Second Department, December, 1911.

[Vol. 147. were continued after his term of office. This action was brought to recover for these services in addition to his compensation as clerk, and resulted in a verdict of a jury in Justice's Court for the full amount of the claim. An appeal was taken to the County Court, where the judgment was reversed, the learned trial court handing down a memorandum from which it appears that his controlling thought was that it was error to permit certain hearsay evidence to remain in the case, after objection and a motion to strike out. There can be no doubt of the correctness of the learned County Court upon this point, and, while many other interesting points are suggested, we deem it unprofitable to pursue the discussion at this time, except to suggest that in actions of this character it should be made to plainly appear that there is a legal obligation on the part of the municipality. In this case, as to the most important services, it is very doubtful whether the village of Patchogue had any authority to authorize the expenditure for the so-called re-recording of vital statistics, or the indexing of the same. No duty rests upon the village clerk to record these statistics in the first instance; that is the duty of the clerk of the board of health, and the so-called re-recording would not amount to a recording at all; only the original entries of the clerk of the board of health would be of use in any event, and just why the taxpayers should be burdened for making a copy of such statistics does not clearly appear to us at this time. At any rate, the case contains the fatal error mentioned by the court below, and the judgment of the County Court should be affirmed. The judgment appealed from should be affirmed, with costs. Jenks, P. J., Carr and Rich, JJ., concurred; Thomas, J., concurred in result. Judgment of the County Court of Suffolk county affirmed, with costs.

MAY MCLOUGHLIN, by MARGARET MITCHELL, Her Guardian ad Litem, Appellant, v. BROOKLYN HEIGHTS RAILROAD COMPANY, Respondent. CARRIE DANIELS, by HANNAH NOONAN, Her Guardian ad Litem, Appellant, v. BROOKLYN HEIGHTS RAILROAD COMPANY, Respondent. Railroad-negligence-damages-judgment of nonsuit.

Appeals by the plaintiffs from judgments of the Supreme Court, entered in the office of the clerk of the county of Kings on the 8th day of June, 1911, and from orders entered in said office on the 15th day of June, 1911, denying their motions for a new trial on the minutes.

RICH, J.: These appeals are by plaintiffs from a judgment in favor of the defendant in each of the two cases which were tried together. The plaintiffs were passengers on a trolley car operated by the defendant which collided with another of defendant's cars. The actions are based on the neg ligence of the defendant in the operation of these cars, and upon the trial the defendant admitted its liability in both cases. The plaintiffs each testified to the injuries received and the attendant consequences; their testimony is corroborated by their physician, and is not contradicted nor are they in any manner impeached. While the plaintiffs may have exaggerated and magnified their injuries, the evidence is such as to entitle each to recover something by way of damages. (Levine v. Brooklyn,

App. Div.]

Second Department, December, 1911.

Queens County & Suburban R. R. Co., 134 App. Div. 606.) The judgment and order must be reversed and a new trial granted, costs to abide the event. Hirschberg and Carr, JJ., concurred; Jenks, P. J., and Burr, J., dissented on the ground that the jury was justified in finding that plaintiff sustained no actual damage, and a court will not reverse for the sake of nominal damages. The Levine case, cited in the prevailing opinion, was a nonsuit, and there was uncontradicted evidence of actual damage. In the case at bar the extent of the injury was disputed. In each case judgment and order reversed and new trial granted, costs to abide the event.

Continental Securities Company and Others, Appellants, v. August Belmont and Others, Respondents.- Motion granted, and cause set down for argument on Thursday, December 7, 1911. Present-Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

Himmelstein & Arker Company, Appellant, v. John J. Reilly, Respondent.- Motion denied, with ten dollars costs. Present-Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ.

In the Matter of the Application of Bertram L. Fletcher for Admission to the Bar.- Application granted. Present-Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

In the Matter of the Petition of George B. McClellan and Others in Relation to Lands at Joralemon and Furman Streets, etc.-Motion granted, and Darwin R. James appointed commissioner in the place and stead of Theodore B. Gates, deceased. Present Jenks, P. J., Hirschberg, Burr,

Thomas and Carr, JJ.

John Reis Company, Respondent, v. Claude L. Wheeler, Appellant.— Motion denied, without costs. Present-Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

Morris Fine, Respondent, v. Solomon Wolff and David Goodstein, Appellants. Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

Meyer Goldberg, Respondent, v. James S. Wemyss Company, Appellant.-Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, upon the ground that the contract afforded plaintiff only the right to pick out 1,000 bundles from the stock "as it is," but not to break open the bundles and to pick out from the broken bundles such rolls as he wished. Jenks, P. J., Carr and Woodward, JJ., concurred; Hirschberg and Rich, JJ., voted for affirmance.

