by Daniel W. Shoyer and another against the Phoenix Knitting Works. From an order denying defendant's motion for particulars of plaintiff's complaint and reply, it appeals. Modified and affirmed. B. L. Stowell, of New York City, for appellant. Achilles H. Kohn, of New York City, for respondents. PER CURIAM. The order appealed from will be modified, by granting the defendant's motion for particulars as specified in paragraphs 9 to 17, inclusive, of the demand, in addition to those already granted, and, as so modified, is affirmed, without costs to either party in this court. SIDWAY, Respondent, v. SIDWAY, Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1912.) Action by Mary S. Sidway against Harold S. Sidway. PER CURIAM. Motion to dismiss appeal denied, on condition that the appellant, within 10 days, pay the counsel fee on appeal' already awarded by order of the Special Term, and also the sum of $500 on account of the arrears of alimony, and perfect his appeal, place the case on the next calendar of this court, and be ready for argument when reached; otherwise, motion granted, with $10 costs. See, also, 137 N. Y. Supp. 1143. SIDWAY, Appellant, v. SIDWAY, Respondent. (Supreme Court, Appellate Division, Second Department. November 1, 1912.) Action by Mary S. Sidway against Harold S. Sidway. No opinion. Order affirmed, without costs. See, also, 137 N. Y. Supp. 1143. SILVERMAN v. CAPPEL. (Supreme Court, Appellate Division, First Department. October 18, 1912.) Action by Hyman H. Silverman against Peter P. Cappel. No opinion. Motion to dismiss appeal granted, with $10 costs, unless appellant comply with terms stated in order. Order filed. In re SIMMONS et al. (Supreme Court, Appellate Division, Second Department. September 10, 1912.) In the matter of the application and petition of J. Edward Simmons and others, etc. Hill View Reservoir, Section No. 2, Parcel No. 119. PER CURIAM. Order of confirmation affirmed, with $10 costs and disbursements. BURR, J., dissents, upon the ground that the evidence is not clear that the "chute" which it is claimed gives special value to this property as a race track was in existence when the title vested in the city. There is some evidence that it was constructed afterwards. SIMONS, Respondent, v. INTERNATIONAL RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 16, 1912.) Action by Caroline J. Simons, as administratrix, etc., against the International Railway Company. PER CURIAM. Judgment and order affirmed, with costs. FOOTE, J., dissents. SPRING, J., not sitting. lant. SKINNER, Respondent, v. DENTON, Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1912.) Action by James H. Skinner against Jacob I. Denton. No opinion. Motion denied, on condition that the appellant perfect his appeal, place the case upon the next calendar of this court, and be ready for argument when reached; otherwise, motion granted, without costs. SKIPPANI, Respondent, v. NEW YORK, O. ' & W. RY. CO., Appellant. (Supreme Court, Appellate Division, Second Department. November 1, 1912.) Action by Alfranzina Skippani, as administratrix, against the New York, Ontario & Western Railway Company. PER CURIAM. Order affirmed, with $10 costs and disbursements. THOMAS, J., dissents. SLAUGHTER, Respondent, v. TURKEL_et vision, First Department. al., Appellants. (Supreme Court, Appellate DiOctober 18, 1912.) Action by Alexander F. Slaughter against Bernard Turkel and another. A. I. Spiro, of New York City, for appellants. G. H. Francoeur, of New York City, for respondent. Orders affirmed, with $10 costs and disburseNo opinion. ments. Order filed. See, also, 146 App. Div. 620, 131 N. Y. Supp. 324. SLAVIN, Respondent, V. O'LEARY FLANNAGAN CO., & Court, Appellate Division, First Department. Appellant. (Supreme October 18, 1912.) Action by William Slavin, as administrator against the O'Leary & Flannagan Company. E. J. Blair, of New York City, for appellant. W. J. Rosenstein, of New York City, for respondent. No opinion. der affirmed, with $10 costs and disbursements. OrOrder filed. MENT OF TOWN OF NEWTOWN et al., SLOAN, Respondent, v. STONE, Appellant. | opinion. Judgment and order affirmed, with PER CURIAM. Order affirmed, with $10 costs and disbursements. ROBSON and FOOTE, JJ., dissent. SMITH, Respondent, v. GEIGER, Appellant. (Supreme Court, Appellate