10 costs SENECA FIRE INSURANCE Co., applt. I and disbursements. No opinion. Order filed.

END OF CASES IN VOL. 182

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