and 122 New York State Reporter Appellants. (Supreme Court, Appellate Divi- | PERKINS, Appellant, v. SMITH, Respond sion, First Department. May 6, 1904.) Pro-ent. (Supreme Court, Appellate Division, Seeceeding by the people of the state of New York, ond Department. June 10, 1904.) Action by on the relation of the Merchants' Real Estate Walter C. Perkins against James B. Smith Company, against James L Wells and others. No opinion. Judgment of the Municipal Court D. Rumsey, for appellants. H. W. Hayden, for affirmed by default, with costs. respondent. No opinion. Order affirmed, with $10 costs and disbursements. PEOPLE ex rel. ROBINSON v. STURGIS, Com'r. (Supreme Court, Appellate Division, First Department. June 17, 1904.) Proceeding by the people of the state of New York, on the relation of Archibald Robinson, against Thomas Sturgis, commissioner, etc. No opinion. Motion denied. PEOPLE ex rel. SHIELS v. GREENE, Com'r. (Supreme Court, Appellate Division, First Department. May 6, 1904.) Proceeding by the people of the state of New York, on the relation of John H. Shiels against Francis V. Greene, commissioner. No opinion. Motion denied, with $10 costs. PEOPLE ex rel. STRAUSS, Respondent, v. WELLS et al., Appellants. (Supreme Court, Appellate Division, First Department. June 10, 1904.) Proceeding by the people of the state of New York, on the relation of Isidor Strauss, against James L. Wells and others. D. Rumsey, for appellants. W. B. Hornblower, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. PEOPLE ex rel. WALRATH et al., Respondents, v. BOARD OF ASSESSORS OF BROWNVILLE et al., Appellants. (Supreme Court, Appellate Division, Fourth Department, May 3, 1904.) Proceeding by the people of the state of New York, on the relation of Jane Walrath and another, against the board of assessors of the town of Brownville and others. PER CURIAM. Judgment and order modified, so as to provide that the costs of the proceeding be awarded and taxed against the defendants in their official capacity, and not personally, and, as so modified, affirmed, without costs of this appeal to either party. Held, that the finding of the referee that the defendants acted in bad faith is contrary to the evidence. PEOPLE ex rel. ZUHR v. GREENE, Com'r, Respondent. (Supreme Court, Appellate Division, First Department. June 10, 1904.) Proceeding by the people of the state of New York, on the relation of Joseph Zuhr, against Francis V. Greene, as commissioner. C. D. Ridgway, for relator. T. Connoly, for respondent. PER CURIAM. Writ dismissed, and proceedings affirmed, with costs. O'BRIEN and INGRAHAM, JJ., dissent. PERELES. Appellant. V. ROCHESTER GERMAN INS. CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. May 26, 1904.) Action by Maurice Pereles against the Rochester German Insurance Company. No opinion. Judgment and order aflirmed, with costs. PIERSON, Appellant, v. CLARK, Respond ent. (Supreme Court, Appellate Division, Third Department. May 20, 1904.) Action by Wellington S. Pierson against J. Emmett Clark. No opinion. Judgment and order unanimously affirmed, with costs. PIETROFESA, Appellant, v. DELAWARE, L. & W. RY. CO., Respondent. (Supreme Court, Appellate Division, First Department. May 6, 1904.) Action by Rocco Pietrofesa against the Delaware, Lackawanna & Western Railway Company. W. McArthur, for appellant. W. L. McGuire, for respondent. No opinion. Judgment affirmed, with costs. In re PORTER. (Supreme Court, Appellate Division, Third Department. May 4, 1904.) In the matter of supplementary proceedings instituted by Nelson W. Porter, as assignee, etc. in an action entitled "A. C. Atkins & Co., Limited, v. Edwin R. Bryant." No opinion. Order affirmed, with $10 costs and disbursements. PORTER V. MAGNETIC SEPARATOR CO. (Supreme Court, Appellate Division, First Department. May 13, 1904.) Action by Alexander T. Porter against the Magnetic Separator Company. No opinion. Motion denied. In re PYE. (Supreme Court, Appellate Division, Fourth Department. May 24, 1904.) In the matter of the examination of Margaret A. Pye, a judgment debtor, in supplementary proceedings. No opinion. Order affirmed, with $10 costs and