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and 136 New York State Reporter partment, January 9, 1907.) Action by Wil- STARR, Appellant, v. WALLACE, Respondliam M. Smith against Luther W. Seaman. ent. (Supreme Court, Appellate Division, Ser

PER CURIAM. Judgment affirmed, with ond Department. January 31, 1907.) Action costs.

by Thomas A. Starr against Archer B. Wallace. PARKER, P. J., not sitting.

No opinion. Motion denied. SOLOMON et al., Respondents, v. MACHTA STERLING, Respondent, v. CHAPIN, Ap. et al., Appellants. (Supreme Court, Appellate pellant. (Supreme Court, Appellate Division, Division, Second Department. January 25, First Department. February 8. 1907.) 1907.) Action by Isidor Solomon and another tion by John W. Sterling, as executor, against against Barnet Machta and others. No opinion. Albert K. Chapin, individually, etc. L. L. KelJudgment of the Municipal Court reversed on logg, for appellant. J. A. Garver, for respondreargument, and new trial ordered, costs to ent. abide the event, on the ground that there is no

PER CURIAM. Judgment affirmed, with evidence in the return establishing the amount costs. Order filed. of the plaintiff's claim.

INGRAHAM, J., dissents. SOPER V. ASSOCIATED PRESS. (Supreme Court, Appellate Division, Fourth De- STROHMAN. Respondent. v. FREDERICK partment. January 9, 1907.) Action by Harry J. W. BURSCH CO. Appellant. (Supreme G. Soper against the Associated Press. No Court, Appellate Division, Second Department. opinion. Motion for leave to appeal to the January 25, 19907.) Action by George L. Stroh: Court of Appeals granted, and question for re

man against the Frederick J. W. Bursch Com view certified.

pany. No opinion. Motion for leave to ap

peal to the Court of Appeals denied. SOUTH SHORE TRACTION CO., Respondent. v. TOWN OF BROOKIAVEN et al., Ap

SULLIVAN, Appellant, v. BISHOP, Repellants. (Supreme Court, Appellate Division, spondent. (Supreme Court, Appellate Division. Second Department. January 31, 1907.) ACP | Third Department. January 9, 1907.) Action by the South Shore Traction Company tion by Mary Sullivan against Mary C. Bishop. against the town of Brookhaven and others. No PER CURIAM. Judgment unanimously afopinion. Motion for leave to appeal to the firmed, with costs. Court of Appeals denied.

PARKER, P. J., not sitting. SOUTH SHORE TRACTION CO., Respond

SULLIVAN et al. v. McCANN et al. (Suent. v. VILLAGE OF PATCHOGUE et al., preme Court, Appellate Division. First DepartAppellants. (Supreme Court. Appellate Divi

ment. January 25, 1907.) Action by William sion, Second Department. January 31. 1907.) H. Sullivan and others against John McCann Action by the South Shore Traction Company and others. No opinion. against the village of Patchogue and others. No out costs. Order filed.

Motion denied, withopinion. Motion for leave to appeal to the Court of Appeals denied.

SUMMERS, Appellant. V. KOWSKY, Re

spondent. (Supreme Court, Appellate Division, SPAETH, Respondent, v. MANIIATTAN Second Department. January 15, 1907.) ACRY. CO., Appellant. (Supreme Court. Appellate tion by Benjamin Summers against Samuel Division, Second Department, January 18, Kowsky. No opinion. Motion to dispense with 1907.) Action by Anna E. Spaeth against the the printing of the two exhibits in question Manhattan Railway Company. No opinion. granted. unless the defendant furnishes the Judgment and order unanimously affirmed, with plaintiff within 10 days, with copies of the same costs.

as taken from his books. If copies are so fur

nished, the motion is denied. SPEARBECK, Respondent. v. BELL.. Arpellant. (Supreme Court, Appellate Division, SUTLIFF. Respondent. v. MUTUAL FIRE Third Department. January 9, 1907.) Action INS. ASS'N OF MONTGOMERY, HERKI. by Arminda J. Spearbeck against Robert J. Bell. VER & FULTON COUNTIES, Appellant.

PER CURIAM. Judgment unanimously af- (Supreme Court. ippellate Division, Third Defirmed, with costs.

partment. January 9, 1907.) Action by Mary PARKER, P. J., not sitting.

F. Sutliff against the Mutual Fire Insurance

Association of Montgomery, Herkimer, and FulSTANLEY v. STANLEY. (Supreme Court, ton Counties. Appellate Division, Third Department. January PER CURIAM. Judgment and order revers. 18, 1907.) Action by Sarah Taylor Stanley ed as against the weight of evidence, and new against James William Stanley. No opinion. trial granted, with costs to appellant to abide Motion denied.

event.

