MEMORANDA

OF

DECISIONS RENDERED DURING THE PERIOD EMBRACED IN THIS VOLUME.

LLOYD G. MCCRUM, Appellant, v. LEX REALTY COMPANY et al., Respondents.

McCrum v. Lex Realty Co., 122 App. Div. 922, affirmed. (Argued June 8, 1909; decided October 5, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 17, 1908, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action to compel specific performance of an alleged contract to convey real property.

William P. Maloney for appellant.

Richard T. Greene and E. W. Tyler for respondents.

Judgment affirmed, with costs; no opinion.

Concur: CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and CHASE, JJ.

Mary A. GuilfOYLE, Appellant, v. CATHERINE E. PIERCE et al., Respondents.

Guilfoyle v. Pierce, 125 App. Div. 504, affirmed.

(Submitted June 8, 1909; decided October 5, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered April 10, 1908, reversing a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term

and granting a new trial in an action to set aside a deed on the ground of fraud.

Franklin Bien for appellant.

John M. Gardner for respondents.

Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts; no opinion.

Concur: CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, VANN and CHASE, JJ. Not voting: WILLARD BARTLETT, J.

MATTHEW M. GOGGIN et al., Respondents, v. MANHATTAN RAILWAY COMPANY et al., Appellants.

Goggin v. Manhattan Railway Co., 124 App. Div. 644, reversed. (Argued June 8, 1909; decided October 5, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 23, 1908, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at Special Term and granting a new trial in an action to restrain the operation and maintenance of an elevated railway in front of certain premises and for damages.

J. Osgood Nichols and Alfred A. Gardner for appellants.

Charles II. Strong for respondents.

Order of Appellate Division reversed and judgment of Special Term affirmed, with costs in both courts, on dissenting opinion of HOUGHTON, J., below.

Concur: CULLEN, Ch. J., GRAY, HAIGHT, VANN, WILLARD BARTLETT and CHASE, JJ. Dissenting: EDWARD T. BARTLETT, J.

THE COUNTY OF ERIE, Appellant and Respondent, v. JACOB W. DIEHL et al., Respondents and Appellants.

County of Erie v. Diehl, 129 App. Div. 735, affirmed. (Argued June 8, 1909; decided October 5, 1909.)

CROSS-APPEALS from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered February 25, 1909, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at an Equity Term in an action to recover upon a county treasurer's bond.

Philip A. Laing and Thomas A. Sullivan for plaintiff, appellant and respondent.

W. C. Carroll for defendants, respondents and appellants. Judgment affirmed, without costs, on opinion of SPRING, J., below.

Concur: CULLEN, Ch. J., EDWARD T. BARTLETT, WILLARD BARTLETT and CHASE, JJ. Dissenting: GRAY, HAIGHT and VANN, JJ.

FRANK DONLEY, Respondent, v. GLENS FALLS INSURANCE COMPANY, Appellant.

Donley v. Glens Falls Ins. Co., 126 App. Div. 922, affirmed. (Argued June 8, 1909; decided October 5, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered June 2, 1908, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover upon a policy of fire insurance. Hiram R. Wood for appellant.

Calvin J. Huson for respondent.

Judgment affirmed, with costs, on authority of Donley v. Glens Falls Insurance Company (184 N. Y. 107); no opinion. Concur: CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and CHASE, JJ.

THE BROOKLYN HEIGHTS RAILROAD COMPANY, Respondent, v. THE BROOKLYN CITY RAILROAD COMPANY, Appellant. Brooklyn Heights R. R. Co. v. Brooklyn City R. R. Co., 124 App. Div. 896, affirmed.

(Argued June 8, 1909; decided October 5, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered February 3, 1908, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action by a lessee to recover from the lessor the cost of construction of a certain building.

William C. De Witt for appellant.

Edward W. Hatch, John L. Wells and George D. Yeomans for respondent.

Judgment affirmed, with costs; no opinion.

Concur: CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and CHASE, JJ.

TRACY W. PRATT, Appellant, v.. WILLIAM I. CLARK et al., as Executors of and Trustees under the Will of CHARLOTTE M. GOODRIDGE, Deceased, et al., Respondents.

Pratt v. Clark, 118 App. Div. 633, appeal dismissed. (Submitted June 9, 1909; decided October 5, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 16, 1907, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court on trial at Special Term in an action to compel specific performance of certain contracts.

Samuel Untermeyer and Clarence F. Birdseye for appellant. Charles I. McBurney and Albert Stickney for respondents. Appeal dismissed, without costs, on stipulation of parties; no opinion.

Concur CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT and CHASE, JJ.

JAMES B. RATHBONE, as Trustee in Bankruptcy of the ELMIRA
STEEL COMPANY, Respondent, v. F. WAYLAND AYER,
Appellant, Impleaded with Others.

Rathbone v. Ayer, 121 App. Div. 355, reversed.
(Argued June 9, 1909; decided October 5, 1909.)

APPEAL from an order of the Appellate Division of the Supreme Court in the third judicial department, entered September 18, 1907, reversing a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term and granting a new trial in an action to recover moneys alleged to have been wrongfully withdrawn from the assets of the Elmira Steel Company by defendant, a director thereof.

David B. Hill, O. U. Kellogg and H. H. Rockwell for appellant.

Frederick Collin and Edward G. Herendeen for respondent.

Order of Appellate Division reversed and judgment of Trial Term affirmed, with costs in both courts, on dissenting opinion of KELLOGG, J., below.

Concur: CULLEN, Ch. J., GRAY, EDWARD T. BARTLETT, HAIGHT, VANN and WILLARD BARTLETT, JJ. Not sitting: CHASE, J.

JAMES B. SWING, as Trustee for the Creditors of THE UNION MUTUAL FIRE INSURANCE COMPANY OF CINCINNATI, Appellant, v. GEORGE A. DAYTON, Respondent.

Swing v. Dayton, 124 App. Div. 58, affirmed.
(Argued June 10, 1909; decided October 5, 1909.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered January 22, 1908, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term in an action to recover an assessment