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and 118 New York State Reporter the assessor of the city of Poughkeepsie for! PER CURIAM. Substantially nothing but a the year 1902. No opinion. The court desires question of fact is involved in this case. The to see the counsel in this case.

claim of the defendant that he should have been

allowed to show a custom prevailing with POUGHKEEPSIE TRUST CO. V. LANE reference to the dealings had in the New York et al. (Supreme Court, Appellate Division, Sec- Furniture Exchange is not available. He makes ond Department. October 22, 1903.) Action no claim, either in his answer or in his testiby the Poughkeepsie Trust Company against mony, that he did not purchase the identical Charles E. Lane and others, constituting the goods shown him, and that those identic board of review of assessments, etc. No opin- were not to be delivered to him, but other goods ion. Appeal withdrawn by consent of the par- of which the articles shown were samples.

Judgment affirmed, with costs. PRESCOTT, Respondent, v. VILLAGE OF RANGER, Respondent, V. THALMANN et TICONDEROGA. Appellant. (Supreme Court. al., Appellants. (Supreme Court, Appellate DiAppellate Division. Third Department. Novem- vision, First Department. October 16, 1903.) ber 11, 1903.) Action by Edwin A. Prescott Action by Solomon Ranger against Ernst Thalagainst the village of Ticonderoga. No opinion. inann and others. No opinion. Motion granted. Judgment and order unanimously affirmed, with costs.

RANSWEILER, Respondent, v. WATSON

et al., Appellants._(Supreme Court, Appellate PRICE et al., Appellants, v. LOVELL, Re

Division, Second Department. November 13,

1903.) Áction by Henry Ransweiler, an infant, spondent. (Supreme Court, Appellate Divi

etc., against James H. Watson and James H. sion, Fourth Department. November 17, 1903.)

Pittinger.
Action by Milbert F. Price and another against
Joseph Lovell. No opinion. Judgment and or-

PER CURIAM. Judgment and order affirmder affirmed, with costs.

ed, with costs.

WOODWARD, J., dissents. In re PURBY. (Supreme Court, Appellate Division, Third Department. November 17, REED & CARNRICK, Respondents, F. 1903.) In the matter of the charges against WHITE et al., Appellants. (Supreme Court, Alonzo A. Purby, an attorney of the Supreme Appellate Division, Third Department. NoremCourt of the state of New York

ber 17, 1903.) Action by Reed & Carnrick PER CURIAM. Ordered that Henry P. against Fred White and others. No opinion. Pendrick, Esq., of Saratoga Springs, N. Y., Judgment modified, by inserting provision that be appointed referee to take testimony and re- plaintiffs first tender to defendants the sum of port to the court, with his opinion thereon, and $500 for a conveyance of said premises, and, that Horace E. McKnight, Esq., of Ballston in case said conveyance shall not be made, Spa, N. Y., be substituted as attorney in place plaintiffs shall have the relief provided by said of George R. Salisbury, Esq., to prosecute the judgment, and, as so modified, affirmed, withproceeding.

out costs to either party. If order is not agreed

upon, to be settled by HOUGHTON, J. QUAIL, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, Ap

REICH V. DYER et al. (Supreme Court, pellate Division, Second Department. Novem- Appellate Division, First Department. November 20, 1903.) Action by John H. Quail against

ber 20, 1903.) Action by Elizabeth Reich the Metropolitan Street Railway Company. No opinion. Appeal dismissed, with taxable costs, | ion. Motion granted. before argument.

REILLY V. FREEMAN et al. (Supreme QUINN. Respondent. v. CRUMLIN. Appel-Court, Appellate Division, First Department. lant. (Supreme Court, Appellate Division, October 23, 1903.). Action by John Reilly, as Fourth Department. October 27, 1903.) Ac-assignee, against Charles Q. Freeman and othtion by James Quinn against William Crumlin, ers. No opinion. Motion denied, with $10 as president, etc. No opinion. Judgment af- | costs. firmed, with costs.