Division, Second Department. November 15, 1912.) Action by Jeffrey Smith against William Geiger. No opinion. Order affirmed, without costs. See, also, 134 App. Div. 930, 118 N. Y. Supp. 1143. SMITH, Respondent, v. HELLMAN et al., Appellants. (Supreme Court, Appellate Division, Second Department, November 1, 1912.) Action by William H. Smith against Charles Hellman and another. SOTSKY, Respondent, v. COHEN, Appellant. (Supreme Court, Appellate Division, SecAction ond Department. November 1, 1912.) by Abraham Sotsky against Abraham Cohen. No opinion. Judgment and order affirmed, with costs. See, also, 136 N. Y. Supp. 1148. SPENCER, Respondent, v. VILLAGE OF SALAMANCA, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 18, 1912.) Action by Mary Spencer against the Village of Salamanca. No opinion. Judgment and order affirmed, with costs. NAT. BANK, Respondent. ed, with costs, on opinion in 145 App. Div. 188, SPRINTZ, Respondent, v. COOPER, Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1912.) Action by Charles Sprintz against Michael Cooper. No opinion. Judgment and order of the County Court of Kings County affirmed, with costs. See, also, 135 N. Y. Supp. 1144. SPRINTZ, Respondent, v. COOPER, Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1912.) Action by Samuel Sprintz against Michael Cooper. Νο opinion. Judgment and order of the County Court of Kings County affirmed, with costs. See, also, 135 N. Y. Supp. 1144. SMITH, Appellant, v. LUCKENBACH, et al., Respondents. (Supreme Court, Appellate Division, Second Department. November 15, In re SPUYTEN DUYVIL ROAD. (Su1912.) Action by Mary Smith, as administra-preme Court, Appellate Division, First Departtrix, etc., of Joseph Smith, deceased, against ment. November 1, 1912.) In the matter of Edgar F. Luckenbach and others. No opinion. the Spuyten Duyvil Road. No opinion. MoReargument ordered, and case set down for tion granted. Questions certified. Order filed. Wednesday, November 20, 1912. See, also, 145 App. Div. 917, 129 N. Y. Supp. 1147. SMITH, Appellant, v. PARRY, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 16, 1912.) Action by John Smith against Watkyn W. Parry. PER CURIAM. Judgment affirmed, with costs. SPRING, J., not sitting. SODEKSON et al., Appellants, v. MUTUAL BEN. LIFE INS. CO., Respondent. (Supreme Court, Appellate Division, First Department. November 1, 1912.) Action by Bessie Sodekson and another against the Mutual Benefit Life Insurance Company. H. W. Bridges, of New York City, for appellants. B. G. Paskus, of New York City, for respondent. No SQUIRES v. FITZHUGH SMITH CO. et al. (Supreme Court, Appellate Division, First Department. October 18, 1912.) Action by Lewis Squires against the Fitzhugh Smith Company and others. No opinion. Motion to dismiss appeal (from 133 N. Y. Supp. 916) granted, with $10 costs. Order filed. See, also, 150 App. Div. 924, 135 N. Y. Supp. 1144. SQUIRES v. SMITH. (Supreme Court, Appellate Term, First Department. October 23, 1912.) Appeal from City Court of New York, Special Term. In the matter of supplementary proceedings by Lewis Squires, judgment cred itor, against Fitzhugh Smith, judgment debtor. | the motion. Hays, Herschfield & Wolf, of From an order adjudging the judgment debtor New York City, opposed. in contempt for evasive answers, he appeals. Reversed. Jere Liebermann, of New York City, for appellant. Richard S. Harvey, of New York City, for respondent. SEABURY, J. The judgment debtor, a man 77 years old, in failing health and of poor memory, appeals from an order of the City Court adjudging him guilty of contempt for alleged "evasive answers" to questions put to. him upon his examination in proceedings supplementary to execution. The order adjudging the judgment debtor in contempt recites: "That on said examination the said judgment debtor willfully refused to make proper answers to material questions propounded to him on said examination and willfully refused to disclose facts within his knowledge as to his financial condition and as to his transfers of stock to one Lizzie Borgers and one Dora Scott and willfully refused to state the consideration upon which said transfers were made." The alleged "evasiveness" consisted in the statement of the judgment debtor that he did not remember certain details of a stock