Second Department. January 31, 1907.) Ac- | education of the city of New York. No opinion. tion by Frank P. Martin against Herman Wer- Judgment affirmed by default, with costs. mann. No opinion. Motion for leave to appeal to the Court of Appeals denied. MIDDLEWORTH, Respondent, v. ORDWAY et al., Appellants. (Supreme Court, Appellate Division, Third Department. January 9, 1907.) Action by Sarah Middleworth against Mary M. Ordway, individually and as administratrix, etc., and others. PER CURIAM. Judgment unanimously affirmed, with costs. See 98 N. Y. Supp. 10. PARKER, P. J., not sitting. MILLER et al., Respondents, v. LEO et al., Appellants. (Supreme Court, Appellate Division, Third Department. January 9, 1907.) Action by Henry W. Miller, individually and as Director, and others against John P. Leo and another. PER CURIAM. Order affirmed, with $10 costs and disbursements. PARKER, P. J., not sitting. MILLS et al., Appellants, v. STROPPEL, Respondent. (Supreme Court, Appellate Division, Second Department. January 25, 1907.) Action by James W. Mills and another against Karl Stroppel. No opinion. Judgment and order affirmed, with costs. MENGIS, Respondent, v. FITZGERALD, Appellant. MINOR v. GARDEN. (Supreme Court, Ap(Supreme Court, Appellate Divi- pellate Division, First Department. sion, Second Department. January 15, 1907.) 18, 1907.) Action by Gilbert W. Minor against January Action by Morris C. Mengis against Louis Fitz-W. Morton Garden. No opinion. Motion grantgerald. No opinion. Motion for stay pending the appeal granted, without costs, on conditioned, with $10 costs. Order filed. the appellant argue the appeal when reached on the calendar. MENGIS, Respondent, v. FITZGERALD, Appellant. (Supreme Court, Appellate Division, Second Department. January 31, 1907.) Action by Morris C. Mengis against Louis Fitzgerald. PER CURIAM. Order affirmed, with $10 costs and disbursements. MILLER, J., dissents. In re MERILLON'S WILL. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) In the matter of proving the last will and testament of Cornelia Stewart Merillon, deceased, as a will of real and personal property. No opinion. Decree of the Surrogate's Court of Nassau County affirmed, with costs. MEYERHOFFER v. BAKER. (Supreme Court, Appellate Division, First Department. January 18, 1907.) Action by Sarah Meyerhoffer against Hyman D. Baker. No opinion. Application granted. Order signed. MIDDLETON. Respondent. v. BOARD OF EDUCATION OF CITY OF NEW YORK, Appellant. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) Action by Virginia F. Middleton against the board of In re MORRIS ST. IN CITY OF YONKERS. (Supreme Court, Appellate Division, Second Department. January 31, 1907.) In the matter of laying out and opening Morris street, city of Yonkers. No opinion. Appeal dismissed, with costs. and 136 New York State Reporter 1907.) Action by Antoinette Myers and others against Myron Peckins, as, etc., and others. PER CURIAM. Judgment affirmed, with costs. WILLIAMS, J., dissents, on the ground that the question of testator's competency should have been submitted to the jury. NEW YORK LIFE INS. & TRUST CO. v. POLSTEIN et al. (Supreme Court, Appellate Division, First Department. February 8, 1907.) Action by the New York Life Insurance & Trust Company against Isaac Polstein and others. H. Brill, for appellant. J. Fettretch, for respondents. No opinion. Order affirmed, with costs. Order filed. In re NIAGARA SANITARIUM CO. (Supreme Court, Appellate Division, Fourth Department. January 9, 1907.) In the matter of the re-election of directors of the Niagara Sanitarium Company. No.opinion. Order affirmed, with $10 costs and disbursements. NOACK v. CITY OF TROY. (Supreme Court, Appellate Division, Third Department. January 18, 1907.) Action by Bernard J. Noack against the city of Troy. No opinion. Motion denied. NUNNALLY v. NEW YORK ZEITUNG CO. (Supreme Court, Appellate Division, First Department. January 29. 