App. Div.]

An examination of this record seems to show that a recovery was had in this case because another party had succeeded in obtaining a judgment in another action. But the crucial proof which sustained the judgment which was affirmed by this court is entirely absent from the case at bar. In the case of Pitcher v. Lennon (12 App. Div. 356) the defendant was held liable because it was established that he superintended the erection, gave directions as to what should be done, furnished the plans to the contractors which contravened the law, supplied the materials and ordered the granite blocks and templates whose too narrow distribution of weight caused the fall and violated the statute. In the case at bar there is no such proof as this. No plans or specifications are in evidence, and nothing is shown as to their contents, nor does the participation of the defendant appear, and the case seems to be fatally defective in that regard. It is true that there is evidence that the defendant was around the premises for a little while almost every day, but it is further in evidence that he did not interfere with the mechanical construction when the wall was being built. It is claimed by the respondent that the defendant is liable in contracting for and directing an unlawful act in violation of the statute to one injured thereby. But as has already been shown, there is no evidence that he either contracted for the thing done, or had anything to do in respect to its direction. The absence of the plans seems to be fatal to the plaintiff's judgment in the case at bar. The judgment and order should be reversed and a new trial ordered, with costs to the appellant to abide event. Barrett, Rumsey. Ingraham and McLaughlin, JJ., concurred.

John Cullen, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.— Judgment affirmed, with costs.

Pres

PER CURIAM: This action grew out of the same occurence as the case of Carroll v. The Mayor (ante, p. 420). It involves precisely the same facts, was tried at the same time and the considerations which have been i stated in the case of Carroll v. The Mayor require an affirmance as in that case. ent Van Brunt, P. J., Barrett, Rumsey, Ingraham and McLaughlin, JJ. Augusta C. Davidson, Respondent, v. George L. Davidson, Appellant.- Judgment firmed, with costs.- Appeal from order di-, recting judgment on the pleadings, and from such judgment.

af

PER CURIAM: Judgment was properly directed upon the pleadings. The action was brought upon a stipulation and to recover amounts agreed to be paid, and was, therefore, upon a new contract. The consideration for that contract was the withholding. of remedies to enforce the judgment referred to in the complaint. Nothing in the stipulation set up in the answer constituted a defense. It was agreed that the motion referred to in the stipulation should be withdrawn on certain conditions. It was withdrawn and the conditions were not complied with. There was nothing in the stipulation that prevented a renewal of the motion to punish for contempt in case the payments were not made under the stipulation, but the defendant bound himself to the payments in view of the motion being withdrawn at the time at which it was withdrawn. The order of the court below directing judgjudgment was plainly correct and the judgment should be affirmed, with costs. Present-Patterson, Rumsey, O'Brien and Ingraham, JJ.

Timothy Mahoney, Appellant, v. Allen W. Adams and Others, Respondents.-- Order reversed and motion granted, without costs of this appeal or in the court below. Appeal from an order denying motion for leave to serve supplemental summons and complaint and to amend the summons and complaint heretofore served.-—

INGRAHAM, J.: We think this motion should have been granted. Many of the changes which are sought to be made by the supplemental and amended pleading are to correct the names of the parties where the names were unknown at the time of the commencement of the action, and to bring in the personal representatives of those who are dead; the receivers are also sought to be made parties defendant in order to obviate an objection taken by some of the defendants that there is a defect of parties defendant in that the receivers are not parties to the action. The objection that this plaintiff had no right to maintain the action in consequence of the provisions of chapter 441 of the Laws of 1897, should not be disposed of upon this motion. The question whether or not that act is retroactive and applies to actions pending at the time of the enactment of the statute should be left to be determined upon the trial and not upon a motion of this character. When the action was commenced, a stockholder had a right to bring such an action, and there is some doubt as to whether or not the provisions of this statute would apply to an action pending at the time the statute was enacted. Without expressing an opinion on that question, we think the plaintiff should be allowed to make the necessary amendments to the summons and complaint so as to present the question and have it determined in the ordinary way upon the trial. The order appealed from should be reversed and the motion granted, without costs of this appeal or in the court below. Patterson, Rumsey and O'Brien, JJ.,

concurred.