RETTAGLIATTA, Appellant, V. HAYIn re RANDALL (Supreme Court, Appel- ) WARD et al., Respondents. (Supreme Court, late Division, First Department. October 16,

Appellate Division, First Department. October 1903.) In the matter of Frank E. Randall. 23. 1903.) Action by Anna P. Rettagliatta, as No opinion. Motion to dismiss appeal granted, administratrix, against Thomas J. Hayward with $10 costs.

and others. J. E. Judge, for appellant. Joseph

N. Tuttle, for respondents. No opinion. JudgRANDALL, Respondent, v. FINKENBERG, ment affirmed, with costs, upon the authority Appellant. (Supreme Court, Appellate Term. of Gmaehle v. Rosenberg, 83 App. Div. 339, June 22, 1903.) Action by Frank M. Randall 82 App. Div. 366. against Adolph Finkenberg. From a judgment for plaintiff, defendant appeals. Affirmed. | RIGAS, Respondent, v. LIVINGSTON et al., Mr. Blumenthal, for appellant. O. H. Fuller, Appellants. (Supreme Court, Appellate Division, for respondent.

| First Department. October 16, 1903.) Action

inst

r and others. No

by Peter Rigas against George Livingston, as ROGERSON FRUIT & COLD STORAGE commissioner, etc., and others. No opinion. Mo- CO., Respondent, v. NEW YORK CENT. & H. tion denied, with $10 costs.

R. R. CO., Appellant. (Supreme Court, Appel

late Division, Fourth Department. October 27, RIGAS, Respondent, v. LIVINGSTON et al., 1903.) Action by the Rogerson Fruit & Cold Appellants. (Supreme Court, Appellate Divi- Storage Company against the New York Cension, First Department. November 20, 1903.) tral & Hudson River Railroad Company. Action by Peter Rigas against George R. Liv PER CURIAM. Order reversed, with $10 ingston and others. No opinion. Motion grant- | costs and disbursements, and motion granted, ed for leave to go to Court of Appeals upon giv- i upon payment by the defendant of all costs, ing undertaking. Question to be settled upon except those upon this appeal, subsequent to settlement of order.

the service of the original answer, with leave to the plaintiff to discontinue the action without

costs. In case of such discontinuance, the RILEY, Respondent, v. TOWN OF CUBA, plaintiff to recover costs as stated. Held that, Appellant. (Supreme Court, Appellate Divi- the laches being sufficiently excused and it apsion, Fourth Department. October 27, 1903.) pearing that the plaintiff will not lose any right Action by Michael Riley against the town of existing at the time of the commencement of Cuba. No opinion. Judgment and order af- the action by the proposed amendment, it must firmed, with costs.

be regarded as in furtherance of justice to per

mit the defendant to set up the terms of the ROBBINS, Respondent, v. BRIDGMAN, Ap- contract under which the goods were shipped. pellant. (Supreme Court, Appellate Term. No

STOVER, J., not voting. vember 18, 1903.) Action by Marcus Robbins against Malcolm L. Bridgman. From a judy ROSENBLUM. Appellant, v. LONG ISment for plaintiff, defendant appeals. Affirmed. LAND R. CO., Respondent.' (Supreme Court, Charles H. Luscomb, for appellant. Maas & Appeilate Division, Second Department. NoGoldberg, for respondent.

vember 13, 1903.) Action by Jacob Rosenblum BLANCHARD, J. The only question which against the Long Island Railroad Company. No appears to have been seriously litigated in this opinion. Judgment and order unanimously afaction was whether or not the plaintiff's as-firmed, with costs. signor was able to secure a theatrical license, as contemplated by the agreement of August, ROSENSTOCK v. DESSAR et al. (Supreme 1902. This was a question of fact, which the Court, Appellate Division, First Department. trial justice resolved in favor of the plaintiff, October 23, 1903.) Action by Edgar H. Rosenand we think his determination is fully jus- stock, as ancillary executor, against Adolph tified by the evidence in the case. Judgment Dessar and others. No opinion. Motion denied. must be aflirmed, with costs. All concur.

ROTH, Appellant, V. ARNEMANN et al., ROBINSON v. METROPOLITAN ST. RY. Respondents. (Supreme Court, Appellate DiviCO. (Supreme Court, Appellate Division, First sion, First Department. October 23, 1903.) ACDepartment. November 13, 1903.) Action by

tion by Frederick Roth against Martin ArneWilliam Robinson against Metropolitan Street mann and others.. A. P. Wagener, for appelRailway Company. No opinion. Motion dis- lant. J. Steiner, for respondents. No opinion. missed.

Judgment affirmed, with costs.

ROTHSCHILD, Appellant, V. DREYFUS, ROCHE, Respondent, v. MATTHEWS et al., | Respondent. (Supreme Court, Appellate DiviAppellants. (Supreme Court, Appellate Divi- sion, First Department. November 6, 1903.) sion, Second Department. November 13, 1903.) | Artion by Victor H. Rothschild against Isaac Action by Margaret A. Roche against James Dreyfus. B. Tuska, for appellant. J. C. GugMatthews and Gardiner D. Matthews. No genheimer, for respondent. No opinion. Order opinion. Judgment of the Municipal Court af- affirmed, with $10 costs and disbursements. firmed, with costs.

