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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.

No opinion. Motion for leave to appeal to the Court of Appeals denied.

MIDDLEWORTH, Respondent, v. ORDWAY

et al., Appellants. (Supreme Court, Appellate MATTERN, Respondent, v. UNITED TRAC- Division, Third Department. January 9, 1907.) TION CO., Appellant. (Supreme Court, Ap- | Action by Sarah Middleworth against Mary M. pellate Division, Third Department. January | Ordway, individually and as administratrix, etc., 9, 1907.) Action by Marcus Mattern against and others. the United Traction Company.

PER CURIAM. Judgment_unanimously afPER CURIAM. Judgment and order unan- firmed, with costs. See 98 N. Y. Supp. 10. imously affirmed, with costs.

PARKER, P. J., not sitting. PARKER, P. J., not sitting.

MILLER et al., Respondents, v. LEO et al., MEANEY, Respondent, v. HURWITZ, Ap- Appellants. (Supreme Court, Appellate Divipellant. (Supreme Court, Appellate Division, sion, Third Department, January 9, 1907.) Second Department. January 15, 1907.) Ac- Action by Henry W. Miller, individually and as tion by John Meaney against Wulf Hurwitz. Director, and others against John P. Leo and No opinion. Motion denied.

another.

PER CURIAM. Order affirmed, with $10
MEMPHIS TROTTING ASS’N, Respond costs and disbursements.
ent, F. SMATIIERS, Appellant. (Supreme

PARKER, P. J., not sitting.
Court, Appellate Division, First Department.
January 25, 1907.) Action by the Memphis

MILLS et al., Appellants, V. STROPPEL,
Trotting Association against Elmer E. Smath- Respondent. (Supreme Court, Appellate Divi-

J. F. Cloonan, for appellant. J. J. Ad- sion, Second Department. January 25, 1907.) ams, for respondent. No opinion. Order af- Action by James W. Mills and another against firmed, with $10 costs and disbursements. Or- Karl Stroppel. No opinion. Judgment and der filed.

order affirmed, with costs. MENGIS, Respondent, V. FITZGERALD,

MINOR v. GARDEN. (Supreme Court, ApAppellant. (Supreme Court, Appellate Division, Second Department. January 15, 1907.5 pellate Division, First Department. January Action by Morris C. Jengis against Louis Fitz’ 18, 1907.) Action by Gilbert W. Minor against gerald. No opinion. Motion for stay pending ed, with $10 costs. Order filed.

W. Morton Garden. No opinion. Motion grantthe appeal granted, without costs, on condition the appellant argue the appeal when reached on the calendar.

In re MORRIS ST. IN CITY OF YONKERS. (Supreme Court, Appellate Division, Second De

partment. January 31, 1907.) In the matter of MENGIS, Respondent, V. FITZGERALD, laying out and opening Morris street, city of Appellant. (Supreme Court, Appellate Divi: Yonkers. No opinion. Appeal dismissed, with sion, Second Department. January 31, 1907.) costs. Action by Morris C. Mengis against Louis Fitzgerald. PER CURIAM. Order affirmed, with $10

MOYER, Appellant, v. VILLAGE OF NELcosts and disbursements.

LISTON, Respondent. (Supreme Court, ApMILLER, J., dissents.

pellate Division, Third Department. January

9. 1907.) Action by Irving Moyer against the In MERILLON'S WILL. re

(Supreme

village of Nelliston. Court, Appellate Division, Second Department.

PER CURIAM. Order modified by inserting January 11, 1907.) In the matter of proving as a condition for the granting of a new trial the last will and testament of Cornelia Stew- the payment by defendant of the trial fee and art Merillon, deceased, as a will of real and disbursements, and, as so modified, affirmed, personal property. Vo opinion. Decree of the without costs to either party. Surrogate's Court of Nassau County aflirmed, PARKER, P. J., not sitting. with costs.

