against Lucile C. Becker, individually and as administratrix, etc., and others. No opinion. Motion for leave to appeal to _Court of Appeals denied, with $10 costs. For former decision, see 147 N. Y. Supp. 1103. City, for appellant. L. G. McAneny, of New York City, for respondent. No opinion. Judg ment affirmed, with costs. Order filed. COMER, Appellant, v. CONEY ISLAND & B. R. CO., Respondent. (Supreme Court, CLAUSON et al., Appellants, v. CLAUSON Appellate Division, Second Department. May et al., Respondents. (Supreme Court, Appel- 25, 1914.) Action by John T. Comer against late Division, Second Department. May 15, the Coney Island & Brooklyn Railroad Com1914.) Action by John H. Clauson and anoth-pany. No opinion. Order affirmed, costs to er against Henry P. Clauson and others. No abide the event. opinion. Judgment affirmed, with costs. CLEMENT et al. v. SARATOGA HOLDING CO. et al. (Supreme Court, Appellate Division, Third Department. May 21, 1914.) Action by John B. Clement and another, as executors, etc., against the Saratoga Holding Company and others. PER CURIAM. Judgment modified, by providing that it shall not prejudice the rights of any of the parties to make claim for any surplus moneys which may remain in the hands of the trustee in bankruptcy after all the creditors of the Holding Company are paid, together with the fees and expenses of the trustee, and the provisions of the judgment fully performed. See, also, 146 N. Y. Supp. 1087. COFFIN V. TEVIS. RAMBAUT v. SAME. (Supreme Court, Appellate Division, First Department. May 22, 1914.) Actions by George M. Coffin and by Thomas D. Rambaut against William S. Tevis. No opinion. Motions to dismiss appeals denied, without costs. Orders filed. See, also, 150 App. Div. 925, 135 N. Y. Supp. 1105. COHN V. TANNER MOTOR CAR CO. (Supreme Court, Appellate Division, First Department. April 9, 1914.) Action by Isaac J. Cohn against the Tanner Motor Car Company. No opinion. Motion granted, with $10 costs, unless appellant comply with terms stated in order. Order filed. See, also, 147 N. Y. Supp. 574. COLARRISI, Respondent, V. POTATO CREEK R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. May 13, 1914.) Action by Pitero Colarrisi, an infant, etc., against the Potato Creek Railroad Company. PER CURIAM. Judgment and order affirmed, with costs. FOOTE, J., dissents, upon the ground that no negligence of Brice was shown. COLE, Respondent, v. HARRIS, Appellant. (Supreme Court, Appellate Division, Second Department. May 25, 1914.) Action by Ashley T. Cole against William M. Harris. No opinion. Order granting new trial unanimously affirmed, with costs. See Azzara v. Nassau Electric R. R. Co., 134 App. Div. 167, 118 N. Y. Supp. 830. COLOMBET, Appellant, V. TOURAINE CO., Respondent. (Supreme Court, Appellate Division, First Department. April 24, 1914.) Action by Jean B. Colombet against the Touraine Company. H. A. Andrewes, of New York COMMISSIONER OF PUBLIC CHARITIES OF CITY OF NEW YORK, Respondent, V. SANDMAN, Appellant. Court, Appellate Division, Second Department, (Supreme May 1, 1914.) Action by the Commissioner of Public Charities of the City of New York, ton Sandman. on complaint of Lillian Rushford, against Milof the Court of Special Sessions affirmed. No opinion. Order of filiation TENCH CO., Appellant. (Supreme Court, ApCONAHAN, Respondent, V. TERRY & 1914.) Action by Daniel Conahan against the pellate Division, Second Department. May 15, Terry & Tench Company. PER CURIAM. The order excludes from the examination portions of plaintiff's history peculiarly within his knowledge, and his physical conditions at periods that should be known to determine the nature, extent, or progress of his injury. Order modifying the order of examination reversed, with $10 costs and disbursements, with direction that plaintiff appear for examination upon two days' notice to his attorneys. CONDESSO, Respondent, v. RAY PUBLISHING CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 18, 1914.) Action by Lizzie Condesso against the Ray Publishing Company. PER CURIAM. Judgment and order affirmed, with costs. MERRELL, J., dissents, upon the ground that the verdict is excessive. CONTENT et al., Respondents, v. ROBERTSON, Appellant. (Supreme Court, Appellate Division, First Department. Action by Harry Content and others against May 8, 1914.) Sarah L. Robertson. A. Benedict, of New York City, for appellant. H. L. Scheuerman, of New York City, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. COPLAND-RAYMOND