ROWLEY, Appellant, v. NELLIS et al., ReROCHIESTER & EASTERN RAPID RY. spondents. (Supreme Court, Appellate Division, CO., Respondent, v. WEILAND et al., Appel Fourth Department. October 27, 1903.) AClants. (Supreme Court, Appellate Division, tion by Caroline Rowley, as executrix, etc., Fourth Department. November 24, 1903.) AC against James B. Nellis and others. tion by the Rochester & Eastern Rapid Railway PER CURIAM. Order appealed from (81 N. Company against Joseph H. Weiland and an- | Y. Supp. 841) reversed, with $10 costs and disother.

bursements, and motion granted. Held that, PER CURIAM. Order reversed, with $10 under the circumstances of this case, it was not costs and disbursements, and motion for re a proper exercise of its discretion for the court taxation granted, with $10 costs.

The clerk is below to hold that it was necessary that the directed, upon such retaxation, to allow all the plaintiff, in the action to foreclose the mortrejected items in the bill presented, excepting gage, should have made all the heirs parties the $10 costs of motion for the appointment of thereto, and litigated the questions with refercommissioners. See Matter of Brooklyn Union ence to their liability for any deficiency arising Elevated Railroad Co., 176 N. Y. 213, 68 X. E. in the foreclosure action. 249.

STOVER, J., not voting.

and 118 New York State Reporter ROYAL BAKING POWDER CO., Respond-1 SCHAIBLE, Respondent, V. TETZLOFF, ent, v. HOAGLAND et al., Appellants. (Su- Appellant. (Supreme Court, Appellate Divipreme Court, Appellate Division, First Depart- ' sion, Second Department. November 20, 1903.) ment. October 23, 1903.) Action by the Royal Action by Phæbe A. Schaible against Amelia Baking Powder Company against Raymond | Tetzloff. Hoagland and others. W. N, Dykman, for appellants. L. G. Reed, for respondent.

I PER CURIAM. Application for substitution No

of administrator granted, and order signed diopinion. Judgment affirmed, with costs, on the

recting the amendment of the order of affirmopinion of the referee.

ance nunc pro tunc as of the date of argument. RUSSELL, Respondent, V. GARLOW, Ap

See Bergen v. Wyckoff, 1 Civ. Proc. R. i. pellant. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) AC SCHAUB, Appellant, v. STATE, Respondent. tion by Frances Russell against Simon Garlow. (Supreme Court, Appellate Division, Third De No opinion. Judgment and order affirmed, with partment. November 11, 1903.) Action by_Barcosts.

bara Eyer Schaub, as executrix of Jacob

Schaub, deceased, against the state of New SALIS, Respondent, v. METROPOLITAN

York. No opinion. Judgment unanimously afST. RY. CO., Appellant. (Supreme Court, Ap

firmed, with costs. pellate Division, First Department. November 6, 1903.) Action by Emil Salis against the Met

SCHLITT, Respondent, v. UNION RY. 00. ropolitan Street Railway Company. H. Melville,

OF NEW YORK CITY, Appellant, et al. (Sufor appellant. H. A. Heydt, for respondent preme Court, Appellate Term. June 22, 1903.) No opinion. Indement and order affirmed with Action by Anna Schlitt against the Union Railcosts.

way Company of New York City. Judgment for plaintiff, and defendant appeals. Affirmed.

H. A. Robinson (F. A. Gaynor and Bayard H. SAMMONS et al., Respondents, v. ITHACA | Ames, of counsel), for appellant. S. S. Koenig, ST. RY. CO., Appellant. (Supreme Court, Ap- for respondent. pellate Division, Third Department. December 1, 1903.) Action by Hanorah Sammons, as ad-1

-I PER CURIAM. Judgment and order afirmministratrix, etc., and others, against the Ithaca, ed, with costs. Street Railway Company. No opinion. Mo 1 MacLEAN, J. (dissenting). A medical man, tion denied.

who said on his cross, “I don't know how many

cases I am interested in against the same comSAMMONS et al., Respondents, v, ITHACA pany," volunteered again and again to tell comST. RY. CO.. Appellant." (Supreme Court. Ap- plaints made to him by the plaintiff. It was pellate Division, Third Department. Novem- error to deny the motions, promptly made, to ber 11, 1903.) 'Action by Honorah Sammons,

strike out these too willingly given gratuities, as administratrix, etc., and others, against the and so let hearsay, not even asked for, go to Ithaca Street Railway Company. "No opinion. ! the jury accompanied with the consideration at: Judgment and order unanimously affirmed, with costs.

