App. Div.]

Fourth Department, March, 1908.

In the Matter of the Trusteeship of the Law Library of the Eighth Judicial District.-- Joseph G. Dudley appointed trustee to fill the vacancy caused by the resignation of Henry Adsit Bull.

John H. Garvey, Respondent, v. Phenix Preferred Accident Insurance Company of Detroit, Michigan, Appellant. - Motion for reargument denied, with ten dollars costs. Motion for leave to appeal to the Court of Appeals denied.

Greenleaf S. Van Gorder, Respondent, v. Frederick D. Helmer, as Executor, etc., Appellant. - Motion to dismiss appeal granted, with costs of the appeal, including ten dollars costs of this motion. Held, that the costs and disbursements should be taxed by the clerk in the first instance.

Almyra B. Farwell, Respondent, v. Adelbert J. Schlager, Appellant. - Motion granted upon payment of ten dollars costs of this motion to the appellant, and record filed in this court ordered to be returned to the court below to enable the plaintiff-respondent to move at Special Term to correct and amend the report of the referee in said action.

Maggie A. Senglaup, Respondent, v. Acker Process Company, Appellant.Motion denied, without costs, and the order of this court entered herein on the 27th day of September, 1907, amended nunc pro tunc.

John D. Gill, Appellant, v. Robert Dickson and Another, Respondents.Motion denied, with ten dollars costs. Held, that other issues of fact having been raised by the answer, which are still undetermined, we are of the opinion that we should not now direct final judgment dismissing the complaint.

In the Matter of the Application of Frank Z. Wilcox for a Peremptory Writ of Mandamus, etc. - Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs.

In the Matter of the Application of Albert A. Fenyvessy, Respondent, for the Removal of J. H. Rebstock Company, Appellant, from Certain Premises in the city of Buffalo. - Order affirmed, with costs. All concurred.

Collingwood Cole, Appellant, v. Emma Lester and Mary Rasbach, Respondents, Impleaded with Harry V. Rasbach. - Interlocutory judgment affirmed, with costs. All concurred.

In the Matter of the Will of Mary E. Luce, Deceased. Mary A. Tupper and Edward R. Luce, Appellants; Minnie E. Luce, Respondent. - Decree of Surrogate's Court affirmed, with costs of this appeal payable by appellants. All concurred. Amos C. Holcomb, Appellant, v. Blanche E. Holcomb, Individually and as Administratrix, etc., of Ray B. Holcomb, Deceased, Respondent. - Judgment affirmed, with costs. All concurred.

Lacey B. Darling. Respondent, v. Franz Forderkronz, Appellant. - Judgment affirmed, with costs. All concurred.

James W. Burroughs, Respondent, v. Riley W. Albring, Appellant. - Judgment affirmed, with costs. All concurred.

Aaron Clough, Appellant, v. Walter Fox and Alonzo Fox, Respondents.Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., who dissented.

George P. Gardner, Respondent, v. Lackawanna Steel Company, Appellant.Judgment affirmed, with costs. All concurred.

Fourth Department, March, 1908.

[Vol. 125.

The People of the State of New York, Respondent, v. Anthony S. Harpending, Appellant. - Judgment of conviction reversed and new trial granted. Held, that there were errors committed by the court in the charge and in the admission of evidence. All concurred.

Carmine Talarico, Appellant, v. Merrell-Soule Company, Respondent. - Judgment affirmed, with costs. All concurred.

Joseph Doremus, Respondent, v. The Baker Theater Company, Appellant.Judgment and order affirmed, with costs. All concurred, except Robson, J., who dissented.

Patrick Manning, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant. - Judgment and order reversed, and new trial ordered, with costs to appellant to abide event. Held, that the verdict of the jury was contrary to and against the weight of the evidence. All concurred, McLennan, P. J., and Spring, J., voting for reversal upon the ground that the evidence fails to show that the defendant was guilty of negligence which caused or contributed to the injury complained of.

American Ferrofix Brazing Company, Respondent, v. Nathaniel R. Potter and George R. McAllaster, Appellants. - Order affirmed, with costs. All concurred. Frank Manhard, Respondent, v. V. Mott Pierce, Appellant. - Order affirmed, with ten dollars costs and disbursements. All concurred.

Andrew Marko, Respondent, v. Genesee Furnace Company, Appellant.Motion for leave to appeal to the Court of Appeals denied, without costs.

Nellie H. Lamphear, as Administratrix, etc., of Silas A. Lamphear, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.- Judgment and order affirmed, with costs. All concurred, except Robson, J., who dissented.

Francis J. Quinn, Respondent, v. The Sun Printing and Publishing Association, Appellant. - Interlocutory judgment affirmed, with costs, upon the authority of Soper v. Associated Press (115 App. Div. 815; affd., 188 Ν. Υ. 550), with leave to the defendant to plead over upon payment of the costs of the demurrer and of this appeal. All concurred.