transaction in which he was engaged several years before. While it may be, as was held in Matter of Becker v. Gerlich, 72 Misc. Rep. 157, 129 N. Y. Supp. 614, that the general power of the court which is reserved in subdivision 8 of section 753 of the Judiciary Law (Consol. Laws 1909, c. 30), allows the punishment as for a civil contempt of one who denies knowledge or recollection of matters concerning which it is incredible that he has forgotten, we are satisfied, from a review of the record before us, that this is not such a case. We think that the discretion of the learned court below was not exercised properly in this case, and that the order should be reversed. Order reversed, with $10 costs and disbursements, to be applied on account of the judgment. All concur. SQUIRES, Appellant, v. VON DER LIETH, Respondent. (Supreme Court, Appellate Division, Second Department. September 10, 1912.) Action by George D. Squires against Anna Von Der Lieth. No opinion. Judgment modified, by striking out the words "upon the merits,' and, as modified, unanimously affirmed, without costs. SQUIRES, Appellant, v. VON DER LIETH, Respondent. (Supreme Court, Appellate Division, Second Department. October 18, 1912.) Action by George D. Squires against Anna Von Der Lieth. No opinion. Motion denied, without costs. See, also, 137 N. Y. Supp. 1145. GIEGERICH, J. Under the decision of the Appellate Division of the Second Department in Abrahams v. Berkowitz, 146 App. Div. 563, 131 N. Y. Supp. 257, the application of the plaintiff that the receiver pay over to it the funds in his possession on account of the mortgage which was foreclosed in this action must be granted. Settle order on notice. STATE BANK v. COHEN et al. (Supreme Court, Special Term, New York County. April 9, 1912.) Action by the State Bank against Jacob Cohen and another. Motion to compel receiver to pay over moneys denied. See, also, 124 N. Y. Supp. 433; 137 N. Y. Supp. 1145. Hays, Herschfield & Wolf, of New York City, for the motion. Walter T. Kohn, of New York City, opposed. GIEGERICH, J. The application of the American Woolen Company of New York must be denied, upon the authority of Abrahams v. Berkowitz, 146 App. Div. 563, 131 N. Y. Supp. 257. Settle order on notice. STATE BANK, Respondent, v. COHEN_et al., Appellants. (Supreme Court, Appellate Division, First Department. October 18, 1912.) Action by the State Bank against Jacob Cohen and others. D. P. Hays, for appellants. T. Kohn, for respondent. No opinion. Order (137 N. Y. Supp. 1145) affirmed, with $10 costs and disbursements. Order filed. W. STEINMAN et al. v. CONLON. (Supreme Court, Appellate Division, First Department. October 18, 1912.) Proceeding by Benjamin Steinman and others against Eva K. Conlon. No opinion. Motion to dismiss appeal granted, with $10 costs, unless appellant comply with terms stated in order. Order filed. See, also, 136 N. Y. Supp. 1148. STEM, Respondent, v. OWENS, Appellant. (Supreme Court, Appellate Division, Second Department. November 1, 1912.) Action by John D. Stem against Benjamin V. W. Owens. No opinion. Judgment and order affirmed, with costs. See, also, 149 App. Div. 954, 133 N. Y. Supp. 1145. STEPHEN MERRITT BURIAL & CREMATION CO. v. STEPHEN MERRITT CO. et al. (Supreme Court, Appellate Division, First Department. October 18, 1912.) Action by the Stephen Merritt Burial & Cremation Company against Stephen Merritt Company and others. No opinion. Motion granted, and stay continued, on defendants filing a bond as stated in memorandum per curiam. Settle order on notice. See, also, 148 App. Div. 911, 133 N. Y. Supp. 1145. STATE BANK v. COHEN et al. (Supreme Court, Special Term, New York County. April STRAUSS v. KINGS COUNTY LIGHTING 9, 1912.) Action by the State Bank against CO. (Supreme Court, Appellate Division, Jacob Cohen and another. Motion to compel First Department. October 18, 1912.) Action receiver to pay over moneys granted. See, by Max Strauss against the Kings County also, 124 N. Y. Supp. 433; 137 N. Y. Supp. Lighting Company. No opinion. Application 1145. Walter T. Kohn, of New York City, for denied, with $10 costs. Order signed. SULLIVAN, Appellant, v. MACK, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 2, 1912.) Action by Margaret E. Sullivan against Norman E. Mack. No opinion. Order