Charles B. Keen and William Y. Carver, Appellants, v Charles A. Johnson, Respondent.-Order, so far as it grants motion to strike cause from Special Term calendar affirmed. So much of order as grants leave to either party to make further application, stricken out. No costs to either party of this appeal.-Appeal from order striking cause from Special Term calendar.PER CURIAM: The order, so far as it directs that this cause should be stricken from the Special Term calendar was proper. The action should be tried at a Trial Term of the court, where it properly belongs. So much of the order, therefore, as grants the motion to strike the cause from the Special Term calendar, with costs, should be affirmed. But the court below, having all the facts before it, should not have provided for a further application as to the mode of trial. So much of the order, therefore, as grants leave to either party to apply as he may be advised for an order directing the mode of trial of issues in the action should be stricken out. No costs to either party of this appeal. Present Barrett, Rumsey, O'Brien and McLaughlin, JJ.

The West End Trust and Safe Deposit Company, Appellant, v. Charles A. Johnson, Respondent.-Order, so far as it grants motion to strike cause from Special Term calendar affirmed. So much of order as grants leave to either party to make further application, stricken out. No costs to either party of this appeal.--Appeal from order striking cause from Special Term calendar.PER CURIAM: The order, so far as it directs that this cause should be stricken from the

App. Div.]

Insurance Company of New York, Respond ent.- Order affirmed, with costs. No opinion. Stevens Voisin, Appellant, v. The Commercial Mutual Insurance Company Respondent.-Order affi med, without costs, ou condition that defendant stipulate to comply with the terms imposed by the order appealed from within two days after the costs shall have been taxed; if such stipulation be not given order reversed, with ten dollars costs and disbursements No opinion

Charles H. Meyer and Frederick Delvigne, Appellants, v. Albrecht Pagenstecher, Respondent, Impleaded with Others.- Order af-· firmed, with ten dollars costs and disbursements. No opinion.

Lewella C. Oakes. Respondent, v. Francis J. Oakes and Adelene E. Oakes. Appellants, Impleaded with Others.-Order affirmed, with ten dollars costs and disbursements. No opinion.

Rudolph Heydenreich, Respondent, v. Gustav Adolph Lehmann, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion.

Leopold Stern and Others, Appellants, v. Isaac Rapoport, Respondent, Impleaded with Leopold Newmark.--Order affirmed, with ten dollars costs and disbursements. No opinion. The People of the State of New York ex rel. Thomas Purtle, Relator, v. James J. Martin and Others, Composing the Board of Police Commissioners of the Police Department of the City of New York, Respondents.-Proceedings affirmed, with costs. No opinion. S. Caroline Costello, Respondent, v. John H. Costello, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. George H. Laporte, v. Wells, Fargo & Company.- Motion granted, with ten dollars

Jewelers' Mercantile Agency v. Alonzo Rothschild and Another.- Motion denied, with ten dollars costs.

Harry W. Dean, Executor, etc., v. Milton M. Canfield and Another.- Motion denied, upon payment of ten dollars costs.

In the Matter of Anna Muller.-Motion denied, with ten dollars costs.

Bridget Connor v. The Mayor, etc. Motion denied, with ten dollars costs.

Peter Stephen v. Margaret Stephen.- Motion granted, with ten dollars costs.

Matter of John Catoir v. George F. Budeabender.- Application to continue the proceeding granted, and referee to be appointed to take proof and report with his opinion. Respondent's application denied.

Daniel J. Sullivan v. Howard E. Baker et al.-Motion denied, without prejudice to any further application that may be made by either party after the decision of the appeal from the order of Mr. Justice Freedman.