William Cobb, Appellant, v. William Crittenden, Respondent. - Judgment modified by deducting therefrom the amount awarded to the defendant, eightyseven dollars and sixty-three cents, with interest thereon from July 2, 1903, and thirty dollars, with interest thereon from May 31, 1901, and as so modified affirmed, without costs of this appeal to either party. All concurred; McLennan, P. J., not sitting.

Robert Jones and William Galvin, Appellants, v. Delaware, Lackawanna and Western Railroad Company, Respondent. - Order affirmed, with ten dollars costs and disbursements. All concurred.

Robert Jones and William Galvin, Appellants, v. Delaware, Lackawanna and Western Railroad Company, Respondent. - Judgment affirmed, with costs. All concurred.

Anna R. Peters, as Administratrix, etc., of John W. Peters, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.- Judgment and order affirmed, with costs. All concurred, except App. Div.]

Fourth Department, March, 1908. McLennan, P. J., who dissented upon the ground that the evidence fails to establish actionable negligence on the part of the defendant.

Celinda A. Fulton, Appellant, v. Fred H. Krull, Respondent. - Judgment and order affirmed, with costs, upon the opinion of Tuttle, referee, in the case of Clinton v. Krull (ante, p. 157), decided at this term of court. All concurred; Robson, J., not sitting.

Esther C. Hoskins, Respondent, v. Kingsland Brick Company and Others, Appellants, Impleaded with Ross-Keller Triple Pressure Brick Machine Company. - Judgment affirmed, with costs. All concurred.

Andrew Marko, Respondent, v. Genesee Furnace Company, Appellant.Judgment and order affirmed, with costs. All concurred.

Rayner G. Godden and Henry Mickle, Respondents, v. Louise Lessinger, Appellant.-Judgment affirmed, with costs. All concurred.

Mertie L. Underwood, Appellant, v. Margaret E. Roberts Underwood, as Executrix, etc., of Charles K. Underwood, Deceased, Respondent. - Judgment and order affirmed, with costs. All concurred.

The People of the State of New York, Respondent, v. John Dewey, Appellant.-Judgment and order reversed and new trial granted. Held, that the verdict was contrary to and against the weight of the evidence. All concurred. Albert Meissner, by John Meissner, His Guardian ad Litem, Respondent, v. The Pennsylvania Railroad Company, Appellant. - Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Held, that the plaintiff was guilty of contributory negligence as matter of law. All concurred.

Chauncey C. Colburn, Respondent, v. Merton J. Spencer and Others, Appellants. Order affirmed, with ten dollars costs and disbursements, with leave to defendant to answer the amended complaint within twenty days, upon payment of costs. All concurred.

Edwin Macomber, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. - Judgment and order affirmed, with costs. All concurred.

The People of the State of New York ex rel. Katherine De Garmo, Appellant, v. F. P. Bentley, Superintendent of the Onondaga County Penitentiary at Jamesville, New York, Respondent. - Order affirmed. All concurred.

In the Matter of the Application of International Railway Company for the Appointment of Three Commissioners to Determine Whether Its Railroad Ought to Be Constructed and Operated in Elmwood Avenue, etc. - Determination of commissioners that railroad ought to be constructed and operated as set forth in report of said commissioners confirmed.

John J. Odell, Respondent, v. Star Palace Laundry, Appellant. - Motion for leave to appeal to Court of Appeals denied, with ten dollars costs.

James J. Simmons, Appellant, v. Francis I. Crisfield, Respondent. - Motion for leave to appeal to Court of Appeals granted and question for review certified.

Patrick Dowdell, Respondent, v. Lackawanna Steel Company, Appellant.Motion to amend remittitur denied, with ten dollars costs,

Fourth Department, March, 1908.

[Vol. 125.

In the Matter of the Application of Lewis Forest Lindal for Admission to the Bar. Application granted.

Firman Ouderkirk and Another, Appellants, v. Bayless Pulp and Paper Company and Others, Appellants. - Motion for leave to appeal to Court of Appeals granted, without costs, and questions for review certified.

Mary A. Powers, Respondent, v. Village of Moravia, Appellant. - Motion for reargument denied, with ten dollars costs. Motion for leave to appeal to Court of Appeals denied.

Union Trust Company of Rochester, Appellant, v. John N. Rauber, Respondent.- Interlocutory judgment reversed, with costs and demurrer overruled, with costs, with leave to defendant to plead over upon payment of the costs of the demurrer and of this appeal, upon the opinion of Robson, J., in the case of Union Trust Co. v. Sickels (ante, p. 105), decided at this term of court. All concurred. Union Trust Company of Rochester, Appellant, v. Thomas R. Finucane, Respondent.- Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to plead over upon payment of the costs of the demurrer and of this appeal, upon the opinion of Robson, J., in the case of Union Trust Co. v. Sickels (ante, p. 105), decided at this term of court. All concurred.

