PER CURIAM. Judgment affirmed, with costs. CHASE, COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur. when on that day a written agreement was ex-rowing of the road. Edmund B. Jenks, of ecuted by plaintiff and Thomas B. McIntire, In- Whitney Point, and Robert S. Parsons, of corporated, that payment of the note be post- Binghamton, for appellant. Thomas B. Kattell, poned to August 1st. On November 21, 1914, of Binghamton, for respondent. defendant Foster obtained an order opening his default in pleading upon payment of costs and thereafter served his answer. The defense was that the extension of the time of payment of the note made after action brought and default on the part of the defendants, abrogated the right of the plaintiff to hold the guarantor liable, as that right existed at the WILSON, Appellant, v. AGER et al., Retime of the commencement of the action. Fred-spondents. (Court of Appeals of New York. erick B. Van Kleeck, Jr., of White Plains, for Nov. 20, 1917.) Appeal from a judgment of the appellant. Jonathan Holden, of Pleasantville, Appellate Division of the Supreme Court in for respondent. the Fourth Judicial Department (166 App. Div. 969, 151 N. Y. Supp. 1150), entered February 4, 1915, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term. The plaintiff is the owner of an electric light and power plant situate in the village of Port Leyden and on the easterly side of Rock Is PER CURIAM. Judgment affirmed, with costs. CHASE, COLLIN, CUDDEBACK, CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur. WESTMINSTER PRESBYTERIAN land, which is an island in the Black river, and CHURCH OF WEST TWENTY-THIRD is formed by a branch or arm flowing westerly STREET v. TRUSTEES OF PRESBYTERY OF NEW YORK. (Court of Appeals of New York. Jan. 15, 1918.) Cross-appeals from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (170 App. Div. 439, 156 N. Y. Supp. 186), entered December 23, 1915, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action in ejectment to recover the possession of premises in West Twenty-Third street, borough of Manhattan, New York, upon which is erected a church known as the Westminster Presbyterian Church of West Twenty-Third Street and a rectory connected therewith, and for damages for the use and occupation of the property. See 211 N. Y. 214, 105 N. E. 199. Rush Taggart and Henry W. Jessup, both of New York City, for trustees of Presbytery of New York. Richmond J. Reese, of New York City, for Westminster Presbyterian Church. PER CURIAM. Judgment modified, in accordance with opinion in Trustees of Presbytery v. Westminster Presbyterian Church, 222 N. Y. 305, 118 N. E. 800, by substituting in place of the provision marked "Second" in the judgment of the Trial Term a provision which shall read as follows: "Second. Plaintiff's title to and possession of said property are subject to the provisions of the Religious Corporations Law of the state of New York, including article 4 of said law"-and, as so modified, said judgment is affirmed, without costs. HISCOCK, C. J., and CHASE, CUDDEBACK, HOGAN, POUND, and ANDREWS, JJ., concur. MCLAUGHLIN, J., not sitting. at a certain point and above said electric light plant and flowing around the island and again uniting with the main stream farther down and below plaintiff's light plant. The said electric light plant is situate at the lower end of the island, which is owned by plaintiff. The upper end of the island is owned by the defendant Ager. The plaintiff alleged in his complaint that the defendant Ager threatened and was about to cut a channel or spillway across his land to the main branch of the river and thus draw off and divert the water away from the plaintiff's power plant to the plaintiff's damage and injury. The claim of the plaintiff was that if the defendant Ager ever had any instrument permitting him to cut any channel of the kind he claimed he was entitled to cut, then that such right expired by a limitation in the instrument which granted said license. P. H. Fitzgereld and F. J. De La Fleur, both of Utica, for appellant. Henry Purcell, of Watertown, for respondents. PER CURIAM. Judgment affirmed, with costs. HISCOCK, C. J., and COLLIN, CUDDE-. BACK, HOGAN, POUND, and McLAUGHLIN, JJ., concur. ANDREWS, J., not sitting. WINNE, Respondent, v. ERIE R. CO., Appellant. (Court of Appeals of New York. Nov. 20, 1917.