and 136 New York State Reporter

SOUTH SHORE TRACTION CO., Respondent, v. TOWN OF BROOKHAVEN et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 31, 1907.) Action by the South Shore Traction Company against the town of Brookhaven and others. No opinion. Motion for leave to appeal to the Court of Appeals denied.

SOUTH SHORE TRACTION CO., Respondent. v. VILLAGE OF PATCHOGUE et al., Appellants. (Supreme Court. Appellate Division, Second Department. January 31, 1907.) Action by the South Shore Traction Company against the village of Patchogue and others. No opinion. Motion for leave to appeal to the Court of Appeals denied.

SULLIVAN, Appellant, v. BISHOP, Respondent. (Supreme Court, Appellate Division. Third Department. January 9, 1907.) tion by Mary Sullivan against Mary C. Bishop. PER CURIAM. Judgment unanimously affirmed, with costs.

PARKER, P. J., not sitting.

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 Divition by Thomas A. Starr against Archer B. sion, First Department. Wallace and others. February 8, 1907.) No opinion. Motion to Action by Silas Swartz against John C. Brown dismiss appeal granted, with costs. and others. H. A. Friedman, for appellant.

E. T. Rice, for respondents. No opinion. Order | fendant Ficke, and otherwise reversed. Paskus affirmed, 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, O. 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 jury an issue of negligence, meager as were the details of the occurrence. The judgment should be affirmed, with costs as to the respondent Ficke, and reversed as to the defendant McGinn Bros., and a new trial ordered, with costs to the appellant to abide the event. Judgment affirmed as to the respondent Ficke, with costs, and reversed as to the defendant McGinn Bros., with costs to the appellant to abide the event. All concur.

TAYLOR, Respondent, v. BARNETT et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. January 16, 1907.) Action by Kendrick Taylor against John W. Barnett, as executor, and another.

PER CURIAM. Judgment affirmed, with

costs.

WILLIAMS, J., dissents.

TINSLEY, Respondent, v. SMITH et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 15, 1907.) Action by Ada V. Tinsley against James A. Smith and others. No opinion. Motion for resettlement of order denied.

TOWNSEND et al., Respondents, v. TRUSTEES OF TOWN OF BROOKHAVEN et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 31, 1907.) Action by Edward M. Townsend and others against the trustees, etc., of the town of Brookhaven and Lucy McKipprick. No opinion. Judgment affirmed, with costs.

VIEMEISTER, Respondent, V. UNDERWOOD TYPEWRITER CO., Appellant. (Supreme Court. Appellate Division, Second Department. January 31, 1907.) Action by Louis H. Viemeister against the Underwood Typewriter Company. No opinion. Judgment of the Municipal Court reversed, and new trial ordered, costs to abide the event, on the ground that the alleged contract of employment for two years was not proved: the letter used for that purpose being insufficient.

VON EMDEN, Respondent, v. CENTRAL CONSUMERS' WINE, ETC., CO. Appellant. (Supreme Court, Appellate Division, First Department. February 8, 1907.) Action by Eva Von Emden against the Central Consumers' Wine etc., Company. M. Paskus, for appellant. J. S. Epstein, for respondent. No opinion. Judgment and order affirmed, with costs. "Order filed.

In re VOUGHT. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) In the matter of the application of Preston A. Vought for admission to the bar. No opinion. Application granted.

W. A. CASE & SON MFG. CO., Respondent, v. JEWETT & CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 30, 1907.) Action by the W. A. Case & Son Manufacturing Company against Jewett & 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.

VIOLETT et al., Respondents, v. HORBACH, WALKER, Appellant, v. THOMSEN et al., Appellant. (Supreme Court, Appellate Division, Respondents. (Supreme Court, Appellate Term. 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. Ptrict. Action by Thomas S. Walker and others Maloney, for respondent. No opinion. Judgment and order modified by reducing the extra allowance to 5 per cent. of the recovery, and, as so modified, affirmed, with costs to the respondent. Settle order on notice.

