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PER CURIAM. Judgment and order reversed, and new trial granted; costs to abide the event. Decedent's statements as to his previous illness and as to the physicians that he had consulted within five years prior to his application for in

Action by Bernard Schweid and another against Julius S. Berkman. No opinion. Orders entered, substituting Max Schweid and Harry A. Schweid, as executors, etc., of Bernard Schweid, deceased, as parties plaintiff in place of said deceased, and also substituting Ralph H. Cul-surance were material representations, were ley as attorney for the plaintiffs.

SCOFIELD, Appellant, v. FITZSIMMONS, Respondent. (Supreme Court, Appellate Division, Second Department. January 22, 1915.) Action by Seth W. Scofield against Jean Winifred Fitzsimmons. No opinion. Judgment affirmed, with costs.

SCOTT et al.. Respondents, v. SENECA RIVER POWER CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 20, 1915.) Action by Robert G. Scott and others against the Seneca River Power Company. No opinion. Motion to dismiss appeal granted, unless appellant file and serve briefs by January 20th. See, also, 151 N. Y. Supp. 1144.

SCOTT et al., Respondents, v. SENECA RIVER POWER CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 3, 1915.) Action by Robert G. Scott and others against the Seneca River Power Company. No opinion. Judgment affirmed, with costs. See, also, 151 N. Y. Supp. 1144.

false, and the evidence discloses that they must have been known to him to be false. If no additional evidence respecting these matters shall be given upon the new trial, defendant will be entitled to a verdict.

SHEPARD, Respondent, V. PENNSYL VANIA R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 29, 1915.) Action by J. Frank Shepard against the Pennsylvania Railroad Company.

PER CURIAM. Judgment and order affirmed, with costs. See, also, 86 Misc. Rep. 272, 148 N. Y. Supp. 388.

LAMBERT, J., dissents.

SHERWOOD et al.. Respondents. v. SHERWOOD et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. January 6, 1915.) Action by Robert J. Sherwood and another, infants, etc., against Frances M. Sherwood and others. No opinion. Order (85 Misc. Rep. 99, 147 N. Y. Supp. 205) affirmed, without costs.

SHOPIRO, Respondent, v. BERLIN et al.,
Appellants. (Supreme Court, Appellate Divi-
sion, Fourth Department. March 3, 1915.)
Action by Samuel Shopiro against Samuel N.
No opinion.
Action by S. Berlin and another.
Judgment
and order affirmed, with costs. See, also, 163
App. Div. 930, 147 N. Y. Supp. 1141.

S. C. POSNER, Inc., v. JACKSON et al. (Supreme Court, Appellate Division, First DeFebruary 11, 1915.)

partment.
C. Posner, Incorporated, against Emanuel A.
Jackson and others. No opinion. Motion de-
nied, with $10 costs. Order filed.

SEAWARD, Appellant, v. TASKER, Respondent. (Supreme Court, Appellate Division, Second Department. December 24, 1914.) Ac tion by George W. Seaward, as administrator, etc., of William Z. King, deceased, against Frederick H. Tasker. For opinion below, see 143 N. Y. Supp. 257.

PER CURIAM. Appeal transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department for hearing and determination.

BURR, J., takes no part.

SEBESTYEN, Respondent, V. CAYUGA LAKE CEMENT CO., Appellant. (Supreme Court, Appellate Division, Third Department. January 6, 1915.) Action by Steven Sebestyen against the Cayuga Lake Cement Company. No opinion. Judgment and order unanimously affirmed, with costs.

SHEARS, Respondent, v. MUTUAL LIFE INS. CO. OF NEW YORK, Appellant. (Supreme Court, Appellate Division, Second Department. December 31, 1914.) Action by Herbert C. Shears, as executor, etc., of George W. Hillson, deceased, against the Mutual Life Insurance Company of New York.

SHUART et al., Respondents, v. ERIE R. CO., Appellant. (Supreme Court, Appellate January 22, Division, Second Department. 1915.) Action by John R. Shuart and others against the Erie Railroad Company. No opinion. Motion for reargument (150 N. Y. Supp. 1112),, or for leave to appeal to the Court of Appeals, denied.

SICKELS, Appellant, v. WASHBURN, Respondent. (Supreme Court, Appellate Division, Second Department. January 22, 1915.) Action by George W. Sickels against Cyrus V. Washburn. No opinion. Order affirmed, with $10 costs and disbursements.

SILBERSTEIN et al. v. BLUM et al. (Supreme Court, Appellate Division, First Department. January 29, 1915.) Action by Solomon Silberstein and others against Harry Blu and others. No opinion. Application granted. Order signed.