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (169 App. Div. 960, 153 N. Y. Supp. 1150), entered June 10, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action under the federal Employers' Liability Act to reWHEELER, Respondent, v. TOWN OF cover for the death of plaintiff's intestate alBARKER, Appellant. (Court of Appeals of leged to have been occasioned through the negNew York. Jan. 8, 1918.) Appeal from a ligence of defendant, his employer. The intesjudgment of the Appellate Division of the Su- tate, a brakeman on one of defendant's trains, preme Court in the Third Judicial Depart- was killed through the alleged failure of the ment (166 App. Div. 953, 151 N. Y. Supp. engineer to obey slow down and stop signals 1150), entered January 16, 1915, affirming a transmitted to him by the head brakeman, judgment in favor of plaintiff entered upon a whereby the train was backed with such force verdict in an action to recover for personal in- against two cars that were standing, with juries and for damage to an automobile alleged brakes on, to the south of a crossing that they to have been caused through defendant's negli- were driven over the highway and coupled to gence in failing to properly protect an alleged cars standing to the north of it. It turned dangerous embankment on one of its highways. out that when the deceased reached the rear It was alleged that plaintiff in an automobile end of the two cars standing to the south of owned and driven by him was traveling south- the highway he found the end of the air hose erly along a narrow dugway in the defendant dragging on the ground from the end of the car town and went over an unprotected embank- next the highway and as he stooped to hook it ment immediately after reaching a point where up, the coupling was made on the other end there was not only a change in the direction of the cars and he was knocked down with the Philip A. Rorty, of Goshen, for appellant. I was a fracture of the oscalcis and inflamma- costs. YOUSEY, Respondent, v. QUEEN INS. CO. OF AMERICA, Appellant. (Court of Appeals of New York. Dec. 21, 1917.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (166 App. Div. 971, 151 N. Y. Supp. 1151), entered February 16, 1915, affirming a judgment in favor of plaintiff entered upon a verdict. The complaint alleged that on or about the 1st day of June, 1909, the defendant, through Joseph V. Baker, its agent, at Gouverneur, made and executed a certain policy of insurance, by the terms of which the defendant agreed to insure the sawmill of the plaintiff, located at Aldrich, N. Y., against loss or damage by fire, in the sum of $1,000, and that on the 30 day of June, 1909, a fire occurred destroying the said sawmill, causing a loss to the plaintiff of more than the total amount of insurance thereon, and alleging that no proofs of loss were served pursuant to the standard form of fire insurance policy on account of the fact that the said Joseph V. Baker refused to disclose the identity of the defendant to the plaintiff, the plaintiff having no knowledge as to what companies said Joseph V. Baker had bound, if any. The complaint further alleged that the action was not begun within one year from the date of the fire for the same reason, and demanded judgment against the defendant in the sum of $1,000, with interest and costs. The answer of the defendant denied the making of said contract of insurance, and set up the defenses that no proof of loss was served upon the defendant, and that the action was not brought within one year after the fire, the limitation prescribed by the standard fire insurance policy, and demanded judgment that the complaint be dismissed. Jerome L. Cheney, of Syracuse, for appellant. Wilbur A. Porter, of Carthage, for respondent. PER CURIAM. Judgment affirmed, with costs. CHASE, COLLIN, HOGAN, POUND, and CRANE, JJ., concur. HISCOCK, C. J., and MCLAUGHLIN, J., dissent. tion of the ankle joint. The decisive issue of Decree af CINCINNATI TRACTION CO. et al. V. CITY OF CINCINNATI. (No. 15509.) (Supreme Court of Ohio. July 3, 1917.) Error to Court of Appeals, Hamilton County. Joseph Wilby and Ellis G. Kinkead, both of Cincinnati, for plaintiffs in error. Charles A. Groom, City Sol., and Constant Southworth, Asst. City, Sol., both of Cincinnati, for defendant in error. PER CURIAM. Petition dismissed for the following reasons: (1) The record does not present any constitutional question substantially affecting the rights of the parties; (2) The Court of Appeals was without jurisdiction to entertain the appeal. Petition dismissed. NICHOLS, C. J., and WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. CITY OF CINCINNATI et al. v. CORMANY et al. (No. 15402.) (Supreme Court of Ohio. April 17, 