PARKER, P. J., not sitting. STARR, Appellant, v. WALLACE et al., Respondents. (Supreme Court, Appellate Division, SWARTZ, Appellant, v. BROWN et al., ReSecond Department. January 25, 1907.) AC- spondents. (Supreme Court, Appellate Divi. tion by Thomas A. Starr against Archer B. sion, First Department. February 8, 1907.) Wallace and others. No opinion. Motion to Action by Silas Swartz against John C. Brown dismiss appeal granted, with costs.

and others. H. A. Friedman, for appellant. spondent. V. LOEWER'S GAMBRINUS BREWERY

E: T. Rice, for respondents. No opinion. Order , fendant Ficke, and otherwise reversed. Paskus afirmed, with $10 costs and disbursements. & Cohen, for appellant. Frank Verner Johnson, Order filed.

for respondents.

MacLEAN, J. The complaint herein was SWAYZE, Appellant, V. NEW YORK & properly dismissed as to the defendant Ficke, 0. COAL MINING CO., et al., Respondents. because there was no proof that he was the (Supreme Court, Appellate Division, First De owner of the wagon in collision on Thirty-Sevpartment. February 8, 1907.) Action by Wil-enth street, between the North River and Elevbur F. Swayze against the New York & Ohio enth avenue, with a wagon presumably belongCoal Mining Company and others. H. M. ing to and 'in the service of his codefendants Hitchings, for appellant. S. H. Wandell, for (Norris v. Kohler, 41 N. Y. 42, 45); but as to respondents. No opinion. Judgment affirmed, the latter there arose, under the doctrine of with costs. Order filed.

Loudoun v. Eighth Ave. R. R. Co., 162 N. Y.

380, 384, 56 N. E. 988, for submission to the TAYLOR, Respondent, v. BARNETT et al., jury an issue of negligence, meager as were the Appellants. (Supreme Court, Appellate Divi- details of the occurrence. The judgment should sion, Fourth Department. January 16, 1907.) be affirmed, with costs as to the respondent Action by Kendrick Taylor against John W. Ficke, and reversed as to the defendant McBarnett, as executor, and another.

Ginn Bros., and a new trial ordered, with costs PER CURIAM. Judgment affirmed, with to the pellant to abide the event. Judgment costs.

affirmed as to the respondent Ficke, with costs, WILLIAMS, J., dissents.

and reversed as to the defendant McGinn Bros.,

with costs to the appellant to abide the event. TINSLEY, Respondent, v. SMITH et al., Ap. All concur. pellants. (Supreme Court, Appellate Division, Second Department. January 15, 1907.) AC- VON EMDEN, Respondent, V. CENTRAL tion by Ada V. Tinsley against James A. Smith CONSUMERS WINE, ETC., CO. Appellant. and others. No opinion. Motion for reset- (Supreme Court, Appellate Division, First Detlement of order denied.

partment. February 8, 1907.) Action by Eva

Von Emden against the Central Consumers' TOWNSEND et al., Respondents, v. TRUS- Wine etc., Company. M. Paskus, for appellant. TEES OF TOWN OF BROOKHAVEN et al., J. S. Epstein, for respondent. No opinion. Appellants. (Supreme Court, Appellate Divi- Judgment and order affirmed, with costs. Order sion, Second Department. January 31, 1907.) filed. Action by Edward M. Townsend and others against the trustees, etc., of the town of Brook- In re VOUGHT. (Supreme Court, Appellate haven and Lucy McKipprick. No opinion. Division, Second Department. January 11, 1907.) Judgment affirmed, with costs.

In the matter of the application of Preston A.

Vought for admission to the bar. No opinion. VIEMEISTER, Respondent, V. UNDER- Application granted. WOOD TYPEWRITER CO., Appellant. (Supreme Court, Appellate Division, Second De

W. A. CASE & SON MFG. CO., Respondpartment. January 31, 1907.), Action by Louis ent, v. JEWETT & Co., Appellant. (Supreme H. Viemeister against the Underwood Type: Court, Appellate Division, Fourth Department. the Municipal Court reversed, and new trial & Son Manufacturing Company against Jewett ordered, costs to abide the event, on the ground & Company. No opinion. Interlocutory judgthat the alleged contract of employment for ment afirmed, with costs, with leave to the detwo years was not proved: the letter used for fendant to plead over upon payment of the that purpose being insufficient.

costs of the demurrer and of this appeal. VIOLETT et al., Respondents, v. HORBACH, Appellant. (Supreme Court, Appellate Division, Respondents. (Supreme Court, Appellate Term,

WALKER, Appellant, v. THOMSEN et al., First Department. January 25, 1907.), Action February 11, 1907.). Appeal from Municipal by Atwood Violett and others against Paul W. Court, Borough of Manhattan, Eleventh DisHorbach. A. S. Gilbert, for appellant. W. P. trict.Action by Thomas S. Walker and others Maloney, for respondent. No opinion. Judg- against Carl Thomsen and another. From a ment and order modified by reducing the extra judgment for defendants, plaintiff appeals. Afallowance to 5 per cent. of the recovery, and, firmed. W. E. Dressler, for appellant. Strasas so modified, affirmed, with costs to the re- | bourger, Weil, Eschwege & Schallek, for respondent. Settle order on notice.