SILVERSTEIN, Respondent, v. INTERNATIONAL RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 13, 1915.) Action by Abraham Silverstein, as administrator, etc., against the International Railway Company. No opinion. Judg

ment and order affirmed, with costs. See, also, SOLECKI, Respondent. V. MCKINNON 151 N. Y. Supp. 1145. DASH CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. JanuSILVERSTEIN, Respondent, v. INTERNA-ary 29, 1915.) Action by Pauline Solecki, an TIONAL RY. CO., Appellant. (Supreme infant, etc., against the McKinnon Dash ComCourt, Appellate Division, Fourth Department. pany. No opinion. Motion for leave to apMarch 3, 1915.) Action by Abraham Silver- peal (151 N. Y. Supp. 1145) to Court of Apstein, as administrator, etc., against the In- peals denied, with $10 costs. ternational Railway Company. No opinion. Motion for reargument (151 N. Y. Supp. 1144) denied, with $10 costs. Motion for leave to appeal to Court of Appeals denied.

SIMS INN CO., Inc., Appellant, v. CURTIS et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. January 6, 1915.) Action by the Sims Inn Company, Incorporated, against Lewis F. Curtis and others. No opinion. Order affirmed, with costs.

In re SLATER'S ESTATE. (Supreme Court, Appellate Division, Second Department. January 15, 1915.) In the matter of the compulsory judicial settlement of the estate of William N. Slater, deceased.

PER CURIAM. The order is sufficiently clear. If the meeting is not called at the instance of the appellant, she is not restrained from voting, if she be otherwise so entitled, upon the stock. In due course the decree of the surrogate upon the accounting may be entered by the time of the March meeting. Motion denied, without costs. See, also, 150 N. Y. Supp. 1112; In re Holzworth, 151 N. Y. Supp. 1072.

In re SLAUSON. (Supreme Court, Appellate Division, First Department. February 26, 1915.) In the matter of Edward V. Slauson. No opinion. Application granted. Settle or der on notice.

SLAWSON & HOBBS v. ASPEL. (Supreme Court, Appellate Division, First Department. January 29, 1915.) Action by Slawson & Hobbs against Anna T. Aspel. No opinion. Application denied, with $10 costs. Order signed.

SMITH, Respondent, v. BURGER, Appellant. (Supreme Court, Appellate Division Third Department. January 6, 1915.) Action by Mary Smith against Richard E. Burger. No opinion. Judgment and order unanimously affirmed, with costs.

SMITH v. NORTH AMERICAN FILMS CO. (Supreme Court, Appellate Division, First Department. January 15, 1915.) Action by Daniel J. Smith against the North American Films Company. No opinion. Application denied, with $10 costs. Order signed.

SOLECKI, Respondent, V. MCKINNON DASH CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 6, 1915.) Action by Pauline Solecki, an infant, etc., against the McKinnon Dash Company. No opinion. Judgment and order affirmed, with costs. See, also, 151 N. Y. Supp. 1145.

SOLINGER v. FEDER et al. (Supreme Court, Appellate Division, First Department. January 15, 1915.) Action by Bertha Solinger against Louis Feder and others. No opinion. Motion denied, with $10 costs. Order filed. See, also, 150 N. Y. Supp. 1113.

SOLOMON SHAPIRO MFG. CO. v. BLASBERG. (Supreme Court, Appellate Division, First Department. January 29, 1915.) Action by the Solomon Shapiro Manufacturing Company against Jacob Blasberg. No opinion. Application denied, with $10 costs. Order signed.

De

SOMMERFIELD, Respondent, v. C. J. OSBORNE CO., Appellant. Appellate Division, Second Department. (Supreme Court, cember 24, 1914.) Action by Henry Sommerfield against the C. J. Osborne Company. No opinion. Application denied, with $10 costs. See, also, 150 N. Y. Supp. 1113.

Ex parte SORIANO. (Supreme Court, Appellate Division, Second Department. January 15, 1915.) In the matter of the application of Joseph Soriano for a writ of habeas corpus. No opinion. Order dismissing writ, and remanding the defendant, affirmed, without costs. See, also, 163 App. Div. 915, 147 N. Y. Supp. 1143.

In re SOUTHWORTH et al. (Supreme Court, Appellate Division, Second Department. January 8, 1915.) In the matter of the judicial settlement of the account of Frederick A. Southworth and another, as executors, etc. No opinion. Motion denied, without costs. See, also, 150 N. Y. Supp. 509.