MULLEN, Respondent, v. J. J. QUINLAN & MEYERHOFFER v. BAKER. (Supreme

CO., Appellant. (Supreme Court Appellate Court, Appellate Division, First Department. Division, Third Department. January 9, 1907.) January 18, 1907.) Action by Sarah Meyer Action by Edward P. Mullen against J. J. Quinhoffer against Hyman D. Baker. No opinion.

lan & Co. Application granted. Order signed.

PER CURIAM. Order affirmed, with $10

costs and disbursements. MIDDLETON, Respondent, v. BOARD OF

PARKER, P. J., not sitting. EDUCATION OF CITY OF NEW YORK, Appellant. (Supreme Court, Appellate Division, MYERS et al., Appellants, v. PECKINS et Second Department. January 11, 1907.) Artion al., Respor,dents. (Supreme Court, Appellate by Virginia F. Middleton against the board of Division, Fourth DepartmentJanuary 16,

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and 136 New York State Reporter 1907.) Action by Antoinette Myers and others not of such a character that an ordinarily pruagainst Myron Peckins, as, etc., and others. dent person would have anticipated it as liable

PER CURIAM. Judgment affirmed, with to happen, and that there was no negligence at costs.

tributable to defendant in failing to guard WILLIAMS, J., dissents, on the ground that against the possibility of its occurrence. the question of testator's competency should KRUSE, J., dissents. Order denying motion have been submitted to the jury.

for new trial on the ground of newly discovered

evidence affirmed, with costs. NEW YORK LIFE INS. & TRUST CO. V. POLSTEIN et al. (Supreme Court, Appellate

O'CONNOR v. CITY OF NEW YORK (two Division, First Department. February 8, 1907.) cases). (Supreme Court, Appellate Division, Action by the New York Life Insurance & Trust First Department. January 18, 1907.) Action Company against Isaac Polstein and others. by Margaret O'Connor against the city of New H. Brill, for appellant. J. Fettretch, for re- York and John E. O'Connor against the city of spondents. No opinion. Order affirmed, with New York. No opinions. Application granted costs. Order filed.

on plaintiffs stipulating that upon affirmance

judgment absolute shall be rendered against In re NIAGARA SANITARIUM CO. (Su- them. Order signed. preme Court, Appellate Division, Fourth Department. January 9, 1907.) In the matter of 0. J. GUDE CO., Appellant, v. RIESER, Rethe re-election of directors of the Niagara San- spondent. (Supreme Court, Appellate Division, itarium Company. No.opinion. Order affirmed, First Department. January 25, 1907.) Action with $10 costs and disbursements.

by the 0. J. Gude Company against Ely J.

Rieser. A. S. Gilbert, for appellant. P. ArmitNOACK V. CITY OF TROY. (Supreme age, for respondent. No opinion. Judgment Court, Appellate Division, Third Department. affirmed, with costs. Order filed. January 18, 1907.) Action by Bernard J. Noack against the city of Troy. No opinion. Motion In re OLDMIXON. (Supreme Court, Appeldenied.

late Division, Second Department. January 15,

1907.) In the matter of the application of John NUNNALLY V. NEW YORK ZEITUNG C. Oldmixon for a writ of mandamus directing CO. (Supreme Court, Appellate Division, First Mr. Justice Kelly to sign a warrant of commitDepartment. January 29, 1907.) Action by ment. No opinion. Application for writ of Florence Nunnally against the New York Zei- mandamus denied. tung Company. No opinion. Motion denied, with $10 costs. Order filed.