PER CURIAM. Judgment affirmed, with CO., Appellant, V. JAMES MCGINN BROS. costs. et al., Respondents. (Supreme Court, Appel- MacLEAN, J. (dissenting.) It seems to be late Term. February 11, 1907.) Appeal from undisputed that the defendants, as sellers, signMunicipal Court, Borough of Manhattan, Tenth ed and retained one of two contracts, signed District. Action by the V. Loewer's Gambrinus by purchasers, for the purchase of certain real Brewery Company against James McGinn Bros. estate, received a check for $500, and signed and another. From a judgment in favor of de- and delivered the other (a duplicate) to the fendants, plaintiff appeals. Affirmed as to de- 1 plaintiff. The minds of the parties thus met. WILLIAMS et al., Respondents, v. HATCH, ments. For former opinion, see 101 N. Y. Appellant. (Supreme Court, Appellate Divi: Supp. 51.

and 136 New York State Reporter That the defendants, a few minutes later, ask-, pellate Division, First Department. February ed for the copy delivered to the plaintiff, in 8, 1907.) Action by Hans Weniger against the order to compare with their own, and then Fourteenth Street Štore. B. G. Paskus, for apdeliberately destroyed it, and the next day re- pellant. 0. C. Sommerich, for respondent. No turned the check, because they discovered that opinion. Judgment and order affirmed, with a second mortgage was at 5 instead of 6 per costs. Order filed. centum, would not justify a finding that minds had not met, nor a judgment for the defend- WESTINGHOUSE, CHURCH, KERR & ants as acting within their rights, When offer co. v. REMINGTON SALT CO. (Supreme and acceptance were complete, as they were Court, Appellate Division, Third Department. herein, recall might not under the circumstances January 18, 1907.) Action by Westinghouse, be exercised at the end of 10 minutes any more Church, Kerr & Co. against the Remington than at the end of 10 days. From the evidence Salt Company. No opinion. Motion for leave the plaintiff was entitled to his commissions. to go to Court of Appeals granted, and question The judgment should therefore be reversed, certified as follows: Did the trial court err in and a new trial ordered, with costs to appellant holding as a matter of law that defendant fail. to abide the event.

ed to prove facts sufficient to entitle it to the

reformation of the contract, under the evidence WALL, Respondent, v. SKANEATELES presented to the court and contained in the apPAPER CO., Appellant. (Supreme Court, Ap- peal book herein ? pellate Division, Fourth Department. January 23, 1907.) Action by Matthew Wall against WHEELER, Respondent, v. GEORGER, Apthe Skaneateles Paper Company. No opinion. pellant. (Supreme Court, Appellate Division, Judgment and order affirmed, with costs.

Fourth Department. January 30, 1907.) AcWALLACE, Appellant, v. DEAN et al., Re Eugene A. Georger. No opinion. Order affirm.

tion by Albert J. Wheeler, as, etc., against spondents. (Supreme Court, Appellate Divi- ed, with $10 costs and disbursements, and mosion, Second Department. January 31, 1907.) tion to dismiss appeal denied, without costs. Action by George Wallace against James Dean and others. No opinion. Judgment affirmed, WHITEHEAD v. TRUSSED CONCRETE with costs.

STEEL CO. (Supreme Court, Appellate DiviWALLACE, Appellant, v. WALLACE, Re- Action by William W. Whitehead, Jr., against

sion, First Department. January 29, 1907.) spondent. (Supreme Court Appellate Division, the Trussed Concrete Steel Company. No opinThird Department. January 18. 1907.) Action ion. Application denied, with sio costs. Order by Mary Wallace against Patrick H. Wallace, signed. No opinion. Order affirmed, without costs. WALLACE WALL PAPER CO., Respond

WICKORY V. INTERBOROUGH RAPID

TRANSIT CO. DUFFY V. INTERURBAN ent, v. PAULEN, Appellant. (Supreme Court, Appellate Division, Second Department. Janu: ST. R. CO. BERNS V. NEW YORK CITY ary 11, 1907.) Action by the Wallace Wall R, CO: EMPIRE ELECTRIC SIGN CO, . Paner Company against Jacob Paulen. No

STRACK. MASHKOWITZ v. O'CONNELL. opinion. Judgment affirmed, with costs.

ROSSOW v. BURKE et al. ROSENBERG v.