affirmed, with $10 costs and disbursements. SUTTON, Appellant, v. BUTLER, Respondent. (Supreme Court, Appellate Division, Second Department. November 1, 1912.) Action by McWalter B. Sutton against William E. Butler. No opinion. Motion denied, without costs. See, also, 135 N. Y. Supp. 1145. TITLE GUARANTEE & TRUST CO. v. SUGERMAN et al. (Supreme Court, Appellate Division, Second Department. November 15, 1912.) Action by the Title Guarantee & Trust Company, individually and as executor, etc., of Mary Augusta Mott, deceased, against Philip Sugerman and others. PER CURIAM. Judgment affirmed, with costs. See, also, 149 App. Div. 925, 133 N. Y. Supp. 1146. tion of the fund is concerned, but dissents as THOMAS, J., concurs, so far as the disposi to the finding that the loan was usurious. TOLAND et al., Appellants, v. BRACKEN et al., Respondents. (Supreme Court, Appellate Division, First Department. October 18, 1912.) Action by Andrew J. Toland and another against Thomas Bracken and others. W. F. Clare, of New York City, for appellants. J. J. Cunneen, of Buffalo, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. TUPPER, Respondent, v. TUPPER, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 8, 1912.) Action by Allen P. Tupper against Jeannie B. Tupper. PER CURIAM. Order reversed, with costs. motion for new trial denied, and verdict of jury reinstated. Held, that the verdict of the jury upon both questions submitted to them was not against the weight of the evidence. ROBSON, J., dissents. In re UNDERWOOD et al. (Supreme Court, Appellate Division, Fourth Department. October 16, 1912.) In the matter of the judicial settlement of the accounts of Henry C. Underwood and William T. Morris, as executors, etc., of Henrietta J. Monell, deceased. PER CURIAM. Decree affirmed, with costs. TARTER, Respondent, v. MORGAN et al., Appellants. (Supreme Court, Appellate Divi sion, Second Department. October 18, 1912.) Action by Joseph A. Tarter against William In re UVALDE ASPHALT PAVING CO. J. Morgan and another. No opinion. Motion denied, on condition that the appellants pay partment. November 1, 1912.) In the matter (Supreme Court, Appellate Division, First De$10 costs, perfect their appeal, place the case of the application of the Uvalde Asphalt Pav on the next calendar, and be ready for arguing Company. No opinion. ment when reached; otherwise, motion grant- with $10 costs and disbursements. Order filed Order affirmed, ed, with $10 costs. In re TAYLOR. (Supreme Court, Appellate Division, Second Department. October 4, 1912.) In the matter of James Taylor, an attorney. No opinion. Motion granted. See, also, 147 App. Div. 936, 132 N. Y. Supp. 1148. THOMAS, Appellant, v. BELNORD AUTO STORAGE CO., Respondent. (Supreme Court, Appellate Division, First Department.__October 18, 1912.) Action by Oscar B. Thomas against the Belnord Auto Storage Company. O. B. Thomas, of New York City, for appellant. H. M. Flateau, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. VAN DEVORT, Respondent, v. MINK, Appellant. (Supreme Court, Appellate Division. Fourth Department. October 16, 1912.) Ac tion by Gilbert M. Van Devort, as administrator, etc., against Lincoln A. Mink. No opinion. Appeal dismissed, without costs, upon stipulation filed. VANE, Appellant, v. FLAHERTY et al., Respondents. (Supreme Court, Appellate Division, First Department. November 8, 1912.) Action by James G. Vane against William H. Flaherty and another. H. F. Stone, of New York City, for appellant. J. H. Beall, of New York City, for respondents. No opinion. Judg ment and order affirmed, with costs. Order words "on the merits," and, as so modified, af filed. VAN KIRK, Respondent, v. FIRST SOCIE TY OF METHODIST EPISCOPAL CHURCH OF GENEVA, Appellant. (Supreme Court, Appellate Division, Fourth Department. Gctober 2, 1912.) Action by Martin L. Van Kirk against the First Society of Methodist Episcopal Church of Geneva. No opinion. Motion to dismiss appeal denied, with $10 costs. VAN TUYL. Superintendent of Banks, v. SCHARMANN et al. (Supreme Court, Appellate Division, Second Department. November 1, 1912.) Appeal from Special Term, Kings County. Action by George C. Van Tuyl, Jr., as Superintendent of Banks, against August C. Scharmann and others. From an order overruling a demurrer to the complaint, defendants