SPRINGER v. LION BREWERY OF NEW YORK. (Supreme Court, Appellate Division, First Department. January 29, 1915.) Action by Jonas Springer, an infant, etc., against the Lion Brewery of New York. No opinion. Motion to dismiss appeal granted, with $10 costs. Order filed.

STABINSKY et al., Respondents, v. LOWENSTEIN, Appellant (three cases). (Supreme Court, Appellate Division, Fourth Department. January 13, 1915.) Actions by Jacob Stabinsky and another against Benjamin Lowenstein. Actions Nos. 1, 2 and 3. No opinions. Orders affirmed, with $10 costs and disbursements.

STADLER, Respondent, v. JAMES EVERARD'S BREWERIES, Appellant. (Supreme Court, Appellate Division, First Department. February 19, 1915.) Action by Albert M. Stadler against James Everard's Breweries. F. S.

Marsell, of New York City, for appellant. H. | City, for appellant. A. C. Hume, of New York
A. Rubino, of New York City, for respondent. City, for respondent.
No opinion. Judgment and order affirmed,
with costs. Order filed. See, also, 163 App.
Div. 887, 147 N. Y. Supp. 1143.

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STEVENS, Respondent, v. MEREDITH, Appellant. (Supreme Court, Appellate Division, First Department. February 19, 1915.) Action by Thomas N. Stevens against Daniel W. Meredith. C. E. Kelley, of New York City, for appellant. E. D. Webb, of New York City, for respondent. No opinion. Judgment affirmed, with costs. Order filed.

STEWART, Respondent, v. ECLIPSE BICYCLE CO., Appellant, et al. (Supreme Court, Appellate Division, Third Department. January 15, 1915.) Action by Gardiner Stewart against the Eclipse Bicycle Company and others. No opinion. Judgment unanimously affirmed, with costs.

STEWART et al., Respondents, v. TITLE GUARANTY & SURETY CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 6, 1915.) Action by Alexander M. Stewart and another against the Title Guaranty & Surety Company.

PER CURIAM. Judgment affirmed, with costs. This court finds and decides that the building contract, for the performance and fulfillment of which the contract in question was given, was never completed or performed within the meaning of the provision contained in the contract in question, and that therefore the six months limitation does not apply, and so far as any findings of the referee are inconsistent therewith the same are disapproved.

LAMBERT and MERRELL, JJ., dissent. STILWELL, Respondent, v. STILWELL, Appellant. (Supreme Court, Appellate Division, Second Department. January 8, 1915.) Action by Frederick H. Stilwell against Alma P. Stilwell. No opinion. Motion granted, without costs. See, also, 150 N. Y. Supp. 1113.

STONE, Respondent, v. MOAPA REALTY CO., Appellant. (Supreme Court, Appellate Division, First Department. January 15, 1915.) Action by Florence Stone against the Moapa Realty Company. M. S. Hoffman, of New York

PER CURIAM. Order modified, by requir ing plaintiff to give an additional bond in the sum of $500 to pay any judgment which may be obtained against her for rent for the term of the hiring, and, as so modified, affirmed, without costs. Settle order on notice.

SCOTT, J., dissents, and votes for reversal.

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SUN-RAY WATER CO., Respondent, v. INTERNATIONAL MAGAZINE CO., Appellant. (Supreme Court, Appellate Division, First Department. January 29, 1915.) Action by the Sun-Ray Water Company against the International Magazine Company. J. T. Sturdevant, of New York City, for appellant. W. E. Collins, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements, with leave to defendant to withdraw demurrer and to answer, on payment_of costs in this court and in the court below. Order filed.

SUSS, Respondent, v. FARLEY, State Com'r of Excise, Appellant. (Supreme Court, Appellate Division, Second Department. February 5, 1915.) Action by Hyman Suss against William W. Farley, as State Commissioner of Excise, etc. No opinion. Judgment reversed on reargument, with costs of the appeal, and complaint dismissed, with costs, on the authority of Suss v. Farley, etc., 164 App. Div. 161, 149

N. Y. S. 661, decided November 6, 1914. See, Second Department. December 24, 1914.) Acalso, 150 N. Y. Supp. 1114. tion by Thomas P. Tierney against Jacob Ruppert.

SUTTON, Respondent, v. STORY, Appellant. (Supreme Court, Appellate Division, Fourth Department. January 29, 1915.) Action by Ernest Sutton against Frank Story. No opinion. Judgment and order affirmed, with costs.