V. LOEWER'S GAMBRINUS BREWERY CO., Appellant, v. JAMES MCGINN BROS. et al.. Respondents. (Supreme Court, Appellate Term. February 11, 1907.) Appeal from Municipal Court, Borough of Manhattan, Tenth District. Action by the V. Loewer's Gambrinus Brewery Company against James McGinn Bros. and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed as to de

against Carl Thomsen and another. From a judgment for defendants, plaintiff appeals. Affirmed. W. E. Dressler, for appellant. Strasbourger, Weil, Eschwege & Schallek, for respondent.

PER CURIAM. Judgment affirmed, with costs.

MacLEAN, J. (dissenting.) It seems to be undisputed that the defendants, as sellers, signed and retained one of two contracts, signed by purchasers, for the purchase of certain real estate, received a check for $500, and signed and delivered the other (a duplicate) to the plaintiff. The minds of the parties thus met.

and 136 New York State Reporter

8, 1907.) Action by Hans Weniger against the Fourteenth Street Store. B. G. Paskus, for appellant. O. C. Sommerich, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed.

That the defendants, a few minutes later, ask-, pellate Division, First Department. February ed for the copy delivered to the plaintiff, in order to compare with their own, and then deliberately destroyed it, and the next day returned the check, because they discovered that a second mortgage was at 5 instead of 6 per centum, would not justify a finding that minds had not met, nor a judgment for the defendants as acting within their rights, When offer and acceptance were complete, as they were herein, recall might not under the circumstances be exercised at the end of 10 minutes any more than at the end of 10 days. From the evidence the plaintiff was entitled to his commissions. The judgment should therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.

WALL, Respondent, v. SKANEATELES PAPER CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. January 23, 1907.) Action by Matthew Wall against the Skaneateles Paper Company. No opinion. Judgment and order affirmed, with costs.

WALLACE, Appellant, v. DEAN et al., Respondents. (Supreme Court, Appellate Division, Second Department. January 31, 1907.) Action by George Wallace against James Dean and others. No opinion. Judgment affirmed, with costs.

WALLACE, Appellant, v. WALLACE, Respondent. (Supreme Court Appellate Division, Third Department. January 18, 1907.) Action by Mary Wallace against Patrick H. Wallace, No opinion. Order affirmed, without costs.

WALLACE WALL PAPER CO., Respondent, v. PAULEN, Appellant. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) Action by the Wallace Wall Paner Company against Jacob Paulen. opinion. Judgment affirmed, with costs.

Νο

WANSER, Respondent, v. DeNYSE et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 31, 1907.) Action by Richard S. Wanser against John DeNyse and others. No oninion. Motion for reargument denied. For former opinion, see 102 N. Y. Supp. 36.

In re WATERS. (Supreme Court, Appellate Division, First Department. January 18, 1907.) In the matter of Sarah Ann Waters. No opinion. Motion denied upon payment of $10 costs, and upon condition that appellant have his appeal ready for argument at the March term. Order filed.

WENDELL v. LEO. (Supreme Court, Appellate Division, Fourth Department. January 23, 1907.) Action by Margaret Wendell against Michael J. Leo. No opinion. Motion for reargument denied, with $10 costs and disbursements. For former opinion, see 101 N. Y. Supp. 51.

WENIGER, Respondent, v. FOURTEENTH ST. STORE, Appellant. (Supreme Court, Ap

WESTINGHOUSE, CHURCH, KERR & CO. v. REMINGTON SALT CÓ. (Supreme Court, Appellate Division, Third Department. January 18, 1907.) Action by Westinghouse, Church, Kerr & Co. against the Remington Salt Company. No opinion. Motion for leave to go to Court of Appeals granted, and question certified as follows: Did the trial court err in holding as a matter of law that defendant failed to prove facts sufficient to entitle it to the reformation of the contract, under the evidence presented to the court and contained in the appeal book herein?

WHEELER, Respondent, v. GEORGER, Appellant. (Supreme Court, Appellate Division, Fourth Department. January 30, 1907.) AcEugene A. Georger. No opinion. Order affirmtion by Albert J. Wheeler, as, etc., against ed, with $10 costs and disbursements, and motion to dismiss appeal denied, without costs.