1917.) Error to Court of Appeals, Sol., and Frank K. Bowman, Asst. City Sol., Hamilton County. Charles A. Groom, City both of Cincinnati, for plaintiffs in error. Walter C. Muhlhauser and Edward A. Hafner, of Cincinnati, for defendants in error. PER CURIAM. It appearing from the record that no final judgment has been entered in the Court of Appeals in either of the three consolidated cases out of which this proceeding in error arises, it is ordered by the court, sua sponte, that the former order of this court, directing the Court of Appeals of Hamilton county to certify its record be and the same is hereby, vacated, set aside, and held for naught, and a rehearing of the motion upon which said order was made is granted, and the petition in error filed in pursuance of said order is dismissed. And the court coming now to the consideration of said motion, the court finds that there is no final order or judgment entered in either of these consolidated causes in the Court of Appeals of Hamilton county, and the motion to order certification of the record has been prematurely filed, and the same is therefore dismissed without consideration on the merits and without prejudice, at the costs of plaintiffs in error. Cause dismissed. NICHOLS, C. J., and WANAMAKER, NEWWALSH'S CASE. In re LONDON GUAR-MAN, JONES, MATTHIAS, JOHNSON, and ANTEE & ACCIDENT CO., Limited. (Su- DONAHUE, JJ., concur. preme Judicial Court of Massachusetts. Suffolk County. Feb. 7, 1918.) Appeal from Superior Court, Suffolk County. Proceedings for compensation under the Workmen's Compensation Act by Annie Walsh, widow of Coleman Walsh, deceased employé, opposed by the Columbia Steel Shafting Company, the employer, and the London Guarantee & Accident Company, the insurer. Compensation was denied, the decision of the Industrial Accident Board confirmed by the superior court, and claimant appeals. Decree affirmed. G. F. Tucker, of Boston, for plaintiff. PER CURIAM. The deceased employé sustained injury arising out of and in the course of his employment by a subscriber under the Workmen's Compensation Act. That injury EMIG v. CITY OF TOLEDO. (No. 15420.) (Supreme Court of Ohio. April 3, 1917.) Error to Court of Appeals, Lucas County. David B. Eppstein and William H. McLellan, Jr., both of Toledo, for plaintiff in error. Harry S. Commager and Charles T. Lawton, both of Toledo, for defendant in error. PER CURIAM. This court finds from the record that the judgment of the Court of Appeals is in effect an adjudication that the judgment of the court of common pleas is against the weight of the evidence and the judgment of reversal is affirmed. But this court on the authority of Stugard, Adm'r, v. P., C., C. & St. L. Ry. Co., 92 Ohio St. 318, 110 N. E. 956, is of the opinion that the cause should be submitted to a jury, and therefore the Court of Appeals erred in rendering final judgment, and the final judgment entered by the Court of Appeals is hereby reversed. Coming now to render the judgment that the Court of Appeals should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas be, and the same is hereby, reversed, and this cause is remanded to the court of common pleas for further proceedings according to law. Judgment accordingly. WANAMAKER, NEWMAN, MATTHIAS, and JOHNSON, JJ., concur. HAMMOND v. MaGIRL et al. (No. 15341.) (Supreme Court of Ohio. March 20, 1917.) Error to Court of Appeals, Coshocton County. W. S. Merrell and Joseph L. McDowell, both of Coshocton, and Cobb, Howard & Bailey, of Cincinnati, for plaintiff in error. Lloyd S. Leech, of Coshocton, James Joyce, of Cambridge, and Milo C. Ely, of Coshocton, for defendants in error. PER CURIAM. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is, reversed on the authority of King, Gilbert & Warner v. Ship Building Co., 50 Ohio St. 320, 34 N. E. 436. And coming now to render the judgment which the Court of Appeals should have rendered, it is hereby ordered and adjudged that the judgment of the court of common pleas herein be, and the same is hereby reversed, and this cause is remanded to the court of common pleas, with instructions to enter judgment in favor of the plaintiff in error herein against the board of education for the amount of its claim, as shown by its pleading, with interest from January 22, 1914, and for further proceedings according to law. Judgment reversed. NICHOLS, C. J., and NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. HARTH V. DRUGGAN. (No. 15381.) (Supreme Court of Ohio. April 3, 1917.) Error to Court of Appeals, Hamilton County. Ireton & Schoenle and Oscar W. Kuhn, all of Cincinnati, for plaintiff in error._ J. F. Atwood, of Columbus, and Sanford A. Headley, of Cincinnati, for defendant in error. PER CURIAM. Judgment affirmed, on authority of Bauman v. Kiskadden, Trustee, 94 Ohio St. 130, 113 N. E. 588. Judgment affirmed. NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. HAYES v. HOCKING VALLEY RY. CO. (No. 15394.) (Supreme Court of Ohio. June 26, 1917.) Error to Court of Appeals, Lucas County. B. A. Hayes and C. A. Seiders, both of Toledo, for plaintiff in error. Brown, Geddes, Schmettau & Williams, of Toledo, and Wilson & Rector, of Columbus, for defendant in error. PER CURIAM. Dismissed, on ground that no constitutional question is involved. NICHOLS, C. J., and NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. HOLLOWELL V. SCHRADEN. (No. 15491.) (Supreme Court of Ohio. June 26, 1917.) Error to Court of Appeals, Butler County. Michael Minges, of Cincinnati, and tiff in error. Jno. Clinton Egbert and E. A. Belden, both of Hamilton, for defendant in error. PER CURIAM. It is ordered and adjudged by this court that the judgment of the said Court of Appeals be, and the same hereby is, reversed on the authority of Wagner v. Armstrong et al., 93 Ohio St. 443, 113 N. E. 397, and this cause is remanded to the Court of Appeals, with instructions to overrule the motion on file therein to dismiss the appeal of Eliza Ann Hollowell, executrix of the last will and testament of Francis M. Hollowell, deceased, from the court of common pleas. Judg ment reversed. NICHOLS, C. J., and WANAMAKER, NEWDONAHUE, JJ., concur. MAN, JONÉS, MATTHIAS, JOHNSON, and JOHN A. ROEBLING'S SONS CO. v. TROY TRUST CO. et al. (No. 15325.) (Supreme Court of Ohio. March 20, 1917.) Error to Court of Appeals, Marion County. Wilkin, Cross & Daoust and Tolles, Hogsett, Ginn & Morley, all of Cleveland, for plaintiff in error. Finley & Gallinger, of Bucyrus, Paul Bonynge, of New York City, and George B. Scofield, and D. R. Crissinger, both of Marion, for defendants in error. PER CURIAM. Judgment affirmed. WANAMAKER, NEWMAN, JONES, and JOHNSON, JJ., concur. KAMMANN et al. v. KAMMANN et al. (No. 15499.) (Supreme Court of Ohio. June 26, 1917.) Error to Court of Appeals, Hamilton County. Lorbach & Garver and Herrlinger & Dixon, all of Cincinnati, for plaintiffs in error. Wm. Jerome Kuertz and Kinkead & Rogers, all of Cincinnati, for defendants in error. PER CURIAM. Dismissed, on ground that no constitutional question is involved. Dismissed. NICHOLS, C. J., and WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. LEATHERMAN v. BOARD OF EDUCATION OF ALLEN COUNTY et al. (No. 15395.) (Supreme Court of Ohio. April 17, 1917.) Error to Court of Appeals, Allen County. W. B. Ritchie and T. R. Hamilton, both of Lima, for plaintiff in error. O. O. Barr, Pros. Atty., and Welty & Downing, all of Lima, for defendants in error. PER CURIAM. Judgment affirmed, on authority of Cline v. Martin et al., 94 Ohio St., 420, 115 N. E. 37. Judgment affirmed. NICHOLS, C. J., and WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. MOTON et al. v. KESSENS. SAME v. DEWELL et al. (Supreme (Nos. 15398, 15399.) Court of Ohio. March 20, 1917.) Error to Court of Appeals, Mercer County. William E. Henderson, of Troy, and L. H. Shipman, of Indianapolis, Ind., for plaintiffs in error. John W. Loree, P. E. Kenney, and John G. Romer, all of Celina, for defendants in error. See PER CURIAM. Judgments affirmed. journal entry. (Same journal entry in both cases.-Reporter.) Journal entry: It is ordered and adjudged by this court that the judgment of the said court of appeals be, and the same is hereby, affirmed, for the reasons: First. That the will of John Randolph, deceased, vested in William Leigh, as executor, full power, authority and discretion to determine the location, plans, methods and means of of John Randolph in some state or territory 1 of the United States, other than the state of Virginia, in which state the testator resided at the time of his death, all of which not only appears by the direct terms of the will, but by the further provision therein, that "no inventory or appraisement be made of my estate, and no security shall be required of my said executor for the faithful discharge of the trust imposed in him-his own character being the best security, and when that is wanting, all other is unavailing." That in the exercise of the absolute and unlimited discretion so vested in him, the said William Leigh, as such executor, purchased after the death of John Randolph, the lands