SWANSON, Respondent, v. VON HOVELING AMERICAN COMPOSITION CO., Appellant. (Supreme Court, Appellate Division, Second Department. December 31, 1914.) Action by Charles O. Swanson against the Von Hoveling American Composition Company. PER CURIAM. Judgment and order affirmed, with costs.

THOMAS, J., dissents, on account of the refusal of the court to charge as requested at folio 238.

TASHJIAN, Respondent, v. SPENGEMAN, Appellant. (Supreme Court, Appellate Division, First Department. February 19, 1915.) Action by Mariam Tashjian, as administratrix, against Edward A. Spengeman. D. Steckler, of New York City, for appellant. G. S. Kebabian, of New York City, for respondent.

PER CURIAM. Judgment and order reversed, and new trial granted, with costs to appellant to abide event, on the ground that the finding of defendant's negligence and of decedent's freedom from contributory negligence are against the evidence. Settle order on notice. INGRAHAM, P. J., concurs in result.

TAYLOR, Respondent, v. NIGHTINGALE, Appellant. (Supreme Court, Appellate Division, Second Department. December 31, 1914.) Action by Edward M. Taylor against Charles T. Nightingale and another. Action No. 1. No opinion. Judgment and order of the County Court of Dutchess County affirmed, with costs. See, also, 151 N. Y. Supp. 1147.

TAYLOR, Respondent, v. NIGHTINGALE et al., Appellants. (Supreme Court, Appellate Division, Second Department. December 31, 1914.) Action by Edward M. Taylor against Charles T. Nightingale and another. Action No. 2. No opinion. Judgment and order of the County Court of Dutchess County affirmed, with costs. See, also, 151 N. Y. Supp. 1147.

THOMSON, Appellant, V. JACKSONSTEINWAY CO., Respondent, et al. (Supreme Court, Appellate Division, First Department. February 5, 1915.) Action by Burton Thomson against the Jackson-Steinway Company, impleaded. P. Bonynge, of New York City, for appellant. B. Scharps, of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs. Order filed.

LAUGHLIN, J., dissents.

TIERNEY, Respondent, v. RUPPERT. Appellant. (Supreme Court, Appellate Division,

PER CURIAM. Judgment and order affirmed, with costs.

there is no evidence of actual malice. CARR, THOMAS, J., dissents, upon the ground that J., not voting.

In re TILBURY. (Supreme Court, Appellate Division, Fourth Department. January 20, 1915.) In the matter of the accounting of Dora C. Stephens Tilbury, as executrix, etc., of Walter A. Stephens, deceased. No opinion. Decree affirmed, with costs.

EAST COAST OIL CO., S. A., Respondent, TOLTEC MEXICAN OIL CO., Appellant, v. et al. (Supreme Court, Appellate Division, First Department. January 29, 1915.) Action by the Toltec Mexican Oil Company against the East Coast Oil Company, S. A., impleaded with others. C. G. Walter, of New York City, for appellant. J. A. Haughwout, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

TOMPKINS V. INTERBORO RAPID TRANSIT CO. (Supreme Court, Appellate Division, First Department. January 15, 1915.) Action by William M. Tompkins against the Interboro Rapid Transit Company. No opinion. Application denied, with $10 costs. Order signed. See, also, 150 N. Y. Supp. 219.

TOMPKINS COUNTY FIRE INS. CO., Respondent, v. MALONEY, Appellant. (Supreme Court, Appellate Division, Third Department. January 6, 1915.) Action by the Tompkins County Fire Insurance Company against J. Edward Maloney. No opinion. Judgment unanimously affirmed, with costs.

TOMPSON, Respondent, v. THOMPSON, Appellant. (Supreme Court, Appellate Division, Second Department. December 24, 1914.) Action by Bertha Tompson against Edward Thompson. No opinion. Motion denied. The decision of this court dismissed the complaint for failure of proof, and not upon the merits.

TOMS, Respondent, v. TOWN OF NEWFANE, Appellant. (Supreme Court, Appellate Division, Fourth Department. January 29, 1915.) Action by Imo W. Toms against the Town of Newfane. No opinion. Motion to amend order of reversal (155 App. Div. 881, 139 N. Y. Supp. 1147), so as to state that the reversal was made upon questions of law only, and that the facts had been examined and no error found therein, denied, without costs. See, also, 155 App. Div. 948, 140 N. Y. Supp. 1148.

TOTH, Respondent, v. HORSFALL, Appellant. (Supreme Court, Appellate Division, Second Department. December 24, 1914.) Action by John Toth against William H. Horsfall. No opinion. Motion to dismiss appeal granted, with costs.

versed, and award of commissioners confirmed, without costs to either party. The court determines that, even upon the assumption that the value of the liquor tax certificate should be included in the value of the premises, nevertheless the award is adequate.