CO., Respondent, v. GOTTFRIED et al., Appellants. (Supreme Court, Appellate Division, First Department. May 29, 1914.) Action by the Copland-Ray mond Company against Elias Gottfried and others. J. J. Lesser, of New York City, for appellants. M. Herzfeld, of Brooklyn, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. COUTANT v. MASON. (Supreme Court, Appellate Division, First Department. April 9, 1914.) Action by Margaret B. Coutant against Jennie C. Mason. No opinion. Motion granted. Order filed. See, also, 160 App. Div. 575, 145 N. Y. Supp. 785. PER CURIAM. Judgment and order affirmed, with costs. Held: (1) That the defendant's motion for a nonsuit and dismissal of the complaint was properly denied. (2) That the question of the power of the health officer to quarantine the plaintiff, if he acted in good faith and had reasonable cause to believe that the plaintiff was infected and liable to communicate disease to others, was not raised at the trial by any exception to the charge or otherwise. MERRELL, J., dissents, upon the ground that, while the question referred to was not properly raised, this court has the power to, and should, pass upon that question. CREAM OF WHEAT CO., Respondent, v. KNOWLTON, Appellant. (Supreme Court, Appellate Division, Fourth Department. April 29, 1914.) Action by the Cream of Wheat Com pany against Daniel E. Knowlton. No opinion. Judgment and order affirmed, with costs. CROCKER-WHEELER CO., Appellant, v. GENESEE RECREATION CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. April 4, 1914.) Action by the Crocker-Wheeler Company against the Genesee Recreation Company. For former opinion, see 160 App. Div. 373, 145 N. Y. Supp. 477. See, also, 146 N. Y. Supp. 1088. PER CURIAM. Upon the reargument, order reversed, with costs, and judgment directed for the plaintiff upon the verdict, with costs, awarding possession of the two larger generators to the plaintiff, or, in the alternative, for the sum of $1,328, with interest thereon from the 25th 147 N.Y.S.-70 day of December, 1907, and awarding possession of the smaller generator to the defendant. KRUSE, P. J., and MERRELL, J., dissent, and vote for affirmance. CROSS, AUSTIN & IRELAND LUMBER CO. v. HADDEN et al. (Supreme Court, Appellate Division, Second Department. May 8, 1914.) Action by the Cross, Austin & Ireland Lumber Company against Archibald Hadden, the A. Hadden Company, the Bayside Lumber Company, and another. No opinion. Order affirmed, without costs. See, also, 160 App. Div. 892, 144 N. Y. Supp. 1110. CROTTY, Respondent, v. ERIE R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 24, 1914.) Action by Michael Crotty against the Erie Railroad Company. No opinion. Motions for reargu ment and for leave to appeal to the Court of Appeals denied. For former decision, see 146 N. Y. Supp. 1088. CUMMINS, Appellant, v. LARKIN et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. March 25, 1914.) Application of John J. Cummins, in behalf of himself and all other persons similarly situated, etc., against Albert E. Larkin and others, for a peremptory writ of mandamus to examine cards containing names and addresses of parents and guardians of students in the high schools of the city of Syracuse, etc. PER CURIAM. Order affirmed, with costs. MERRELL, J., dissents. In re CUNNINGHAM. (Supreme Court, Appellate Division, First Department. May 8, 1914.) In the matter of Daniel Cunningham, deceased. No opinion. Motion to dismiss appeal granted, with $10 costs, unless appellant comply with terms stated in order. Order filed. See, also, 159 App. Div. 910, 144 N. Y. Supp. 1111; 147 N. Y. Supp. 1105. Appellate Division, First Department. May 8, In re CUNNINGHAM. (Supreme Court, 1914.) In the matter of Daniel Cunningham, deceased. No opinion. Motion denied, with $10 costs. Order filed. See, also 147 N. Y., Supp. 1105. Appellant. (Supreme Court, Appellate Division, First Department. May 22, 1914.) Action by Robert I. Curran against August Oppenheimer. E. G. Kremer, of New York City, for appellant. A. S. Andrews, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. See, also, 143 App. Div. 271. 128 N. Y. Supp. 9. CURRAN, Respondent, v. OPPENHEIMER, CURRO, Respondent, v. NEW YORK, O. & W. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 11, 1914.) Action by Onofrio Curro against the New York, Ontario & Western Railroad Company. No opinion. Judgment and order reversed, and complaint dismissed, with costs, including the costs of this appeal. Held, that plaintiff failed to show that he was free from contributory negligence, and the motion for the direction of a verdict for the defendant should have been granted. Order modified in 147 N. Y. Supp. 1106. CURRO, Respondent, v. NEW YORK, O. & W. R. Co., Appellant. (Supreme Court, Appellate Division, Fourth Department. April 1, 1914.) Action by Onofrio Curro against the New York, Ontario & Western Railroad Company. No opinion. Motion granted, amending order of reversal entered the 11th day of March, 1914 (147 N. Y. Supp. 1105), so as to provide for the granting of a new trial, instead of judgment dismissing the complaint. Rehearing denied 147 N. Y. Supp. 1106. CURRO, Respondent, v. NEW YORK, O. & W R. Co., Appellant, (Supreme Court, Appellate Division, Fourth Department. May 6, 1914.) Action by Onofrio Curro against the New York, Ontario & Western Railroad Company. No opinion. Motion for reargument denied, with $10 costs. For former decision, see 147 N. Y. Supp. 1105, 1106. DAUER, Respondent, v. DUNCAN, Appellant, et al. (Supreme Court, Appellate Division, Second Department. April 10, 1914.) Action by John M. Dauer against William J. Duncan and Earl J. Helmick. No opinion. Judgment affirmed, with costs. DAVID P. LEAHY REALTY CO. v. WEST et al. (Supreme Court, Appellate Division, Second Department. May 25, 1914.) Action by the David P. Leahy Realty Company against Augustus A. West and another. No opinion. Order affirmed, with $10 costs and disburse ments. DAVIS v. LEVERING. (Supreme Court, Appellate Division, First Department. May 8, 1914.) Action by William H. Davis against Richmond Levering. M. G. Holstein, of New York City, for plaintiff. T. A. Eager, of New York City, for defendant. No opinion. Order affirmed, without costs. Order filed. (Supreme DAVIS V. MCMAHON et al. Court, Appellate Division, First Department. April 24, 1914.) Action by Annie Davis against Cecil H. McMahon, as executor, etc., and others. No opinion. Motion granted. Order filed. See, also, 161 App. Div. 458, 146 N. Y. Supp. 657. DEAN et al., Respondents, v. McMULLIN, Appellant, et al. (Supreme Court, Appellate Division, Fourth Department. May 6, 1914.) Action by Barnabas A. Dean and another against Fred S. McMullin, impleaded with others. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Held that, the amount of the claim being disputed by plaintiffs they were not entitled to an order of interpleader. Baltimore & Ohio R. R. Co. v. Arthur, 90 N. Y. 234. by chapter 285 of the Laws of 1908, adding The amendment to the Code of Civil Procedure section 820a, did not change the rule of law in that respect. DE CILLIS, Respondent, v. MASCELLI, Appellant. (Supreme Court, Appellate Division. Fourth Department. April 1, 1914.) Action individually and as executrix, etc. No opinion. by Paul De Cillis against Maria H. Mascelli, Order affirmed, with $10 costs and disbursements. See, also, 152 App. Div. 304, 136 N. Y. Supp. 573. DEEGAN, Appellant, v. NEWTON, Respondent. (Supreme Court, Ap! ate Division, Second Department. May 8, 1914.) Action by John E. Deegan, an infant, etc., against Homer C. Newton. No opinion. Motion to dismiss appeal denied, without costs, without prejudice, however, to a renewal thereof in the event the appeal is not speedily prosecuted. DEITCH, Appellant, v. DEITCH, Respondent. (Supreme Court, Appellate Division, Second Department. May 25, 1914.) Action by Ida Deitch against Philip Deitch. No opinion. Motion for leave to appeal to the Court of Appeals granted, and question certified. For former opinion, see 146 N. Y. Supp. 1019. DE KLEINWASCHTER, Respondent, v. MeDERMOTT et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 10, 1914.) Action by Louis De Kleinwaschter, as administrator, etc., of Ignatz Maczak, deceased, against one McDermott and another. No opinion. Order affirmed, costs to abide the event. DE LAGOTELLERIE, Respondent, v. AUTOMOBILE TIRE CO., Appellant. (Supreme Court, Appellate Division, First Department. April 17, 1914.) Action by one De Lagotellerie DENNIN, Respondent, v. WOOD et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. April 1, 1914.) Action by Hannah C. Dennin against Hiram R. Wood and others, as executors, etc. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Held, that the personal representatives of the several deceased joint tortfeasors may not be joined as parties defendants in one action. Rehearing denied, leave to appeal to Court of Appeals granted, and question certified, 147 N. Y. Supp. 1107. ROBSON, J., dissents. trial and dismissing the complaint, should be reversed, with costs in this court and in the Appellate Term, and the order of the City Court affirmed. DE RAISMES v. UNITED STATES LITH(Supreme Court, OGRAPH CO. et al. (2 cases). Appellate Division, First Department. April 9, 1914.) Action by Francis J. J. De Raismes against the United States Lithograph Company and others. No opinion. Motions granted, questions certified, and orders filed. See, also, 146 N. Y. Supp. 813. In re DEVOY, County Clerk. (Supreme Court, Appellate Division, Second Department. April 24, 1914.) In the matter of the application of Charles S. Devoy, County Clerk of Kings County, for an order authorizing the destruction of books and papers. No opinion. Motion granted in part. Settle order on notice before Mr. Justice Rich. DICK et al. v. SCHMER, State Comptroller. (Supreme Court, Appellate Division, Third De partment. May 21, 1914.) In the matter of the application of Evans R. Dick and others, copartners doing business as Dick Bros. & Co., for a peremptory writ of mandamus against William Sohmer, as Comptroller of the State of New York. No opinion. Motion granted. See, also, 81 Misc. Rep. 522, 143 N. Y. Supp. 475; 145 N. Y. Supp. 1120. In re DICK'S WILL. (Supreme Court, Appellate Division, Second Department. April 10, 1914.) In the matter of the application for the probate of the last will and testament of Louisa O. Dick, deceased. No opinion. Decree of the Surrogate's Court of Queens County affirmed, with costs of appeal payable out of the estate. DENNIN, Respondent, v. WOOD et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. May 6, 1914.) Action by Hannah C. Dennin against Hiram R. Wood and others, as executors, etc. No opinion. Motion for reargument denied. Motion for leave to ap-spondent. (Supreme Court, Appellate Division, DICKEY, Appellant, v. GORTNER, Repeal to Court of Appeals granted, and question Second Department. April 24, 1914.) Action for review certified. For former decision, see by Paul Dickey against Christopher A. Gort147 N. Y. Supp. 1107. DESSAR, Respondent, v. HIRSCH et al., Appellants. (No. 5881.) (Supreme Court, Appellate Division, First Department. May 29, 1914.) Appeal from Appellate Term, First Department. Action by Leo C. Dessar, as executor, against Charles S. Hirsch and others, as executors. An order of the City Court denying plaintiff's motion to set aside a verdict for defendant and for a new trial was reversed by the Appellate Term (145 N. Y. Supp. 51), and judgment ordered in favor of plaintiff, and defendants appeal. Reversed, and order of City Court affirmed. See, also, 146 N. Y. Supp. 1089. Sidney Bernheim, of New York City, for appellants. Emanuel J. Myers, of New York City, for respondent. PER CURIAM. We think there was a question of fact as to whether the person writing the letter was an agent of the decedent and authorized to make a lease of the property for her, which was fairly submitted to the jury, and its verdict should not be disturbed. It follows that the determination of the Appellate Term, reversing the order denying a motion for a new ner. PER CURIAM. Motion denied, without costs. See, also, 146 N. Y. Supp. 1089; 147 N. Y. Supp. 1107. CARR, J., takes no part. DICKEY, Appellant, v. spondent. (Supreme Court, Appellate Division, GORTNER, ReSecond Department. by Paul Dickey against Christopher A. Gortner. May 25, 1914.) Action PER CURIAM. Motion for leave to appeal to the Court of Appeals denied. We decided a similar application adversely to the appellant on November 7, 1913. The appellant, appealing leave. He could appeal as a matter of right, if from a final judgment in equity, does not require he took his appeal seasonably. If he did not, by granting leave. See, also, 147 N. Y. Supp. we cannot extend his time to appeal indirectly 1107. CARR, J., takes no part. DIDIER, Appellant, v. CLARK, Respondent. (Supreme Court, Appellate Division, First Department. May 22, 1914.) Action by Joseph A. Didier against Frank C. Clark. E. D. Bol- | ton, of New York City, for appellant. A. S. Bacon, of New York City, for respondent. No opinion. Judgment affirmed, with costs. Order filed. See, also, 150 App. Div. 903, 135 N. Y. Supp. 1108. executrix, against the H. C. & A. I. Piercy Contracting Company. No opinion. Motion denied, with $10 costs. Order filed. See, also, 147 N. Y. Supp. 73 DUFFY, Appellant, v. PLACE, Respondent. (Supreme Court, Appellate Division, First Defy against James E. Place. N. Blank, of New York City, for appellant. H. C. Allen