OLDMIXON V. SEVERANCE et al. (Su

preme Court, Appellate Division, First DepartO'BOYLE, Respondent, v. ERIE R. CO., Ap- ment. February 15, 1907.) Action by John G. pellant. (Supreme Court, Appellate Division, Oldmixon against Stephen N. Severance and anSecond Department. January 11, 1907.) Ac other. No opinion. Motion denied. Order filed. tion by James J. O'Boyle against the Erie Railroad Company. No opinion. Judgment and OLSON V. ROYAL CO. et al. (Supreme order modified by striking out the provision for Court, Appellate Division, First Department. extra allowance on the ground of want of power February 15, 1907.) Action by Anna Olson, in the court below to grant the same, and, as so as administratrix, against the Royal Company modified, unanimously affirmed, without costs of and others. No opinion. Motion denied on conthis appeal.

dition that appellant be ready by April term.

Order filed. O'CONNELL, Respondent, V. SYRACUSE RAPID TRANSIT RY. CO., Appellant. (Su- OREMUS V. FELLOWS. (Supreme Court, preme Court, Appellate Division, Fourth De- Appellate Division, Fourth Department. Janpartment. January 16, 1907.) Action by uary 16, 1907.) Action by Fred E. Oremus Michael W. U'Connell against the Syracuse against John K. Fellows, as, etc. Rapid Transit Railway Company. No opinion. Interlocutory judgment affirmed, with costs, with tained, and motion for new trial granted, with

PER CURIAM. Defendant's exceptions sus. leave to the defendant to plead over upon pay costs to the defendant to abide the event. Held, ment of the costs of the demurrer and of this that the answer raised issues of fact, and that appeal.

the direction of the verdict was improper. O'CONNOR v. BURGARD. (Supreme Court,

SPRING, J., not voting. Appellate Division, Fourth Department. January 16, 1907.)_Action by Patrick J. O'Connor In re O'SULLIVAN. (Supreme Court, Apagainst Henry P. Burgard.

pellate Division, First Department. January 18, PER CURIAM. Defendant's exceptions sus- 1907.). In the matter of Michael O'Sullivan. tained, and motion for new trial granted, with No opinion. Reference ordered. Order filed. costs to the defendant to abide event. Held, that the evidence failed to establish actionable ORTOLANO V. DEGNON CONTRACTING negligence on the part of the defendant, in that co. (Supreme Court, Appellate Division, First the accident which caused plaintiff's injury was Department. January 29, 1907.) Action by

Joseph Ortolano against the Degnon Contracting | Fourth Department. January 30, 1907.) ProCompany. No opinion. Application granted. ceedings by the people of the state of New York Order signed.

against John Ritenburg. No opinion. Judg

ment and order affirmed, with costs.
OTERO V. CLYDD S. S. CO. (Supreme
Court, Appellate Division, First Department.
January 29, 1907.) Action by Joseph Otero lant.

PEOPLE, Respondent, v. SCHANG, Appel

(Supreme Court, Appellate Division, against the Clyde Steamship Company, No Second Department. January 18, 1907.) Proopinion. Motion denied, without costs. Order ceedings by the people of the state of New filed.

York against Charles Schang: No opinion.

Judgment of conviction affirmed.
In re PENDER. (Supreme Court, Appellate
Division, First Department. February 15,
1907.) In the matter of Patrick Pender, de-

PEOPLE v. SCHWALD. (Supreme Court, ceased. No opinion. Motion denied on payment Appellate Division, First Department. Janof $10 costs, and on condition that appellant be uary 18, 1907.) Proceedings by the people of ready by April term. Order filed.

the state of New York against Sam Schwald.

No opinion. Motion granted. Order filed. PEOPLE V. BECKERT. (Supreme Court, Appellate Division, First Department. January

PEOPLE ex rel. ADAMS, Appellant, v. 18, 1907.) Proceedings by the people of the STOLL et al., Assessors, Respondents. "(Sustate of New York against Peter J. Beckert. preme Court, Appellate Division, Third DeNo opinion. Motion granted. Order filed.

partment. January 9, 1907.) Proceedings by the people of the state of New York, on the

relation of George R. Adams, against Jacob PEOPLE v. COLMEY. (Supreme Court, Ap- F. Stoll and others, assessors of the town of pellate Division, First Department. January Rosendale, Ulster county. 18, 1907.) Proceedings by the people of the PER CURIAM. Orders appealed from unanstate of New York against Charles M. Colmey. imously affirmed, with costs. No opinion. Motion granted. Order filed.