described in the petition, together with a large amount of other land adjoining and surrounding the same, for the evident purpose of settling the manumitted slaves of John Randolph upon this land, and in pursuance of such purpose undertook to transport them and settle them upon it, but that the people then living in the locality of these lands, with force and arms and by menaces and threats of violence, interrupted the transportation of these former slaves while en route to these lands and before they had reached the same, and compelled the said William Leigh, as executor, in the interest and safety of these people to abandon these lands for the purposes for which he had purchased the same, and seek another locality, in which they might be settled in peace and safety. That the said William Leigh, executor, in the exercise of the discretion vested in him by the will of John Randolph, deceased, had the right and authority at any time before putting these former slaves in possession of these lands, for reasons which might be satisfactory to him, abandon this location and select another in which to settle these former slaves, and that the conditions that confronted him at that time, and the necessity of making such change in location were so apparent, that he not only exercised a sound discretion in doing so, but in the interest of the peace and safety of these former slaves, he was absolutely compelled to make such change in his original plans, and seek another location for their homes. That the lands he had so purchased, and taken the title in his own name, having thereby become absolutely useless to him for the purposes for which he had purchased the same, he had full power and authority to sell and dispose of these lands, and apply the proceeds arising from such sale, to the cost of transporting and settling these former slaves in homes in other localities, and that in the absence of proof to the contrary, the presumption obtains that the funds were properly expended in accordance with the terms and provisions of the will, in so far as the amount received therefrom was sufficient for these purposes, and that these beneficiaries of the will of John Randolph received in full the benefits of all the funds arising from the sale of these lands. Second. That said manumitted slaves of John Randolph never were put in possession or occupation of these lands, nor were the same or any part thereof ever allotted to any individual in such manner as to vest in any one of these individuals, any right, title, or interest in any specific part or parcel of this land. That but few of these manumitted slaves were entitled under the will of John Randolph, to receive land, and they could acquire no right or title in law or equity to any particular land until the same was specifically aparted or allotted to them. That the rights of those entitled to land were not rights in common, but individual and specific rights to particular lands after the same had been allotted to each in severalty, and after such allotment their rights thereto either at law or in equity must be established in a separate and individual action and not as a class. Third. That John Randolph was never seised of these lands in his lifetime, that the title was taken in the name of William Leigh, executor, who was vested with full right and authority by the will of John Randolph, to dispose of the same before putting these manumitted slaves in occupation thereof and devote the proceeds of such sale to the same purposes for which he had acquired the land, and that if any trust arose in these lands by reason of the purchase of the same with trust funds, that trust was divested by their sale occasioned by the necessity of the conditions that confronted the trustee in his efforts to administer this trust properly and effectively, and attached to the purchase money received therefor. Fourth. That if under the laws of Virginia, it was necessary for William Leigh, executor, to obtain the consent and order of a court of competent jurisdiction to sell lands of which his testator had not died seised, but were purchased by the executor after the death of his testator in pursuance of the authority and discretion vested in him by the will, the presumption obtains that such order and direction of a court of competent jurisdiction was obtained prior to the sale and conveyance of the lands, and that he fully accounted for the proceeds of the sale; that no evidence was offered to the contrary, and that by reason of the fact that the records of the