App. Div.]

First Department, April, 1920.

NATHAN COLEMAN and Another, Copartners, etc., Respondents, v. MOORE & TIERNEY, Appellant.- Order affirmed upon plaintiffs serving stipulation as provided in order. If such stipulation be not served the order is reversed, with ten dollars costs and disbursements, and the motion granted. No opinion. Present · Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

OMER FEIZI, Respondent, v. Alexander C. CASTRIOTIS and Another, Copartners, etc., Appellants, Impleaded with Others. Order affirmed, with ten dollars costs and disbursements. No opinion. Present Clarke, P. J., Dowling, Smith and Page, JJ.

SAMUEL HALPERIN, Appellant, v. MAX BLANCK and Another, Respondents. Order affirmed, with ten dollars costs and disbursements. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

STAFFORD HENDRIX, Respondent, v. MANHATTAN BEACH DEVELOPMENT COMPANY and Another, Appellants.- Order affirmed, with ten dollars costs and disbursements. No opinion. The date for the examination to proceed to be fixed in the order. Settle order on notice. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

THIRD AVENUE RAILWAY COMPANY, Respondent, v. PATRICK J. SHEA and Others, Appellants. Order affirmed, with ten dollars costs and disbursements. No opinion. The date for the examination to proceed to be fixed in the order. Settle order on notice. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

C. K. Y. FILM CORPORATION, Appellant, v. CLARA KIMBALL YOUNG, Respondent. Order affirmed, with ten dollars costs and disbursements. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

C. K. Y. FILM CORPORATION, Appellant, v. CLARA KIMBALL YOUng, Respondent. Order affirmed, with ten dollars costs and disbursements. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

JOSEPH SILBERMAN, Appellant, v. CHESTERFIELD FURNITURE CO., INC., Respondent. Order affirmed, with ten dollars costs and disbursements. No opinion. The date for the examination to proceed to be fixed in the order. Settle order on notice. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

MERCHANT TAILORS SOCIETY OF THE CITY OF NEW YORK and Others, Respondents, v. JOURNEYMEN TAILORS' UNION OF AMERICA, LOCAL No. 390, and Others, Appellants.- Order affirmed, with ten dollars costs and disbursements. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

FIRST NATIONAL BANK, Respondent, v. ZILBERMAN-ROTHSCHILD FURNITURE CO., INC., Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Present Clarke, P. J., Dowling, Smith,

Page and Greenbaum, JJ.

WALTER F. TAYLOR, Respondent, v. THE F. B. STEARNS COMPANY OF ОнIO, Appellant.- Order affirmed, with ten dollars costs and disbursements.

First Department, April, 1920.

[Vol. 191.

Clarke, P. J., Dowling, Smith, Page and Green

FIELDING LEWIS TAYLOR, Respondent, v. THE F. B. STEARNS COMPANY OF OHIO, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Present Clarke, P. J., Dowling, Smith, Page and

Greenbaum, JJ.

THE PEOPLE OF THE STATE OF NEW YORK V. MICHAEL PANTILLIANO.— Motion to dismiss appeal granted. Present — Clarke, P. J., Dowling Smith, Page and Greenbaum, JJ.

THE PEOPLE OF THE STATE OF NEW YORK V. ROCCO DE MONE.- Motion to dismiss appeal granted. Present- Clarke, P. J., Dowling, Smith, Page

and Greenbaum, JJ.

THE PEOPLE OF THE STATE OF NEW YORK V. MICHAEL HERLIHY.— Motion to dismiss appeal granted. Present Clarke, P. J., Dowling Smith, Page and Greenbaum, JJ.

THE PEOPLE OF THE STATE OF NEW YORK V. JAMES HEALEY.-Motion to dismiss appeal granted. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

THE PEOPLE OF THE STATE OF NEW YORK V. MAX ESHUK.-Motion to dismiss appeal granted. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

ANNA RUZICKA V. JOHN TULKA and Others.-Motion to dismiss appeal granted, with ten dollars costs. Present- Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

ISLA KAUFMANN V. WELLS FARGO & COMPANY.— Application denied, with ten dollars costs. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

FRANKLIN FIRE INSURANCE COMPANY OF PHILADELPHIA V. EMANUEL WEINBERG and Others.- Application granted. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

JACOB ROSENBAUM V. HERMAN PARNES.- Application denied, with ten dollars costs. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

GEORGE BOIKO & COMPANY, INC., v. ATLANTIC WOOLEN MILLS, INC.Application granted. Order signed. Present-Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

JOHN M. JONES V. UNITED ELECTRIC SERVICE COMPANY, INC.-Application denied, with ten dollars costs. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

AMELIA OCKLer v. Louis K. SCHWARTZ and Others, Impleaded, etc.— Application denied, with ten dollars costs, and stay vacated. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

In the Matter of the BANK OF EUROPE, etc.- Motion denied, with ten dollars costs. Present-Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. GEORGE A. HELME V. MARY A. BUCKELEW, as Executrix, etc.- Motion granted; question certified. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

App. Div.]

First Department, April, 1920.

ISAAC A. KRULEWITCH V. THE NATIONAL IMPORTING AND TRADING COMPANY, INC.-Motion denied, with ten dollars costs. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

KINGS COUNTY LIGHTING COMPANY V. CHARLES D. NEWTON, as AttorneyGeneral of the State of New York, and Others.- Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith and Page, JJ. GENERAL INVESTMENT COMPANY V. ALVIN M. CRAIG.-Motion denied, with ten dollars costs. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

In the Matter of ROBERT J. GRAY, Deceased.-Motion granted. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

DAVID SILBERSTEIN and Others, Copartners, etc., Appellants, v. Louis BEGUN and Others, Copartners, etc., Respondents.- Judgment affirmed, with costs. No opinion. Present Clarke, P. J., Laughlin, Dowling and Merrell, JJ.; Clarke, P. J., dissenting.