PARKER, P. J., not sitting.

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, PEOPLE ex rel. LEHUKUHL et al., ReAppellate Division, First Department. January spondents, v. GROUT, Comptroller, Appellant. 29, 1907.). Proceedings by the people of the l (Supreme Court, Appellate Division, First Destate of New York against Emil Henschel. No partment. February 8, 1907.) Proceedings by opinion. Motion granted. Order filed.

the people of the state of New York, on the

relation of Dora 'A. Lelimkuhl and others, PEOPLE, Respondent, v. IIUSON, Appellant. against Edward M. Grout, as Comptroller. (Supreme Court, Appellate Division, Fourth De-G. S. Coleman, for appellaut. J. A. Straley, partment. January 30, 1907.) Proceedings by for respondents. No opinion. Orders aflirmed, the people of the state of New York against Wii- with costs and disbursements. Order filed. liam Huson. No opinion. Motion for reargument denied. For former opinion, see 99 N. Y. PEOPLE ex rel. LODES, Appellant, v. DESupp. 1081,

PARTMENT OF HEALTH OF CITY OF

NEW YORK, Respondent. (Supreme Court, PEOPLE v. MINGEY. SAME V. CURTIS. Appellate Division, Second Department. JanSAME v. FABER. SAME v. LEVIN. SAME uary 11, 1907.), Proceedings by the people of v. SPIER. SAME v. DODDATO. SAME v. the state of New York, on the relation of FRIBBINS. (Supreme Court, Appellate Divi- George Lodes, . against the department of sion, First Department. January 18, 1907.) Health of the city of New York, Proceedings by the people of the state of New PER CURIAM. Order affirmed, with $10 York against Lawrence P. Mingey, same against costs and disbursements, on the opinion of George W. Curtis, same against Julia Faber, Mr. Justice BURR at Special Term. 100 N. same against Louis Levin, same against Oscar Y. Supp. 788. A. Spier, same against Angelo Doddato, and same GAYNOR, J., concurs in result,

on the against Franķ Fribbins. No opinions. Motions ground that the board had no power to revoke denied on condition that appellants have their the license. appeals ready for argument at the March term, Orders filed.

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, 1 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 PRINCE V. SCHLESINGER. (Supreme town of Waterloo.

Court, Appellate Division, First Department.

January 29, 1907.) Action by Adolf Prince PEOPLE ex rel. TERRY, Respondent, v. against Leo Schlesinger. No opinion. Motion KETCHAM, County Clerk, Appellant. (Su- granted. Order filed. preme Court, Appellate Division, Second De partment. January 25, 1907.) Proceedings by the people of the state of New York on the re- TRANSIT RY. CO., Appellant. (Supreme Court

PTAK, Respondent, v. SYRACUSE RAPID lation of Isaac G. Terry, against Solomon Ketcham, as county Clerk of Suffolk county. uary 30, 1907.)

Appellate Division, Fourth Department. Jan

Action by Braunislaus Ptak, No opinion. Appeal dismissed on argument, without costs, on the ground that the question Transit Railway Company. No opinion. Judg

an infant, etc., against the Syracuse Rapid presented is purely academic.

ment and order affirmed, with costs. PEOPLE ex rel. WERNER V, WEST SIDE BROTHERLY LOVE CONGREGATION & In re QUAIL. (Supreme Court Appellate BENEFIT SOCIETY. (Supreme Court, Ap- Division, Second Department. January 11, pellate Division, First Department. January 1907.) In the Matter of Archibald J. Quail, 25, 1907.) Proceedings by the people of the as receiver in sequestration proceedings of the state of New York, on the relation of Alexan- Conrad Eurichs's Brewery, and others. No der Werner, against the West Side Brotherly opinion. Order aflirmed, with $10 costs and Love Congregation & Benefit Society. J. Klein, disbursements. for relator. M. D. Steuer, for respondent. No opinion. Judgment affirmed, with costs, In re RAPID TRANSIT BOARD. (Supreme with leave to the relator to withdraw demurrer Court, Appellate Division, First Department. on payment of costs in this court and in the February 15, 1907.) In the matter of the Rapid court below. Order filed.