TOWNSEND, Respondent, v. PERRY et al.,, Mack and another. No opinion. Order reAppellants. (Supreme Court, Appellate Division, Fourth Department. March 3, 1915.) Action by Frank B. Townsend against Ezekiel C. Perry and others. No opinion. Motion granted to permit appellants to dispense with the printing of former appeal books upon this appeal, without costs. See, also, 164 App. Div. 963, 149 N. Y. Supp. 494.

TRAVIS v. KNOX TERPEZONE CO. et al. (Supreme Court, Appellate Division, First Department. February 11, 1915.) Action by Frank H. Travis against the Knox Terpezone Company and others. No opinion. Motion granted. Questions certified. Order filed. See, also, 150 N. Y. Supp. 621.

TROIANO, Respondent, v. GALASSO et al., Appellants. (Supreme Court, Appellate Division, Second Department. February 11, 1915.) Action by Agostino Troiano against Antonio Galasso and another.

PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs, without prejudice to a renewal of the motion at Special Term upon further papers. The reversal is upon the ground that, the partnership having been denied, there was no satisfactory evidence in this record that there was a partnership in fact between the parties. Any funds in the custody of the receiver to be subject to the further order of the Special Term.

RICH, J., not voting.

In re THANASULES. (Supreme Court, Appellate Division, First Department. February 11, 1915.) In the matter of Antonio A. Thanasules, deceased. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

In re TULLOCH. (Supreme Court, Appellate Division, First Department. February 26, 1915.) In the matter of George H. Tulloch. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

UNITED STATES DRAINAGE & IRRIGATION CO. v. HAWLEY et al. (Supreme Court, Appellate Division, Second Department. January 29, 1915.) Action by the United States Drainage & Irrigation Company against Fred Hawley and others.

New

PER CURIAM. Order affirmed, with $10 costs and disbursements. Plaintiff's moving papers showed suflicient grounds to examine defendants Hawley and Moran, under section 872 of the Code of Civil Procedure. By such means plaintiff can find out for whom these defendants acted, and ascertain the persons who entered into this arrangement or association for draining these marshes. Mason v. York Review Publishing Co., 154 App. Div. 651, 139 N. Y. Supp. 639; Alden v. O'Brien, 138 App. Div. 249, 122 N. Y. Supp. 910. The affidavit gave the residence of the present defendants, Hawley and Moran. It was unnecessary to set forth the residence of others named as defendants, but not yet served with process. The order providing for issue of a subpoena duces tecum, if it became necessary, was in proper form. Crompton v. Dobbs, 119 App. Div. 331, 104 N. Y. Supp. 698.

VAN ANTWERP, Respondent, v. O'BRIEN CONST. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 3, 1915.) Action by Nelson Van Antwerp against the O'Brien Construction Company. No opinion. Judgment and order affirmed, with costs.

VANDERBORG, Respondent, v. CITY OF NEW YORK, Appellant. (Supreme Court, Appellate Division, Second Department. January 22, 1915.) Action by Abraham Vanderborg against the City of New York.

PER CURIAM. Judgment and order afULNER v. DORAN. (Supreme Court, Ap-firmed, with costs. See, also, 158 App. Div. pellate Division, First Department. February 297, 142 N. Y. Supp. 26. 11, 1915.) Action by Walter V. Ulner against John R. Doran. No opinion. Motion to dismiss appeal granted, with $10 costs, unless appellant comply with terms stated in order. Order filed.

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JENKS, P. J., and BURR, J., dissent, on the ground that the verdict is against the weight of the evidence.

VANDYKE v. WEBB. (Supreme Court, Appellate Division, First Department. January 29, 1915.) Action by Herbert Vandyke against James N. Webb, as sole surviving executor, etc. No opinion. Motion to dismiss appeal granted, with $10 costs. Order filed.

VILLAGE OF FREDONIA, Appellant, v. FREDONIA NATURAL GAS LIGHT CO. et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. January 13, 1915.) Action by the Village of Fredonia against the Fredonia Natural Gas Light Company and others.

UNION FREE SCHOOL DIST. NO. 1 OF TOWN OF QUEENSBURY, WARREN COUNTY, v. MACK et al. (Supreme Court, Appellate Division, Third Department. January 15, 1915.) Action by the Union Free School District No. 1 of the Town of Queens- PER CURIAM. Stay granted until the hearbury, Warren County, N. Y., against Johning and determination of this appeal, upon con

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