JAMES TALCOTT, INC., Respondent, v. ACME FINISHING COMPANY, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. Present- Dowling, Laughlin, Smith, Merrell and Greenbaum, JJ. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. ANTON MICHALENOK, Appellant, Impleaded with Another.- Judgment affirmed. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

ASSETS AND LIABILITIES ASSOCIATION, INC., Respondent, v. NEW YORK LODGE NO. 1, B. P. O. ELKS, Appellant.- Judgment affirmed, with costs. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

SEVENTY-EIGHTH STREET AND BROADWAY COMPANY, Appellant, v. CHATHAM AND PHENIX NATIONAL BANK, Respondent.— Judgment affirmed, with costs. No opinion. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

SUPERTONE TALKING MACHINE CO., INC., Appellant, v. MANUEL MANDEL and Another, Copartners, etc., Respondents.- Judgment and order affirmed, with costs. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

METROPOLITAN LIFE INSURANCE COMPANY, Respondent, v. FIFTY-NINTH STREET REAL ESTATE COMPANY, Appellant, Impleaded with Others.-Judgment affirmed, with costs. No opinion. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

MARY A. WATERMAN, Respondent, v. INTERBOROUGH RAPID TRANSIT COMPANY and THE CITY OF NEW YORK, Appellants.- Judgment affirmed, with costs. No opinion. Present- Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

In the Matter of the Transfer Tax upon the Estate of FREDERICK W. MATTHIESSEN, Deceased. ADELE M. BLOW and Another, as Executors, etc., Appellants; COMPTROLLER OF THE STATE OF NEW YORK, Respondent. Order affirmed, with ten dollars costs and disbursements. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

First Department, April, 1920. [Vol. 191, App. Div.]

JOHN I. COPELAND, Respondent, v. MARDEN, ORTH & HASTINGS COMPANY, Appellant. Judgment affirmed, with costs. No opinion. Present

Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

SIEGEL COHEN and Another, Copartners, etc., Respondents, v. JOHN CURTIN, INC., Appellant.- Determination affirmed, with costs, and judgment ordered for plaintiff for the sum of $891.15, with interest and costs. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

CATHARINE QUINN, Respondent, v. HERBERT L. KAMBER, Appellant.Judgment and order affirmed, with costs. No opinion. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

HENRY K. FORT COMPANY, Respondent, v. N. LONDON, INC., Appellant. Judgment and order affirmed, with costs. No opinion. Present

Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

MAX MAAG, Respondent, v. ALBERT T. OTTO & SONS, INC., and Others, Appellants, Impleaded with Others.- Order affirmed, with ten dollars costs and disbursements, with leave to defendants to serve an amended answer on payment of said costs and ten dollars costs of motion at Special Term. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.; Clarke, P. J., and Smith, J., dissenting.

WILLIAM T. CARTER and Others, Copartners, etc., Respondents, v. THE GUARANTEE COMPANY OF NORTH AMERICA, Appellant, Impleaded with Another. Judgment affirmed, with costs. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

Clarke, P. J.,

BESSIE HONIG, Respondent, v. JOSHUA GOODMAN, Appellant.— Judgment and order affirmed, with costs. No opinion. Present Dowling, Smith, Page and Greenbaum, JJ.

JOSEPH P. CARROLL V. JOHN T. CLARKE.- Motion denied, with ten dollars costs. Present — Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. DETTE F. PEtze v. David H. KNOTT, as Sheriff, etc.— Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.

INDEX.

ACCOMPLICES.

Sufficiency of corroboration of accomplice on prosecution for larceny.
See CRIMES, 11.

ACCOUNTING.

Suit for accounting by widow of deceased partner.
See PARTNERSHIP, 1.

Complaint in suit for accounting.

See PLEADINGS, 3.

Suit to compel accounting as to proceeds of trust property brought after
death of trustee and more than twenty-five years after his accounting.
See TRUSTS, 1.

ACT OF GOD.

Sudden illness of motorman just prior to collision between trolley car and
wagon as act of God.

See STREET RAILWAYS, 1.

ADOPTION.

Consent of minor over twelve years of age essential to adoption
imbecile incapable of consent.

1. Action on undertaking given on appeal in suit for specific performance -
failure of vendor to tender deed conveying premises free from incumbrances
other than those mentioned in decree - tender of damages and costs by obligors

when obligors not liable on undertaking for refusal of vendee to accept
insufficient deed — evidence of incumbrances not removed by vendor. Defend-
ants who have given the usual undertaking on an appeal from a decree
in a suit for specific performance cannot be held liable on their undertaking
for the costs of legal proceedings which took place subsequent to the appeal
and subsequent to the execution of their undertaking and which were in
no wise contemplated when the undertaking was given.

Where the decree of specific performance from which the appeal was
taken required plaintiff to deliver a deed "free of all incumbrances except
such as are therein mentioned,” but as a matter of fact the premises were
subject to a number of other incumbrances which were not satisfied and
removed by the plaintiff before tendering the deed required by the decree
of specific performance, and the defendants on affirmance of the judgment
of specific performance tendered all damages and costs awarded in the
action, they cannot be held in the full penal sum stated in the bond because
the defendants in the suit for specific performance refused to accept the
deed offered by the plaintiff which was not free of other incumbrances, as
required by the contract of sale.

It was error for the court to hold that the obligors became liable for the
full penal sum mentioned in the bond because the vendees refused to accept
a deed which purported to convey the premises free of all incumbrances
except those mentioned in the deed, but which did not in fact convey such
title.