proceedings of the executor and the settlements made by him were destroyed by fire when the courthouse in Richmond, Va., was burned almost 50 years before the commencement of this action, the burden is upon the plaintiffs to prove by preponderance of the evidence that no such order was obtained and that no record thereof was ever made. Fifth. That no evidence was offered tending to prove, that William Leigh, executor, had not fully, properly, and honestly administered his trust, according to intent and purpose of the testator and according to the terms and directions contained in the will of John Randolph, or that the beneficiaries of the trust created by this will have not received the full benefit of the entire trust fund including the part invested in these lands and restored to the trust funds from the proceeds of their sale. Sixth. That it appears from the evidence, that these manumitted slaves were fully advised of their destination and of the fact that these lands had been purchased for their use in Mercer county, and if William Leigh as executor had no power or authority to sell said lands and apply the proceeds of the sale of their uses in other localities, that his act in so doing was an open, notorious violation of his trust, known to them and acquiesced in by them at the time, and this action is barred by the statute of limitations. NICHOLS, C. J., and WANAMAKER, NEWMAN, JONES, JOHNSON, and DONAHUE, JJ., concur. MATTHIAS, J., not participating. OHIO ASS'N OF ICE CREAM MANUFACTURERS v. PUBLIC UTILITIES COMMISSION OF OHIO. (No. 15449.) (Supreme Court of Ohio. June 26, 1917.) Error to Public Utilities Commission. Complaint by the Ohio Association of Ice Cream Manufacturers, filed with the Public Utilities Commission of Ohio. From an order of the Commission, holding that increased rates and charges proposed in the schedule of certain carriers were just and reasonable, the Association brings error. Order affirmed. Harry C. Barnes, of Cincinnati, and John J. Chester, of Columbus, for plaintiff in error. Joseph McGhee, Atty. Gen., Freeman T. Eagleson, of Cambridge, and Branch P. Kerfoot, of New York City, for defendant in error. PER CURIAM. In 1916, the American Express Company, in connection with the National Express Company, the Adams Express Company, and Wells-Fargo & Company Express, in and by their certain tariff publications filed with the Public Utilities Commission of Ohio, to become effective July 1, 1916, sought the SCHMIDT v. SCHOPMEIER. (No. 15403.) (Supreme Court of Ohio. March 20, 1917.) Error to Court of Appeals, Hamilton County. Charles Broadwell, of Cincinnati, for plaintiff in error. Healy, Ferris & McAvoy and Frank J. Dorger, all of Cincinnati, for defendant in error. PER CURIAM. This court finds that it is shown by the record that the court of common pleas held that the deed which purported to Schmidt, in the said real estate did not convey convey the interest of the plaintiff, Charles any right, title or interest of the plaintiff in said premises to the defendant, and the record further shows that the Court of Appeals cor cancellation of the then existing rates on the shipment of ice cream in the state of Ohio and returned empty containers in intrastate traffic in the state of Ohio, and the establishment of the interstate schedule of rates on these commodities. On June 14, 1916, plaintiff in error, a voluntary association of persons and firms engaged in the wholesale manufacture of ice cream in the state of Ohio, filed a complaint with the Utilities Commission in which it alleged that the proposed new rates of the express companies were largely in excess of the existing rates, and unjust, discriminatory and unreasonable, and would impose an undue burden upon such traffic and necessarily raise the price to the consumer and lessen the produc-rectly held that while said deed did not in its tion and consumption of a healthful, wholesome legal effect operate to transfer the title held and nutritious food product. The prayer of by the plaintiff to the said premises, it did the complaint was that the Commission susoperate as a contract by him to convey the pend the operation of the schedules which were same to the defendant. This court further finds to become effective July 1, 1916, and postpone that, by consenting to the consideration of the the use and operation of such rates and charges cause by two judges of the Court of Appeals, pending a full hearing and investigation con- the plaintiff in error, Schopmeier, waived the cerning the propriety of such rates and