1907.) Action by Florence Nunnally against the New York Zeitung Company. No opinion. Motion denied, with $10 costs. Order filed. O'BOYLE, Respondent, v. ERIE R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) Action by James J. O'Boyle against the Erie Railroad Company. No opinion. Judgment and order modified by striking out the provision for extra allowance on the ground of want of power in the court below to grant the same, and, as so modified, unanimously affirmed, without costs of this appeal. O'CONNELL, Respondent, v. SYRACUSE RAPID TRANSIT RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 16, 1907.) Action by Michael W. O'Connell against the Syracuse Rapid Transit Railway Company. No opinion. Interlocutory judgment affirmed, with costs, with leave to the defendant to plead over upon payment of the costs of the demurrer and of this appeal. O'CONNOR v. BURGARD. (Supreme Court, Appellate Division, Fourth Department. January 16, 1907.) Action by Patrick J. O'Connor against Henry P. Burgard. PER CURIAM. Defendant's exceptions sustained, and motion for new trial granted, with costs to the defendant to abide event. Held, that the evidence failed to establish actionable negligence on the part of the defendant, in that the accident which caused plaintiff's injury was PEOPLE v. FERONE. SAME v. WAY. PEOPLE ex rel. BAUM v. BUTLER. (Su(Supreme Court, Appellate Division, First De-preme Court, Appellate Division, First Departpartment. January 18, 1907.) Proceedings by ment. January 29, 1907.) Proceedings by the the people of the state of New York against people, on the relation of Joseph L. Baum, Joseph Ferone and Louise Way. No opinions. against Edmond J. Butler. No opinion. MoMotions denied. Orders filed. tion denied, with $10 costs. Order filed. PEOPLE v. HENSCHEL. (Supreme Court, Appellate Division, First Department. January 29, 1907.) Proceedings by the people of the state of New York against Emil Henschel. No opinion. Motion granted. Order filed. PEOPLE ex rel. LEHMKUHL et al., Respondents, v. GROUT, Comptroller, Appellant. (Supreme Court, Appellate Division, First Department. February 8, 1907.) Proceedings by the people of the state of New York, on the relation of Dora A. Lehmkuhl and others, PEOPLE, Respondent, v. HUSON, Appellant. against Edward M. Grout, as Comptroller. (Supreme Court, Appellate Division, Fourth De-G. S. Coleman, for appellant. J. A. Straley, partment. January 30, 1907.) Proceedings by for respondents. No opinion. Orders affirmed, the people of the state of New York against Wii- with costs and disbursements. liam Huson. No opinion. Motion for reargument denied. For former opinion, see 99 N. Y. Supp. 1081. PEOPLE v. MINGEY. SAME v. CURTIS. SAME v. FABER. SAME v. LEVIN. SAME v. SPIER. SAME v. DODDATO. SAME v. FRIBBINS. (Supreme Court, Appellate Division, First Department. January 18, 1907.) Proceedings by the people of the state of New York against Lawrence P. Mingey, same against George W. Curtis, same against Julia Faber, same against Louis Levin, same against Oscar A. Spier, same against Angelo Doddato, and same against Frank Fribbins. No opinions. Motions denied on condition that appellants have their appeals ready for argument at the March term. Orders filed. Order tiled. PEOPLE ex rel. LODES, Appellant, v. DEPARTMENT OF HEALTH OF CITY OF NEW YORK, Respondent. (Supreme Court, Appellate Division. Second Department. January 11, 1907.) Proceedings by the people of the state of New York, on the relation of George Lodes, against the department of Health of the city of New York, PER CURIAM. Order affirmed, with $10 costs and disbursements, on the opinion of Mr. Justice BURR at Special Term. 100 N. Y. Supp. 788. GAYNOR, J., concurs in result, on the ground that the board had no power to revoke the license. PEOPLE ex rel. PULLMAN, Appellant, v. SEELEY et al., Respondents. (Supreme PEOPLE, Appellant, v. RITENBURG, Re-Court, Appellate Division, Fourth Department. spondent. (Supreme Court, Appellate Division, January 23, 1907.) Proceedings by the people and 136 New York State Reporter of the state of New York, on the relation of evidence from which the trial justice might Betsy Pullman, as, etc., against R. Fenton infer a subsequent waiver or modification by Seeley and others. No opinion. Order modified the parties in relation to certain articles adby striking therefrom the last clause, and in-mitted