of New York City, for respondent. No opinion. Order, so far as appealed from, reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Order filed. . DIETELBAUM v. PACH, PHOTOGRA-partment. May 8, 1914.) Action by Owen DufPHER, Inc. (Supreme Court,' Appellate Term, First Department. June 3, 1914.) Appeal from Municipal Court, Borough of Manhattan, Fourth Department. Action by Isidor Dietelbaum, doing business as the Central Cornice Works, against Pach, Photographer, Incorporated. Judgment for the plaintiff, and defendant appeals. Affirmed. Neil P. Cullom, of New York City, for appellant. Herman Turkel, of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. GUY and BIJUR, JJ., concur. PENDLETON, J. (dissenting). The action is brought against the defendant corporation to hold it liable for damages for failure to allow plaintiff to carry out a contract for the construction of a skylight. Plaintiff claims the contract was negotiated by one Morris for defendant, and was ratified by defendant after its incorporation. To establish this, he relies on alleged conversations with Morris and Pach, alleged officers of defendant company. The evidence as to the ratification by defendant was conflicting, and presented an issue for the jury. By the rulings at the end of the evidence, the court, in effect, refused to leave the question of defendant's ratification to the jury, treating it, apparently, as a question of law only, and practically, in effect, told the jury not to consider that question. To this defendant excepted. This was error. The judgment should be reversed, and a new trial granted, with costs to appellant to abide the event. DIOMEDE, Respondent, v. BUFFALO CAR WHEEL FOUNDRY CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 11, 1914.) Action by Sam Diomede against the Buffalo Car Wheel Foundry Company. No opinion. Judgment affirmed, with costs. DOELL, Respondent, v. WILLIAM S. RILEY CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. May 6, 1914.) Action by Henry F. Doell against the William S. Riley Company. No opinion. Judgment affirmed, with costs. DONLON, Respondent, v. SOLVAY PROCESS CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. March 25, 1914.) Action by William Donlon against the Solvay Process Company. No opinion. Judgment and order affirmed, with costs. DONNELLY v. H. C. & A. I. PIERCY CONTRACTING CO. (Supreme Court, Appellate Division, First Department. May 22, 1914.) Action by Theresa M. Donnelly, as ancillary DUKE, Respondent, v. AMERICAN MUSEUM OF NATURAL HISTORY, Appellant. (Supreme Court, Appellate Division, First Department. May 1, 1914.) Action by Frank Duke against the American Museum of Natural History. E. C. Sherwood, of New York City, for appellant. A. O. Townsend, of New York City, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. See, also, 158 App. Div. 919, 143 N. Y. Supp. 1114; 147 N. Y. Supp. 1108. DUKE v. AMERICAN MUSEUM OF NATURAL HISTORY. (Supreme Court, Appellate Division, First Department. May 22, 1914.) Action by Frank Duke against the American Museum of Natural History. No opinion. Motion granted. Order filed. See, also, 147 N. Y. Supp. 1108. DURAND v. GREGORY et al. Court, Appellate Division, Fourth Department. (Supreme March 11, 1914.) Action by John E. Durand, others, as executors, etc., and another. No opinas executor, etc., against John H. Gregory and ion. Action upon the submission dismissed, without costs, except actual disbursements. Held, that the plaintiff has no equitable right to compel the defendant Central Bank to proceed against the Wilder estate. Settle order before Mr. Justice Merrell on two days' notice. Motion for rehearing denied, 147 N. Y. Supp. 1108. DURAND v. GREGORY et al. (Supreme Court, Appellate Division, Fourth Department. March 25, 1914.) Action by John E. Durand, as executor, etc., against John H. Gregory and others, as executors, etc., and another. No opinion. Motion for reargument denied. For former decision, see 147 N. Y. Supp. 1108. DWYER V. GREENBLATT. Court, Appellate Division, First Department. (Supreme May 8, 1914.) Action by Elizabeth Dwyer against Louis Greenblatt. No opinion. Motion to dismiss appeal granted, with $10 costs, unless. appellant comply with terms stated in order. Order filed. EDWARDS, Appellant, V. COAL TAR PRODUCT CO., Respondent. (Supreme Court, Appellate Division, Second Department. May 1, 1914.) Action by Thomas Edwards against the Coal Tar Product Company. No opinion. Judgment and order unanimously affirmed, with costs. |