Transit Board, Park avenue section. Order

settled. In re PERRY AVE. (Supreme Court, Appellate Division, First Department. January RAYMOND V. TIFFANY et al. (Supreme 11, 1907.) In the matter of Perry avenue. No Court, Appellate Division, First Department. opinion. Reargument ordered.

January 25, 1907.) Action by Irving E. RayPERSONENI, Appellant, v. GOODALE, Re- fany and others. A. F. Gotthold, for appellants.

mond, as president, etc., against Louis C. Tifspondent. (Supreme Court, Appellate Division, S. Bacon, for respondent. No opinion. Order First Department. January 23, 1907.) Ac affirmed. with $10 costs and disbursements. tion by Joseph Personeni pgainst John McG. Order filed. Goodale, individually, etc. 'H. A. Forster, for appellant. H. B. Johnson, for respondent. No opinion. Order affirmed, with $10 costs YORK CENT. & 'H. R. R. CO., Appellant.

REIBENNACHT, Respondent, NEW and disbursements. Order filed.

(Supreme Court, Appellate Division, Third De. PETERSON, Respondent, v. HUFF, Appel-partment. January 9, 1907.) Action by John lant. (Supreme Court, Appellate Term.) Feb- Reibennacht, an infant, by Frank Reibennacht, ruary 11, 1907.) Appeal from Municipal Court, his guardian ad litem, against the New York Borough of Manhattan, Tenth District. Ac Central & Hudson River Railroad Company. tion by Marion F. Peterson against Earle P. PER CURIAM. Judgment unanimously afHuff. From a judgment for plaintiff, defend-firmed, with costs. ant appeals. Affirmed. Charles LaRue, for

PARKER, P. J., not sitting. appellant.

MacLEAN, J. Upon this appeal counsel for the defendant contends that evidence was im

REICHE v. NEW YORK CENT. & H. R. properly received, in contradiction of an ex

R. CO. (Supreme Court, Appellate Division, press covenant to defend title in a bill of sale Third Department. January 18, 1907.) Acof chattels, referred to as plaintiff's Exhibit tion by Lena H. Reiche, administratrix, etc., X, but not attached to the return, and made of Alfred F. Reiche, deceased, against the New the basis of a counterclaim, to which the plain York Central & Hudson River Railroad Comtiff was not required to make formal reply. pany. No opinion. Motion denied. Municipal Court Act, Laws 1902, p. 1541, c. 580, $ 161. In view of the warranty of title In re RICHARDSON. (Supreme Court, Apordinarily obtaining upon the sale of goods, pellate Division, First Department. January 25, whether it was stated in so many words or 1907.) In the matter of Benjamin Richardson, not in the bill of sale is, however, of no very deceased. No opinion. Order affirmed, with material moment now, as there was sufficient ($10 costs and disbursements. Order filed.

V.

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In re RICHARDSON._(Supreme Court, Ap- 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. No opinion. Motion denied. Order filed.

SCHNEIDER, Respondent, V. HEILBRON RIPLEY, Respondent, v. SMITH et Ap- et al., Appellants. (Supreme Court, Appellate pellants. (Supreme Court, Appellate Division, Division, Fourth Department. January 9, Second Department. January 15, 1907.) AC- 1907.) Action by George W. Schneider against tion by David Ripley against James A. Smith, Mary Heilbron and others. No opinion. Moand others. No opinion. Motion for resettle- tion to modify decision and judgment granted. ment of order denied.