disbursements. RANDALL, Respondent, ▼. UNITED STATES LEATHER CO., Appellant. (Supreme Court, Appellate Division, Third Department. May 11, 1904.) Action by Oscar S. Randall against the United States Leather Company. PER CURIAM. Judgment and order affirmed, with costs. PARKER, P. J., not voting. SMITH, J., dissents. COLLEGE FOR ORPHAN AND DESTIRANKINE, Respondent, v. DE VEAUX TUTE CHILDREN, et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May 17, 1904.) Action by William B. Rankine against the De Veaux College for Orphan and Destitute Children and others. PER CURIAM. Judgment affirmed, with costs, upon opinion of Childs, J., delivered at Special Term. 85 N. Y. Supp. 239. WILLIAMS and STOVER, JJ., dissent. RANNEY, Respondent, v. VAN COTT, Appellant. (Supreme Court, Appellate Division Fourth Department. May 10, 1904.) Action 1 IPAA EA33 ། MEMORANDUM DECISIONS. ED, Respondent, v. LIVERMORE, Apat. (Supreme Court, Appellate Division, 1 Department. May 20, 1904.) Action by Reed against George Livermore, as surg partner. No opinion. Order modified, riking out that part thereof relating to the nission and to reading the same on the trial e new issue, and, as so modified, affirmed, out costs of this appeal. (Supreme ICH V. COCHRAN et al. t, Appellate Division, First Department. 13, 1904.) Action by Lorenz Reich against S. Cochran and others. R CURIAM. Motion granted, both apto be argued together, with leave to plaino bring on appeal for argument in the event defendants are in default in service of case exceptions, or in printing and filing printapers on appeal. re REIDEL. (Supreme Court, Appellate sion, Second Department. June 17, 1904.) he matter of the application of Frank D. el to lay out a highway in the town of , and the assessment of damages therefor. pinion. Order of County Court of Suffolk ty confirmed. CHARDS, Respondent, v. RAMSAY, Apnt. (Supreme Court, Appellate Division, nd Department. June 3, 1904.) Action by ed Richards against Malcom Ramsay. No ion. Judgment of the Municipal Court afed, with costs. ROCHESTER TRUST & SAFE DEPOSIT CO., Respondent, v. TRUESDALE, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 3, 1904.) Action by the Rochester Trust & Safe Deposit Company against George Truesdale. No opinion. Judgment affirmed, with costs. ROSE v. WELLS. (Supreme Court, Appellate Division, Third Department. May 11, 1904.) Action by Tobias L. Rose against Harrison Wells. No opinion. Motion denied. ROSENFELD v. LANCASHIRE INS. CO. et al. (Supreme Court, Appellate Division, Fourth Department. May 26, 1904.) Action by Mortimer C. Rosenfeld against the Lancashire Insurance Company and others. PER CURIAM. Decision modified, so as to read as follows, viz.: "Judgment and orders reversed, and new trials ordered, with costs to abide event, on the appeals from the judgments. No costs allowed on the appeal from the orders." ROSENKRANTZ, Appellant, v. SILBERMAN, Respondent. (Supreme Court, Appellate Division, First Department. May 6, 1904.) In the matter of Yetta Rosenkrantz against Leib Silberman. S. Horkimer, for appellant. L. Levene, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. In re SAACKE. (Supreme Court, Appellate Division, First Department. June 10, 1904.) In the matter of Charles W. Saacke. A. Boskowitz, for appellant. D. P. Hays, for respondNo opinion. Order affirmed, with $10 ent. costs and disbursements. SALTZMAN, Respondent, v. FRIEDMAN et (Supreme Court, Appellate al., Appellants. Term. May 5, 1904.) Action by Harry Saltzagainst Harris Friedman and others. man From a judgment for plaintiff, and from an order denying a motion for a new trial, defendants appeal. Affirmed. Shapiro & Shapiro, for appellants. Henry Kuntz and Sigmund Horkimer, for respondent. OBERTS, Respondent, v. WILSON et al., PER CURIAM. No point is made by appelellauts. (Supreme Court, Appellate DiviFourth Department. May 24, 1904.) Ac-lants on plaintiff's branch of the case, and their by James A. Roberts, as receiver, against contention relates solely to questions connected y B. Wilson and another. No opinion. with the counterclaim interposed by them. They appear to be mostly questions of fact, which ment affirmed, with costs. were