appeal. Affirmed. Almet Reed Latson, of New York City (Ward W. Pickard, of New York City, on the brief), for appellants. D. Cady Herrick, of New York City (Frank M. Patterson, of New York City, on the brief), for respondent. PER CURIAM. We think that the decision of the learned Special Term, overruling the demurrer to this complaint, was proper. The chief points of attack made upon the complaint have already been discussed by this court in Cheney v. Scharmann, 145 App. Div. 456, 129 N. Y. Supp. 993, and we see no present reason for departing from the conclusion then reached by the court, which was adverse to the contentions now made by the appellants in this action. The point of the demurrer as to the defect of parties defendant was not involved in nor discussed in the decision referred to, but we agree with the learned Special Term that the Lafayette Trust Company was not a necessary party to the maintenance of this action in equity, although it was a proper party, and may be brought in at any time before the trial of the action. The order overruling the demurrer is affirmed, with $10 costs and disbursements, but with leave to the defendants to answer within 20 days, on payment of the costs and disbursements of this appeal, together with the costs awarded in the order appealed from. firmed, without costs. VOGELL, Appellant, v. ROSENTHAL, Respondent. (Supreme Court, Appellate Division, First Department. October 25, 1912.) Action by William H. Vogell against Sadie B. Rosenthal. N. D. Stern, of New York City, for appellant. B. N. Cardozo, of New York City, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. In re WALDRON'S WILL. (Supreme Court, Appellate Division, Second Department. September 10, 1912.) In the matter of the probate of the last will and testament of Mary A. Waldron, deceased. PER CURIAM. Decree of the Surrogate's Court of Kings County (133 N. Y. Supp. 1104) reversed, upon questions of fact, with costs to the finally successful party, payable from the estate, and a trial of the following issues of fact directed to be had, as provided by section 2588 of the Code of Civil Procedure, by a Jury at the November term of the Supreme Court in the county of Kings, viz.: (1) Is the signature attached to the alleged will the genuine signature of the deceased, Mary A. Waldron? (2) Was such alleged will executed as required by law? (3) Was the execution of the alleged will procured by fraud or undue influence practiced upon the testatrix? In re WALDRON'S WILL. (Supreme Court, Appellate Division, Second Department. October 18, 1912.) In the matter of the probate of the last will and testament of Mary A. Waldron, deceased. No opinion. Motion for resettlement of order of reversal denied, with $10 costs. See, also, 137 N. Y. Supp. 1147. WALLER, Appellant, v. SCHRATWEISER FIREPROOF CONST. CO., Respondent. (Supreme Court, Appellate Division, Second Department. September 10, 1912.) Action by Arthur Waller, an infant, by Charles Johnson, his guardian ad litem, against the Schratweiser Fireproof Construction Company. PER CURIAM. Judgment and order affirmed, with costs. THOMAS and CARR, JJ., dissent. No WALSH, Respondent, v. BROOKLYN, Q. C. VAN WICKLEN, Respondent, V. VAN & S. R. CO., Appellant. (Supreme Court, ApWICKLEN, Appellant. (Supreme Court, Ap- pellate Division, Second Department. pellate Division, Second Department. Septem-vember 15, 1912.) Action by Edmund J. ber 10, 1912.) Action by David S. Van Wick- Walsh against the Brooklyn, Queens County & len against Elizabeth Van Wicklen. No opin- Suburban Railroad Company. ion. Judgment and order affirmed, with costs. See, also, 142 App. Div. 507, 127 N. Y. Supp. 75. VINCENT, Appellant, v. PAYNE et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 4, 1912.) Action by John Vincent against Albert E. Payne, as executor, etc., and others. No opinion. Judgment modified, by striking out the PER CURIAM. Judgment and order of the County Court of Queens County reversed, and new trial ordered, costs to abide the event, for errors in the charge with reference to the ringing of the bell and Judge Cragen's statement, at folios 311, 320, and 321. HIRSCHBERG, J., dissents. In re WARD et al. (Supreme Court, Appellate Division, Second Department. October 18, 1912.) In the matter of the application of Rob |