charges. assignment of error in his petition in error, On July 19, 1916, the matter was heard before that the judgment of the court of common the Commission upon the original papers and pleas was against the weight of the evidence the evidence, and on September 26, 1916, the and of the equivalent assignment that it was Commission held that the increased rates and charges as proposed in the schedules in said court finds that the testimony of the plaintiff, not sustained by sufficient evidence. But this proceeding were just and reasonable and ordered that the orders theretofore entered in tion in his reply, that the said deed was obif wholly undisputed, fails to sustain the allegasaid proceeding suspending the operation of tained from him by fraud and misrepresentathe said schedules be vacated and set aside. tion. The circumstances connected with the An application for a rehearing was denied on execution of the said purported deed, as reOctober 30, 1916, and plaintiff in error there-lated by the plaintiff, are not sufficient in law upon filed a petition in this court asking that to sustain the allegation referred to. the final order of the Commission be reversed, therefore ordered and adjudged by this court vacated or modified. There have been filed in that the judgment and order of the Court of this court a transcript of the journal entries, Appeals, reversing the judgment of the court the original papers, and a certified transcript of common pleas, be, and the same is hereby, of all the evidence adduced in the hearing be- affirmed, and the cause is hereby ordered to be fore the Commission. We have examined the remanded to the court of common pleas, with evidence, consisting of exhibits and the testi-directions to permit an issue to be made up mony of a number of witnesses, bearing upon the question of the fairness and reasonableness of the rates proposed by the express companies. There is a conflict in the testimony of the witnesses, but we are unable to say upon a consideration of the whole record that the order made by the Commission is unlawful or unreasonable. Order affirmed. NICHOLS, C. J., and WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. PENNSYLVANIA R. CO. v. HOBBS. (No. 15406.) (Supreme Court of Ohio. March 6, 1917.) Certified by Court of Appeals, Cuyahoga County. Squire, Sanders & Dempsey and Thomas M. Kirby, all of Cleveland, for plaintiff in error. Harry C. Gahn and C. A. Riemenschneider, both of Cleveland, for defendant in error. PER CURIAM. Judgment affirmed, on authority of Ash v. Marlow, 20 Ohio, 119. Judgment affirmed. NICHOLS, C. J., and WANAMAKER, NEW. MAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. RIGOT V. CITY OF EAST LIVERPOOL. (No. 15524.) (Supreme Court of Ohio. June 26, 1917.) Error to Court of Appeals, Columbiana County. W. F. Lones, of East Liverpool, and J. C. Hanley, of Columbus, for plaintiff in error. R. G. Thompson, City Sol., of East Liverpool, for defendant in error. PER CURIAM. Judgment affirmed, on authority of State ex rel. Smith v. Smith, 69 Ohio St. 196, 68 N. E. 1044. Judgment affirmed. NICHOLS, C. J., and WANAMAKER, NEWMAN, JONES, MATTHIAS, JOHNSÓN, and It is concerning said contract and its enforcement, and for further proceedings according to law. Judgment affirmed. NICHOLS, C. J., and NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. SLUSSER v. BAKER. (Su (No. 15638.) preme Court of Ohio. July 3, 1917.) Error to Court of Appeals, Summit County. Payer, Winch, Rogers & Minshall, of Cleveland, for plaintiff in error. Decker & Platt, of Barberton, for defendant in error. PER CURIAM. It is ordered and adjudged by this court that the judgment of the Court of Appeals be, and the same hereby is, reversed, for the reason that it appears from the record that the contestor was not entitled to judgment against the contestee in this proceeding. Even if it be proven that there was a violation of the section of the statute under which this proceeding is brought, it would not constitute a ground for removal. And, coming now to render the judgment that the Court of Appeals should have rendered, it is hereby ordered and adjudged that the judgment of the hereby, affirmed. court of common pleas be, and the same is Judgment of the Court of Appeals reversed, and that of the court of common pleas affirmed. NICHOLS, C. J., and NEWMAN, JONES, MATTHIAS, JOHNSON, and DONAHUE, JJ., concur. WANAMAKER, J., not participating. SOLZE V. SOLZE. (No. 15304.) (Supreme Court of Ohio. March 6, 1917.) Error to Court of Appeals, Crawford County. L. C. |