properly submitted to the jury. The record discloses no errors in the admission of evidence or the charge of the court, and the verdict is sufficiently supported by the evidence. The judgment and order must be affirmed, with BROOKLYN OBINSON, Respondent, v. No opinion. Judgment of the Municipal t affirmed, with costs. BLEE, Appellant, v. MASONIC LIFE 'N OF WESTERN NEW YORK, Respond(Supreme Court, Appellate Division, Third artment. May 4, 1904.) Action by Minnie Hee against Masonic Life Association of New York. No opinion. Judgment imously affirmed, with costs. tern costs. SAMPSON et al. v. OTTINGER et al. (Supreme Court, Appellate Division, First Department. May 13, 1904.) Action by Samuel J. Sampson and others against Marx Ottinger and others. No opinion. Motion denied, with $10 costs. SANDFORD, Appellant, v. ERIE R. CO., Respondent. (Supreme Court, Appellate Divi and 122 New York State Reporter sion, First Department. June 10, 1904.) Action by Eva Sandford, as executrix, against the Erie Railroad Company. E. D. O'Brien, for appellant. F. B. Jennings, for respondent. No opinion. Order affirmed, with costs. SAN DONATO, Appellant, v. NATIONAL CONTRACTING CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. May 24, 1904.) Action by Eligio San Donato against the National Contracting Company. No opinion. Motion for reargument denied, with $10 costs and disbursements. SATTERLY, Appellant, v. ERIE R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. June 17, 1904.) Action by Charles S. Satterly against the Erie Railroad Company. No opinion. Motion to dismiss appeal granted, with costs, unless the plaintiff pay $10 costs and perfect his appeal within 20 days. On compliance with these conditions, motion denied, without costs. SAXTON, Appellant, v. NATIONAL CASH REGISTER CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. May 3, 1904.) Action by Frank J. Saxton against the National Cash Register Company. No opinion. Judgment affirmed, with costs. SCHILLING CO. v. ROBERT H. REID & CO. et al. (Supreme Court, Appellate Division, Third Department. May 25, 1904.) Action by the Schilling Company against Robert H. Reid & Co. and others. No opinion. Motion denied. SEEMAN, Respondent, V. CENTRAL BREWING CO., Appellant. (Supreme Court, Appellate Division, Second Department. June 3, 1904.) Action by Edward Seeman against the Central Brewing Company. No opinion. Motion for reargument denied, with $10 costs. Motion for leave to appeal to the Court of Appeals denied. SHACKLEFORD, Respondent, V. MCINTYRE, Appellant. (Supreme Court, Appellate Division, Second Department. June 10, 1904.) Action by Thomas W. Shackleford against Thomas A. McIntyre. No opinion. Judgment and order unanimously affirmed, with costs. SHANESY, Appellant, v. McKEE et al., Respondents. (Supreme Court, Appellate Division, Second Department. June 3, 1904.) Action by John Shanesy against Harry D. McKee and William W. Beers. No opinion. Judgment and order unanimously affirmed, with costs. SHEPARD v. SHEPARD. (Supreme Court, Appellate Division, First Department. May 13, 1904.) Action by Henry B. Shepard against Florence A. Shepard. No opinion. Motion granted. SHERIDAN, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Supreme Court, Appellate Division, First Department. May 20, 1904.) Action by Annie Sheridan against the Metropolitan Street Railway Company. G. A. Rogers, for appellant. B. H Ames, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. SILER v. BATH & H. R. CO. (Supreme Court, Appellate Division, Fourth Department May 10, 1904.) Action by Charles Siler against the Bath & Hammondsport Railroad Company. No opinion. Motion for reargument denied, with $10 costs. Motion for leave to appeal to the Court of Appeals denied. SIXSMITH, Appellant, v. PROWITT et al., Respondents. (Supreme Court, Appellate Division, Second Department. June 10, 1904.) Aetion by Thomas Sixsmith against J. Thornton Prowitt and others. No opinion. Motion to dismiss appeal granted, with $10 costs. SLOANE v. SPALDING. (Supreme Court, Appellate Division, First Department. May 13, 1904.) Action by W. & J. Sloane against Robert H. Spalding. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs. WELL v. CORNWELL. (Supreme Court, ellate Division, Fourth Department. May 1904.) Action by George Snell against iam Cornwell. No opinion. Motion for e to appeal to the Court of Appeals denied. on for reargument denied, with $10 costs. re SNOOK et al. (Supreme Court, AppelDivision, Second Department. June 3, .) In the matter of the application of Augustus Snook and others, as executors, of John B. Snook, deceased, for a pertory writ of mandamus. CR CURIAM. Irrespective of any other re SPURGEON. (Supreme Court, AppelDivision, Second Department. June 7, :.) In the matter of the application of es Robert Spurgeon for admission to the No opinion. Application granted. re STEEVES et al. (Supreme Court, Apte Division, First Department. June 17, .) In the matter of John F. Steeves and her. No opinion. Motion granted. TEINBACH v. PRUDENTIAL INS. CO. reme Court, Appellate Division, First De ment. May 6, 1904.) Action by Caroline bach against the Prudential Insurance pany. ER CURIAM. Motion denied. re STEVENSON. (Supreme Court, Apte Division, First Department. June 17, .) In the matter of Philip Stevenson. No Lon. Motion denied. nt. COKES, Respondent, v. BRADLEY, Ap(Supreme Court. Appellate Division, Department. May 20, 1904.) Action by iam E. D. Stokes against William Bradley. Ottinger, for appellant. W. B. Wait, for ondent. No opinion. Order modified, by ing out the provisions designated "first" "second" in the order, and, as modified, ned, without costs to either party. STRONE, Respondent, . INTERURBAN ST. RY. CO., Appellant. (Supreme Court, Appellate Term. May 5, 1904.) Action by John P. Strone against the Interurban Street Railway Company. From a judgment for plaintiff, and from an order denying motion for a new trial, defendant appeals. Affirmed. Bayard H. Ames and F. Angelo Gaynor, for appellant. Louis Steckler, for respondent. PER CURIAM. Upon the evidence given by both parties the case was one for the jury, and in its submission no reversible error was committed by the court in its charge; the defendant having made no request for further instructions, or that additional questions should be specifically submitted. Nor are the damages excessive. Upon the record as it stands, the judgment and order should be affirmed, with costs. SUTTON, Respondent, v. HOLLENDER, PER CURIAM. The question whether the defendant transferred the possession of the premises to a tenant in part only, and reserved a sufficient part to make him liable for the condition of the coal hole in question, was submitted to the jury as a question of fact under a charge quite favorable to the defendant, and determined by them in favor of the plaintiff. The finding in this respect is sustained, even by the testimony of one of defendant's own witnesses, and it should not be disturbed. This being so, the case at bar is controlled by the reasoning of Trustees of Canandaigua v. Foster, 156 N. Y. 354, 50 N. E. 971, 41 L. R. A. 554, 66 Am. St. Rep. 575, and the recent decision by this court of Sutton (plaintiff's husband) v. Hollender, ubi supra. The record discloses no reversible error. The judgment and re STOUT et al. (Supreme Court, Appel-order must be affirmed, with costs. Division, Third Department. May 11, .) In the matter of the application of EdL. Stout and another in an action_enti"Edward L. Stout et al. v. J. Henry er." (Supreme SWEET V. SCHLIEMANN. Court, Appellate Division, Second Department. June 3, 1904.) Action by Josephine M. Sweet, as trustee, etc., of Francis Fely, deceased, against J. Schliemann. PER CURIAM. The submission in this case is defective. See Marshall v. Hayward, 67 and 122 New York State Reporter App. Div. 137, 73 N. Y. Supp. 592. The parties may remedy the defect within 20 days. If this is not done, the proceeding will be dismissed. the judgment should be reversed, and a Der trial ordered, with costs to appellants to abs event. TRACY et al., Respondents, v. KIRCHER TANAS, Respondent, v. MUNICIPAL GAS et al., Appellants. (Supreme Court Agein CO., Appellant (three cases). (Supreme Court, Division, First Department. June 17, Appellate Division, Third Department. May Action by Alberta P. Tracy and others