In the Matter of the Application of The City of New York, Appellant, to Acquire Certain Real Estate at Valley Stream, etc., in the Town of Hempstead, in the County of Nassau, for Purposes of Water Supply. Frederic N. Watriss and Others, Respondents.- Order modified on reargument by reducing the compensation for each commissioner to $6,500, and as so modified the order is affirmed, without costs. No opinion. Jenks, P. J., Burr, Woodward and Rich, JJ., concurred; Hirschberg, J., voted for affirmance.

Second Department, December, 1911.

[Vol. 147. In the Matter of the Judicial Settlement of the Account of Charles E. McDermott, as Administrator, etc., of John McDermott, Deceased.Reargument ordered and cause set down for Wednesday, January 10, 1912. Hirschberg, Burr, Thomas, Carr and Woodward, JJ., concurred.

In the Matter of the Examination of Union Bank of Brooklyn. George C. Van Tuyl, Jr., Superintendent of Banks of the State of New York, etc., Respondent; Edward M. Grout, Appellant. (Appeal No. 1.)-Appeal dismissed on reargument, with ten dollars costs and disbursements. No opinion. Hirschberg, Burr, Thomas, Woodward and Rich, JJ., concurred.

Abe Manevitz, Respondent, v. George W. Averell, Appellant.- Judg ment of the Municipal Court affirmed, with costs. No opinion. Burr, Thomas and Woodward, JJ., concurred; Jenks, P. J., and Carr, J., dissented.

Marguerite Romeo, Respondent, v. Vincenzo Romeo, Appellant.- Order modified on reargument by fixing the alimony at twelve dollars per week without restitution of any sum paid under the order appealed from, and as so modified affirmed, without costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Michael Callahan, Respondent, v. The Munson Steamship Line, Appellant, Impleaded with American Sugar Refining Company of the State of New York, Defendant-Judgment and order affirmed, with costs, on the authority of Callahan v. Munson Steamship Line (141 App. Div. 791). Jenks, P. J., Carr, Woodward and Rich, JJ., concurred; Thomas, J., dissented.

Michael Goldberg, by Samuel Goldberg, His Guardian ad Litem, Appellant, v. James Graham, Respondent.-Motion for reargument denied, without costs. Present -Jenks, P. J., Hirschberg, Burr, Thomas and

Carr, JJ.

John Hartman, Respondent, v. Berlin & Jones Envelope Company, Appellant.- Motions denied, without costs. Present-Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ.

Morris Grossman, Respondent, v. Sarah Bresson, Defendant, Impleaded with David Mendelson, Appellant.-Judgment of the County Court of Kings county affirmed, with costs. No opinion. Jenks, P. J., Burr, Thomas, Woodward and Rich, JJ., concurred.

In the Matter of the Application of J. Edward Simmons and Others, Constituting the Board of Water Supply of the City of New York, etc., to Acquire Real Estate, etc. (Hill View Reservoir, Section No. 1.)- Order reversed, with ten dollars costs and disbursements, on the authority of Matter of Simmons (141 App. Div. 120), and motion to confirm award granted, with costs. Hirschberg, Burr, Thomas, Carr and Woodward, JJ., concurred.

Samuel Rubel and Isidore Rubel, Appellants, v. Herman Stelljes and Christ Schroeder, Respondents.- Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. There is a conflict of evidence as to what occurred on the thirteenth of May, but, giving to defendants the full benefit of the evidence introduced on their behalf, it

App. Div.]

Second Department, December, 1911.

fails to establish such unreasonable delay on the part of plaintiffs in delivering ice as would justify defendants in terminating the contract. Jenks, P. J., Burr, Thomas, Carr and Woodward, JJ., concurred.

Carlton M. Prankard and Another, Respondents, v. James S. Cooley, as School Commissioner, Defendant, and Village of Mott's Point and Others, Appellants.- Motion for leave to appeal to the Court of Appeals granted. Present- Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ. Order to be settled before the presiding justice.

Joel Aronson, Respondent, v. Guttenberg Pearl Button Company, Appellant.- Judgment of the Municipal Court unanimously affirmed, with costs. No opinion. Present - Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

Jacob S. Butcher, Appellant, v. The City of New York, Respondent.— Judgment and order affirmed, with costs. No opinion. Jenks, P. J., Burr, Thomas and Carr, JJ., concurred; Woodward, J., dissented.