RANDOLPH CLOWES CO. WOLFSOHN v. WANSER, Respondent, v. DeNYSE et al., sion, First Department. Feb. 15, 1907.) Ac

SOLOMON. (Supreme Court, Appellate DiviAppellants. (Supreme Court, Appellate Divi- tions by John B. Wickory against the Intersion, Second Department. January 31, 1907.) borough Rapid Transit Company, Annie Duffy Action by Richard S. Wanser against John De against the Interurban Street Railroad Comargument denied. For former opinion, see 102 pany, Herman Berns against the New York

City Railroad Company, the Empire Electric N. Y. Supp. 36.

Sign Company against Otto Strack, Samuel J.

Mashkowitz against Maurice O'Connell, Her In re WATERS. (Supreme Court, Appellate man Rossow against Edward Burke and anDivision, First Department. January 18. 1907.) Other, Ignatz 1. Rosenberg against the RanIn the matter of Sarah Ann Waters. No opin. dolph Clowes Company, and Clara Wolfsohn ion. Motion denied upon payment of $10 costs, against Morris Solomon.' No opinions. Applicaand upon condition that appellant have his ap- tions denied, with $10 costs. Order signed. peal ready for argument at the March term. Order filed.

In re WIGHT. (Supreme Court, Appellate

Division, Second Department. January 25, WENDELL V. LEO. (Supreme Court, Ap. 1907.). In the matter of the application of Wilpellate Division, Fourth Department. January liam 'A. Wight for admission to the bar. No 23, 1907.) Action by Margaret Wendell against opinion. Application granted. Michael J. Leo. No opinion. Motion for reargument_denied, with $10 costs and disburse.

sion, Fourth Department. January 30, 1907.)

Action by Elizabeth Bird Williams and otbers WENIGER, Respondent, v. FOURTEENTH 'against Albert C. Hatch. Vo opinion. Judg. ST. STORE, Appellant. (Supreme Court, Ap- ment and order affirmed, with costs.

WILLSON, Appellant, V. WILLSON, Re- opinion. Judgment and order affirmed, with spondent. (Supreme Court, Appellate Divi- costs. sion, First Department. January 25, 1907.) Action by John W. Willson against Lillian E. WOODS, Respondent, v. LEBER, Appellant. Willson. H. K. Davis, for appellant. M. (Supreme Court, Appellate Division, Second Meyer, for respondent. No opinion. Order Department. January 15, 1907.) Action by affirmed, with $10 costs and disbursements. Or- George W. Woods against Edward Leber. No der filed.

opinion. Motion to dismiss appeal granted,

with costs. WINTER V. WINTER. (Supreme Court, Appellate Division, First Department. Janu- WORDEN, Respondent, V. BENTLEY, Apary 29, 1907.) Action by Louise Winter pellant. (Supreme Court, Appellate Division, against Charles Winter. No opinion. Motion Fourth Department. January 23, 1907. ) Acgranted, on condition that the respondent gives tion by Arthur Worden against Clarence D. the stipulation mentioned in memo. Settle or- Bentley. No opinion. Judgment and order afder on notice.

firmed, with costs. WOLKOWITZ, Respondent, V. BLECHER WYNN, Respondent, v. PROVIDENT LIFE et al., Appellants. (Supreme Court, Appellate & TRUST CO. OF PHILADELPHIA, PA., Division, Second Department. January 25, Appellant. (Supreme Court, Appellate Division, 1907.) Action by Max Wolkowitz against Max Third Department. January 9, 1907.) Action Blecher and another. No opinion. Motion to by Ellen J. Wynn against the Provident Life dismiss appeal granted, unless the appeal is & Trust Company of Philadelphia, Pa. perfected, return filed, and the case placed on PER CURIAM. Judgment and order rethe next calendar of this court for argument. versed as against the weight of evidence, and On compliance with these terms, motion denied. new trial granted, with cost to appellant to abide

event. WOOD, Respondent, v. SHERLOCK, Appel- PARKER, P. J., not voting, not being a memlant. (Supreme Court, Appellate Division, Sec- ber of this court at the time this decision is ond Department. January 31, 1907.) Action handed down. by William P. Wood against Adelaide A, Sherlock. No opinion. Judgment of the Municipal In re_ZETERBERG. (Supreme Court, ApCourt affirmed, with costs.

pellate Division, Second Department. January

11, 1907.) In the matter of the application of WOOD, Appellant, v. WOOD, Respondent. Herman Zeterberg to fix and determine an al(Supreme Court, Appellate Division, Fourth leged attorney's lien filed by Clarence C. Ferris, Department. January 16, 1907.) Action by etc. No opinion. Order afirmed, with $10 costs Henry P. Wood against John A. Wood. No and disbursements.

END OF CASES IN VOL. 102.

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