amics 11, 1904.) Actions by Elias Tanas, as admin- Louis H. Kircher and others. From a istrator, etc., of William Dimitri, John Foli,ment in favor of plaintiffs, defendants appa and Anton Mila, each deceased, against the Municipal Gas Company. No opinion. Order affirmed, with $10 costs in one action and disbursements. TANENBAUM v. JOSEPHI et al. (Supreme Court, Appellate Division, First Department. May 13, 1904.) Action by Moses Tanenbaum against Isaiah Josephi and others. No opinion. Motion denied, with $10 costs. TANENBAUM v. LIPPMANN. (Supreme Court, Appellate Division, First Department. May 20, 1904.) Action by Moses Tanenbaum against Gustav Lippinann. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs. Reversed. Edward W. S. Johnston, for appellants. Walter S. Logan, for respondents PER CURIAM. For the reasons stated in the opinions in the case of Tracy v. Frey there with handed down) 88 N. Y. Supp. 874, the judgment should be reversed, and a new tria. ordered, with costs to appellants to abide event. ELECTRIC R. CO., Appellant (Sopreme TROTT, Respondent, v. WESTCHESTER Court, Appellate Division, Second Department. June 3, 1904.) Action by Wilhelmina Trott against the Westchester Electric Railroad Company. No opinion. Judgment of the Munic ipal Court affirmed, with costs. TUCKER, Appellant, v. TUCKER Re spondent. (Supreme Court, Appellate Division, Second Department. June 3, 1904.) Action by Mary Adelaide Tucker against Edwin H. Tackand disbursements. TANENBAUM, Respondent, v. NEUBERGER et al., Appellants. (Supreme Court. Ap-er. No opinion. Order affirmed, with $10 costs pellate Division, First Department. May 6, 1904.) Action by Moses Tanenbaum against Meyer Neuberger and others. A. Furber, for appellants. E. Hall, for respondent. No opinion. Judgment and order affirmed, with costs. TEN EYCK, Appellant, v. BOOKMAN et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. May 10, 1904.) Action by Clarence Ten Eyck, as receiver, etc., against Le Roy Bookman and others. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Held, that the complaint states only one cause of action. TEN EYCK, Appellant, v. BOOKMAN et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. May 10, 1904.) Action by Clarence Ten Eyck, as receiver, etc., against Lucinda Bookman and others. No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Held, that the complaint states only one cause of action. TRACY et al., Respondents, v. FALVEY et al., Appellants. (Supreme Court, Appellate Division, First Department. June 17, 1904.) Action by Alberta P. Tracy and others against Catharine Falvey and others. From an interlocutory judgment entered on a decision after trial, defendants appeal. Reversed. Edward W. S. Johnston, for appellants. Walter S. Logan, for respondents. PER CURIAM. For the reasons stated in the opinions in the case of Tracy v. Frey (herewith handed down) 88 N. Y. Supp. 874, In re TROY PRESS CO. (Supreme Court, Appellate Division, Third Department. May 11, 1904.) In the matter of the application of the Troy Press Company for a writ of mandamus directed to the Secretary of State. No opinion. Order affirmed, with $10 costs and disbursements. UNITED STATES, Appellant, v. UNION SURETY & GUARANTY CO. et al., Respondents. (Supreme Court, Appellate Division, Seeond Department. June 3, 1904.) Action by the United States of America, suing for the use and benefit of Walter R. Jones, against the Union Surety & Guaranty Company and Harold R. Dillingham. No opinion. Interlocutory judgment affirmed, with costs. VARIANO v. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. June 10, 1904.) Action by Gaetano Variano against the city of New York. No opinion. Motion denied, with $10 costs. VILLAGE OF THERESA, Respondent, v. SANTWAY, Appellant, et al. (Supreme Court, Appellate Division, Fourth Department. May 10, 1904.) Action by the village of Theresa against Frederick L. Santway, impleaded, and others. No opinion. Order affirmed, with $10 costs and disbursements. VOLK v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. May 24, 1904.) Action by John Volk against the New York Central & Hudson River Railroad Company. No opinion. |