James Craig, as Administrator, etc., of James Austin, Deceased, Respondent, v. The Hamilton Terminal Company, Appellant.-Judgment and order unanimously affirmed, with costs. No opinion. PresentJenks, P. J., Burr, Carr, Woodward and Rich, JJ.

Alfonso De Michele, Respondent, v. Michael Timpano, Appellant.— As the testimony of the defendant in relation to his counterclaim for fortyfive dollars for money paid for water rates at the request of plaintiff's assignor was not controverted, the trial court should have allowed this counterclaim of forty-five dollars. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event, unless plaintiff stipulate within twenty days to reduce the judgment to the sum of two hundred and twenty-six dollars and seventy-five cents, in which case the judgment as so reduced is affirmed, without costs of this appeal. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Geller Floor and Wall Tile Company, Respondent, v. Kings Improvement Company, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Daniel M. Gerard and Theodore S. Hall, Respondents, v. Louis de Lancy Ward and G. Clarence Barclay Ward, Appellants.—Judgment and order unanimously affirmed, with costs. No opinion. Present-Jenks, P. J., Burr, Thomas, Carr and Woodward, JJ.

Emilia E. Gillen, Appellant, v. John Walsh, Respondent.- Order of the Municipal Court reversed, with costs, and action remitted to the Municipal Court for joinder of issue, on the ground that the summons was served in accordance with the statute. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Margaret Higgins, Respondent, v. Fifth Avenue Coach Company, Appellant.-Judgment and order unanimously affirmed, with costs. No opinion. Present―Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ.

In the Matter of the Application of The City of New York, Respondent, to Acquire Certain Real Estate in the Towns of Lewisboro, etc., Westchester County, New York, etc., for the Purpose of a Dam or Reservoir

Second Department, December, 1911.

[Vol. 147. on Cross River, and for the Purpose of Supplying the City of New York with an Increased Supply of Pure and Wholesome Water. John Green, Appellant.-Order of the Special Term reversed, with ten dollars costs and disbursements, on the authority of Matter of City of New York (198 N. Y. 84, 92), and matter remitted to the Special Term for the appointment of new commissioners and a new hearing. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Elizabeth B. Laughlin, as Administratrix, etc., of John F. Laughlin, Deceased, Appellant, v. The Coney Island and Brooklyn Railroad Company, Respondent.- Judgment and order unanimously affirmed, with costs. No opinion. Present-Jenks, P. J., Hirschberg, Burr, Woodward and Rich, JJ.

Israel Levinson, Respondent, v. Andrew Luby, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Sylvan Levy, Respondent, v. Andrew Luby, Appellant.- Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Eik Marikavicts, Respondent, v. James Marino, Appellant.-Judgment and order unanimously affirmed, with costs. No opinion. Present Jenks, P. J., Burr, Thomas, Carr and Woodward, JJ.

Elizabeth McGee, Appellant, v. Nassau Electric Railroad Company, Respondent.-Judgment and order unanimously affirmed, with costs. No opinion. Present -Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ.

The People of the State of New York ex rel. Patrick L. Collins, Relator, v. William F. Baker, as Police Commissioner of the City of New York, Respondent.- Determination confirmed, with costs. No opinion. Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ., concurred.

Thomas J. Quinn, Respondent, v. Marcus A. Myers, Appellant.-Judg ment and order unanimously affirmed, with costs. No opinion. Present -Jenks, P. J., Burr, Thomas, Woodward and Rich, JJ.

S. & V. Motor Company, Appellant, v. E. R. Thomas Motor Branch Company, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Hirschberg, Burr, Thomas and Carr, JJ., concurred.

In the Matter of James Taylor, an Attorney.- Report of referee confirmed. Jenks, P. J., Hirschberg, Burr and Rich, JJ., concurred; Woodward, J., not voting.

Margaret Bauman, as Administratrix, etc., of Michael J. Ryan, Deceased, Appellant, v. Malie Edelmuth and Others, Respondents.-Judgment affirmed, with costs. No opinion. Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ., concurred.

Kathryn Lynch, Respondent, v. Richmond Light and Railroad Company, Appellant.-Judgment and order unanimously affirmed, with costs. No opinion. Present-Jenks, P. J., Hirschberg, Thomas, Carr and Rich, JJ.

Macoy Publishing and Masonic Supply Company, Respondent, v. Allen Publishing Company and Others, Appellants.-- Order affirmed, with ten