For former opinion, see 101 N. Y. Supp. 152. In re ROCHESTER, C., E. TRACTION CO. (Supreme Court, Appellate Division, Fourth De

SCHOMACKER V. MICHAELS. (Supreme partment. January 9, 1907.) In the matter of Court, Appellate Division, First Department. the application of, etc., the Rochester, Corning,

February 15, 1907.) Action by Dierck SchoElmira Traction Company for an order direct macker against Sophia Michaels. No opinion. ing the board of railroad commissioners to is- Motion for leave to appeal to Court of Appeals sue a certificate of public convenience and neces- granted. Order filed. sity, under sertion 59 of the railroad law. No opinion. Order to show cause, returnable Jan. SCHRAENKLER, Respondent, v. NATIONuary 28, 1907, granted.

AL CAR WHEEL CO., Appellant. (Supreme

Court, Appellate Division, Fourth Department. ROSENSTEIN, Respondent, V. NELSON, January 30, 1907.) Action by John Peter Appellant. (Supreme Court, Appellate Division, Schraenkler against the National Car Wheel Second Department. January 18, 1907.) AC Company. tion by Israel J. Rosenstein against John F. Nelson, No opinion. Judgment of the Mu-ed, with costs.

PER CURIAM. Judgment and order aflirmnicipal Court affirmed, with costs.

ROBSON, J., not sitting. ROSENTHAL v. KOUBA et al. (Supreme Court, Appellate Division, First Department. SCHREIBER, Respondent, v. ELKIN, ApJanuary 29, 1907.) Action by Sigmund Rosen- pellant. (Supreme Court, Appellate Division, thal against Emil Kouba and another. No First Department. January 25, 1907.) Action opinion. Application denied, with $10 costs. by Isaac Schreiber against Julia Elkin. S. F. Order signed.

Kneeland, for appellant. J. R. Schiff, for re

spondent. No opinion. Order affirmed, with ROSSENBACH V. SUPREME COURT, I. $10 costs and disbursements. Order filed. O. F. (Supreme Court, Appellate Division, Fourth Department. January 23, 1907.) AC

SHAUGHNESS, Respondent, v. LIEBLER tion by Theresa Rossenbach against the Supreme et. al., Appellants. (Supreme Court, Appellate Court of Independent Order of Foresters. No Division, Second Department. January 25, opinion. Motion for reargument denied, with 1907.) Action by Charles Shaughness against $10 costs. Motion to amend decision and order Theodore A. Liebler and another. No opinion. denied. For former opinion, see 101 N. Y. Judgment and order unanimously affirmed, with

costs. Supp. 890. RULEFF, Appellant, v. NEW YORK CENT.

SHAUGHNESS, Respondent, v. LIEBLER & H. R. R. CO., Respondent. (Supreme Court, et al. Appellants. (Supreme Court, Appellate Appellate Division, Fourth Department. Jan? Division, Second Department. January 31, uary 23, 1907.) Action by Cora E. Ruleff, as, Theodore A. Liebler and another. No opinion.

Action by Charles Shaughness against etc., against the New York Central & Hudson Motion for leave to appeal to the Court of ApRiver Railroad Company. PER CURIAM. Judgment and order af

peals denied. firmed, with costs.

In re SLATER. (Supreme Court, Appellate SPRING, J., dissents. ROBSON, J., not Division, First Department. January 18, 1907.) sitting.

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 De Boulle. 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 respond

ent. No opinion. Judgment and order affirmed, SCHLESINGER v. BURNS. (Supreme with costs. Order filed. Court, Appellate Division, First Department. February 15, 1907.) Action by Leo Schlesinger SMITH, Respondent, v. SEAMAN, Appellant. against Charles O. Burns. No opinion, Motion | (Supreme Court, Appellate Division, Third De

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