WHITEHEAD v. TRUSSED CONCRETE STEEL CO. (Supreme Court, Appellate DiviAction by William W. Whitehead, Jr., against sion, First Department. January 29, 1907.) the Trussed Concrete Steel Company. No opinion. Application denied, with $10 costs. Order signed.

WICKORY v. INTERBOROUGH RAPID TRANSIT CO. DUFFY v. INTERURBAN ST. R. CO. BERNS v. NEW YORK CITY R. CO. EMPIRE ELECTRIC SIGN CO. v. STRACK. MASHKOWITZ v. O'CONNELL. ROSSOW v. BURKE et al. ROSENBERG v. RANDOLPH CLOWES CO. WOLFSOHN v. sion, First Department. Feb. 15, 1907.) AcSOLOMON. (Supreme Court, Appellate Diviborough Rapid Transit Company, Annie Duffy tions by John B. Wickory against the Interagainst the Interurban Street Railroad ComPany, Herman Berns against the New York City Railroad Company, the Empire Electric Sign Company against Otto Strack. Samuel J. man Rossow against Edward Burke and anMashkowitz against Maurice O'Connell, Herother, Ignatz I. Rosenberg against the Randolph Clowes Company, and Clara Wolfsohn against Morris Solomon. No opinions. Applications denied, with $10 costs. Order signed.

In re WIGHT. (Supreme Court, Appellate Division, Second Department. January 25, 1907.) In the matter of the application of William A. Wight for admission to the bar. No opinion. Application granted.

WILLIAMS et al., Respondents, v. HATCH, Appellant. (Supreme Court, Appellate Division. Fourth Department. January 30, 1907.) Action by Elizabeth Bird Williams and others against Albert C. Hatch. No opinion. Judgment 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. Willson. H. K. Davis, for appellant. M. Meyer, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

WINTER v. WINTER. (Supreme Court, Appellate Division, First Department. January 29, 1907.) Action by Louise Winter against Charles Winter. No opinion. Motion granted, on condition that the respondent gives the stipulation mentioned in memo. Settle order on notice.

WOLKOWITZ, Respondent, v. BLECHER et al., Appellants. (Supreme Court, Appellate Division, Second Department. January 25, 1907.) Action by Max Wolkowitz against Max Blecher and another. No opinion. Motion to dismiss appeal granted, unless the appeal is perfected, return filed, and the case placed on the next calendar of this court for argument. On compliance with these terms, motion denied.

WOOD, Respondent, v. SHERLOCK, Appellant. (Supreme Court, Appellate Division, Second Department. January 31, 1907.) Action by William P. Wood against Adelaide A. Sherlock. No opinion. Judgment of the Municipal Court affirmed, with costs.

WOOD, Appellant, v. WOOD, Respondent. (Supreme Court, Appellate Division, Fourth Department. January 16, 1907.) Action by Henry P. Wood against John A. Wood. No

WOODS, Respondent, v. LEBER, Appellant. (Supreme Court, Appellate Division, Second Department. January 15, 1907.) Action by George W. Woods against Edward Leber. opinion. Motion to dismiss appeal granted, with costs.

No

WORDEN, Respondent, v. BENTLEY, Appellant. (Supreme Court, Appellate Division, Fourth Department. January 23, 1907.) Action by Arthur Worden against Clarence D. Bentley. No opinion. Judgment and order affirmed, with costs.

WYNN, Respondent, v. PROVIDENT LIFE & TRUST CO. OF PHILADELPHIA, PA., Appellant. (Supreme Court, Appellate Division, Third Department. January 9, 1907.) Action by Ellen J. Wynn against the Provident Life & Trust Company of Philadelphia, Pa.

PER CURIAM. Judgment and order reversed as against the weight of evidence, and new trial granted, with cost to appellant to abide event.

PARKER, P. J., not voting, not being a member of this court at the time this decision is handed down.

In re ZETERBERG. (Supreme Court, Appellate Division, Second Department. January 11, 1907.) In the matter of the application of Herman Zeterberg to fix and determine an alleged attorney's lien filed by Clarence C. Ferris, etc. No opinion. Order affirmed, with $10 costs and disbursements.

END OF CASES IN VOL. 102.