Rheims Wine and Vineyard Company, Appellant, v. Lake Keuka Vintage Company, Respondent. - Order affirmed, with ten dollars costs and disbursements. All concurred.

In the Matter of Proving the Last Will and Testament and Codicil of Henry Darwin Didama, Deceased. Elma E. Annas, Individually and as Executrix, etc., of Henry Darwin Didama, Deceased, Appellant; James B. Brooks and Others, Respondents.- Decree of Surrogate's Court reversed, with costs to appellant and one bill of costs to respondents on this appeal, payable out of the estate, and a trial of the following issues of fact directed to be had by and before a jury in the Supreme Court at a term thereof to be convened in the city of Syracuse, in and for the county of Onondaga, on the first Monday in May, 1908, to wit: First. 1. Did Henry D. Didama possess testamentary capacity at the time of the execution of the alleged will bearing date June 15, 1904? 2. Was the execution of said alleged will procured by fraud or undue influence practiced upon him? Second. 1. Did Henry D. Didama possess testamentary capacity at the time of the execution of the alleged codicil bearing date May 3, 1905? 2. Was the execution of said alleged codicil procured by fraud or undue influence practiced upon him? Held, there is sufficient doubt as to the correctness of the decision refusing probate to the will and codicil of the alleged testator, so that the questions of fact should be passed upon by a jury as provided in section 2588 of the Code of Civil Procedure. All concurred, except McLennan. P. J., not voting. Fred W. Rogers, Appellant, v. Cassius M. Hovey, Respondent. - Judgment affirmed, with costs. All concurred.

William N. D. Bird, Respondent, v. Albert G. Hatch, Appellant. - Interlocutory judgment affirmed, with costs. All concurred.

Mary I. Higgins, as Administratrix, etc., Respondent, v. Lake Shore and Michigan Southern Railroad Company, Appellant. - Judgment and order App. Div.]

Fourth Department, March, 1908.

reversed and new trial ordered, with costs to appellant to abide event. Held, that the finding of the jury that the defendant was guilty of negligence which caused the accident is contrary to and against the weight of the evidence. All concurred. John Friedman and Another, Appellants, v. John Ender and Others, Respondents.-Order affirmed, with ten dollars costs and disbursements. All concurred. John Friedman and Another, Appellants, v. John Ender and Others, Respondents.- Order affirmed, with ten dollars costs and disbursements. All concurred. Albert Taylor, Respondent, v. Erie Railroad Company and Cornelius Daly, Appellants.-Judgment and order affirmed, with costs. All concurred.

Catherine Newman, as Administratrix, etc., of Frank L. Newman, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.-Judgment and order affirmed, with costs. All concurred, except Kruse, J., who dissented.

Frank G. Noetzel, Appellant, v. Martin Betsch, Respondent.-Judgment affirmed, with costs. All concurred.

John Keefe, Respondent, v. Benjamin F. Lee and George W. Lee, Appellants. - Judgment and order affirmed, with costs. All concurred, except Robson, J., who dissented.

S. D. Viets Company, Appellant, v. Edwin P. Rector, Respondent. - Judgment affirmed, with costs. All concurred.

Louis Burkhard, Respondent, v. The Norwich Brewing Company, Appellant. Judgment affirmed, with costs. All concurred.

Charles Hebblethwaite, Jr., Respondent, v. Lehigh Valley Railroad Company, Appellant.-Judgment and order affirmed, with costs. All concurred, except Robson, J., not voting.

Frank T. Jones, Respondent, v. Frank O. Anderson, Appellant. - Judgment and order affirmed, with costs. All concurred, except Williams, J., who dissented. Dora Post Watts, Respondent, v. Frederick J. Franz, Appellant. - Judgment and order affirmed, with costs. All concurred.

Henry C. Burke, Appellant, v. The Owasco River Railway, Respondent.Order affirmed, with costs. All concurred.

Albert J. Pelow, an Infant, by Lucy Pelow, His Guardian ad Litem, Respondent, v. Oil Well Supply Company, Appellant. - Judgment and order affirmed, with costs. All concurred, except McLennan, P. J., who dissented, upon the authority of Fasani v. New York Central & H. R. R. R. Co. (109 App. Div. 404).

James O. Sebring and Warren J. Cheney, Respondents, v. Harriet A. BerneAllen, Appellant. - Order affirmed, with ten dollars costs and disbursements. All concurred.

John Tiernan, Respondent, v. Norman E. Mack, Appellant. - Order affirmed, with ten dollars costs and disbursements, without prejudice to an application by defendant, to be made at Special Term within ten days, for leave to serve answer as matter of favor upon terms. All concurred.

Sarah C. Conklin, Appellant, v. Business Men's Association of Hammondsport, New York, Respondent. - Judgment and order affirmed, with costs. All concurred, except Kruse, J., who dissented.