by counsel for the plaintiff to have been serting in lieu thereof, "with $50 costs and included in the bill of sale. The judgment disbursements to the relator," and, as so mod- should therefore be affirmed, with costs. Judg. ified, the said order is affirmed, with $10 costs ment affirmed, with costs. All concur. and disbursements on this appeal. The costs herein specified are hereby awarded against the town of Waterloo. PEOPLE ex rel. TERRY, Respondent, v. KETCHAM, County Clerk, Appellant. (Supreme Court, Appellate Division, Second Department. January 25, 1907.) Proceedings by the people of the state of New York on the relation of Isaac G. Terry, against Solomon Ketcham, as county clerk of Suffolk county. No opinion. Appeal dismissed on argument, without costs, on the ground that the question presented is purely academic. PEOPLE ex rel. WERNER v. WEST SIDE BROTHERLY LOVE CONGREGATION & BENEFIT SOCIETY. (Supreme Court, Appellate Division, First Department. January 25, 1907.) Proceedings by the people of the state of New York, on the relation of Alexander Werner, against the West Side Brotherly Love Congregation & Benefit Society. J. Klein, for relator. M. D. Steuer, for respondent. No opinion. Judgment affirmed, with costs, with leave to the relator to withdraw demurrer on payment of costs in this court and in the court below. Order filed. In re PERRY AVE. (Supreme Court, Appellate Division, First Department. January 11, 1907.) In the matter of Perry avenue. No opinion. Reargument ordered. PERSONENI, Appellant, v. GOODALE, Respondent. (Supreme Court, Appellate Division, First Department. January 25, 1907.) Action by Joseph Personeni against John McG. Goodale, individually, etc. H. A. Forster, for appellant. H. B. Johnson, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. PRINCE V. SCHLESINGER. (Supreme Court, Appellate Division, First Department. January 29, 1907.) Action by Adolf Prince against Leo Schlesinger. No opinion. Motion granted. Order filed. REIBENNACHT, Respondent, V. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Third Department. January 9, 1907.) Action by John Reibennacht, an infant, by Frank Reibennacht, his guardian ad litem, against the New York Ac Central & Hudson River Railroad Company. PER CURIAM. Judgment unanimously affirmed, with costs. PETERSON, Respondent, v. HUFF, Appellant. (Supreme Court, Appellate Term.) February 11, 1907.) Appeal from Municipal Court, Borough of Manhattan, Tenth District. tion by Marion F. Peterson against Earle P. Huff. From a judgment for plaintiff, defendant appeals. Affirmed. Charles LaRue, for appellant. MacLEAN, J. Upon this appeal counsel for the defendant contends that evidence was improperly received, in contradiction of an express covenant to defend title in a bill of sale of chattels, referred to as plaintiff's Exhibit X, but not attached to the return, and made the basis of a counterclaim, to which the plaintiff was not required to make formal reply. Municipal Court Act, Laws 1902, p. 1541, c. 580, § 161. In view of the warranty of title ordinarily obtaining upon the sale of goods, whether it was stated in so many words or not in the bill of sale is, however, of no very material moment now, as there was sufficient PARKER, P. J., not sitting. Ac REICHE v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Third Department. January 18, 1907.) tion by Lena H. Reiche, administratrix, etc., of Alfred F. Reiche, deceased, against the New York Central & Hudson River Railroad Company. No opinion. Motion denied. In re RICHARDSON. (Supreme Court, Appellate Division, First Department. January 25, 1907.) In the matter of Benjamin Richardson, deceased. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. In re RICHARDSON. (Supreme Court, Ap- I denied on payment of $10 costs and on paypellate Division, First Department. January ment of an additional $10; leave given to apply 29, 1907.) In the matter of Benjamin Richard- below to open default. Order filed. son. No opinion. Motion denied. Order filed. RIPLEY, Respondent, v. SMITH et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 15, 1907.) Action by David Ripley against James A. Smith, and others. No opinion. Motion for resettlement of order denied. In re ROCHESTER, C., E. TRACTION CO. (Supreme Court, Appellate Division, Fourth Department. January 9, 1907.) In the matter of the application of, etc., the Rochester, Corning, Elmira Traction Company for an order direct ing the board of railroad commissioners to issue a certificate of public convenience and necessity, under section 59 of the railroad law. No opinion. Order to show cause, returnable January 28, 1907, granted. ROSENSTEIN, Respondent, v. NELSON, Appellant. (Supreme Court, Appellate Division, Second Department. January 18, 1907.) Ac tion by Israel J. Rosenstein against John F. Nelson. No opinion. Judgment of the Municipal Court affirmed, with costs. ROSENTHAL v. KOUBA et al. (Supreme Court, Appellate Division, First Department. January 29, 1907.) Action by Sigmund Rosenthal against Emil Kouba and another. No opinion. Application denied, with $10 costs. Order signed. ROSSENBACH v. SUPREME COURT, I. O. F. (Supreme Court, Appellate Division, Fourth Department. January 23, 1907.) Action by Theresa Rossenbach against the Supreme Court of Independent Order of Foresters. No opinion. Motion for reargument denied, with $10 costs. Motion to amend decision and order denied. For former opinion, see 101 N. Y. Supp. 890. RULEFF, Appellant. v. NEW YORK CENT. & H. R. R. CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. uary 23, 1907.) Action by Cora E. Ruleff, as, etc., against the New York Central & Hudson River Railroad Company. SCHNEIDER, Respondent, v. HEILBRON et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. January 9, 1907.) Action by George W. Schneider against Mary Heilbron and others. No opinion. Motion to modify decision and judgment granted. For former opinion, see 101 N. Y. Supp. 152. SCHOMACKER v. MICHAELS. (Supreme Court, Appellate Division, First Department. February 15, 1907.) Action by Dierck Schomacker against Sophia Michaels. No opinion. Motion for leave to appeal to Court of Appeals granted. Order filed. SCHRAENKLER, Respondent, v. NATIONAL CAR WHEEL CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 30, 1907.) Action by John Peter Schraenkler against the National Car Wheel Company. PER CURIAM. Judgment and order affirmed, with costs. ROBSON, J., not sitting. SCHREIBER, Respondent, v. ELKIN, Appellant. (Supreme Court, Appellate Division, First Department. January 25, 1907.) Action by Isaac Schreiber against Julia Elkin. S. F. Kneeland, for appellant. J. R. Schiff, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. SHAUGHNESS, Respondent, v. LIEBLER et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 25, 1907.) Action by Charles Shaughness against Theodore A. Liebler and another. No opinion. Judgment and order unanimously affirmed, with costs. SHAUGHNESS, Respondent, v. LIEBLER et al., Appellants. (Supreme Court, Appellate January 31, Division, Second Department. Jan1907.) Action by Charles Shaughness against Motion for leave to appeal to the Court of ApTheodore A. Liebler and another. No opinion. peals denied. PER CURIAM. Judgment and order affirmed, with costs. sitting. In re SLATER. (Supreme Court, Appellate SPRING, J., dissents. ROBSON, J., not Division, First Department. January 18, 1907.) In the matter of John Slater, deceased. No opinion. Motion granted, without costs. Settle SCHAEFFER, Respondent, v. BOULLE, Ap-order on notice. pellant. (Supreme Court, Appellate Division, First Department. February 8, 1907.) Ac- SMITH, Respondent, v. BARBER, Appellant. tion by John W. Schaeffer against Henri E. (Supreme Court, Appellate Division, First DeBoulle. E. Hymes, for appellant. A. L. Jacobs, partment. February 8, 1907.) Action by Wilfor respondent. No opinion. Order affirmed, liam W. Smith against Amzi L. Barber. W. W with $10 costs and disbursements. Order filed. Niles, for appellant. A. G. Fox, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. SCHLESINGER V. BURNS. (Supreme Court, Appellate Division, First Department. February 15, 1907.) Action by Leo Schlesinger against Charles O. Burns. No opinion. Motion SMITH, Respondent, v. SEAMAN, Appellant. (Supreme Court, Appellate Division, Third De |