years' practice. The same professional person.

having testified that the plaintiff was suffering SAVAGE, Appellant, v. BURNHAM et al.,

from some concussion of the brain, and he was

led by certain symptoms to believe that there Respondents. (Supreme Court, Appellate Divi

was evidence of concussion of the brain, was not sion, First_Department. October 16, 1903.)

suffered, upon cross-examination by the defendAction by Emma J. Savage, as administratrix,

ant, to answer questions tending to test the against Sigourney Burnham and others. No

accuracy of his diagnosis, and also to show opinion. Motion denied, with $10 costs.

that that term might mean with him something

less serious than could be attributed to it. Fur SAVAGE, Appellant, v. BURNHAM et al.,

thermore, in summing up, counsel for the coRespondents. (Supreme Court, Appellate Divi

defendant Waite and counsel for the plaintiff sion, First_Department. November 6, 1903.)

made statements as of the law applicable to the Action by Emma J. Savage, as administratrix,

cause, imposing a liability not incurred by the against Sigourney Burnham and others. H. D.

defendant appellant. To each such statement Cohen, for appellant. L. Lowenstein, for re

exception was taken, but the learned trial jusspondents. No opinion. Order affirmed, with

tice neither rebuked the untoward utterances in $10 costs and disbursements.

answer to the exceptions por corrected them in SAXTON, Appellant, v. NATIONAL CASH

his charge. In my opinion the judgment should

be reversed. REGISTER CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by Frank J. Saxton, SCHLOTTERER, Respondent, v. BROOKas trustee, etc., against the National Cash Reg. LYN & N. Y. FERRY CO., Appellant. (Suister Company. No opinion. Motion to dismiss | preme Court, Appellate Division, Second Deappeal denied, with $10 costs and disburse- partment. November 13, 1903.) Action by ments. Held, that the time within which to Louisa Schlotterer, an infant, etc., against the appeal from the judgment, as modified by the Brooklyn & New York Ferry Company. No order of June 6, 1903, had not expired at the opinion. Reargument ordered for Monday, Notime of the service of the notice of appeal. vember 23, 1903.

ation 0

of 20

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In re SCHMIDT. (Supreme Court, Appel SHAW, Appellant, v. UNION BAG & PAlate Division, Second Department. November PER CO., Respondent. (Supreme Court, Ap13, 1903.) In the matter of the appraisal of the pellate Division, Third Department. November estate of Anna M. Schmidt, deceased, under 11, 1903.) Action by Jack Shaw against the acts relating to the taxable transfers of prop- Union Bag & Paper Company. erty. No opinion. Order affirmed, with $10 PER CURIAM. Judgment affirmed, with costs and disbursements.

costs. SCHMIEG, Respondent, v. UNION RY. CO.,

CHASE, J., dissents.
Appellant. (Supreme Court, Appellate Division,
First Department. November 20, 1903.) AC-

SHEEHY, Respondent, V. MANHATTAN tion by Elizabeth Schmieg, as administratrix, RY. CO... Appellant. (Supreme Court, Appelagainst the Union Railway Company of New late Division, First Department. November 6, York City. C. F. Brown, for appellant. M. C. 1903.) Action by Frank P. Sheehy against the Heine, for respondent.

Manhattan Railway Company. A. O. TownPER CURIAM. Judgment and order afirm- ent.' No opinion. Order affirmed, with $10

send, for appellant. E. M. Felt, for responded, with costs.

costs and disbursements. VAN BRUNT, P. J., and MCLAUGHLIN, J., dissent.

SHOULETTE, Appellant, V. TOWN OF

ROSSIE, Respondent. (Supreme Court, AppelSCHNURR, Appellant, v. QUINN, Respond-late Division, Third Department. November ent (Supreme Court, Appellate Division, Sec-11, 1903.) Action by Maria Shoulette against ond Department. November 13, 1903.) Áction the town of Rossie. No opinion. Judgment by Tilly Schnurr against Alexander Quinn. unanimously affirmed, with costs. No opinion. Reargument ordered for Monday, November 23, 1903.

SILBER, Respondent, v. ERICSON, Appel

lant. (Supreme Court, Appellate Term. NoSCHRIEBER, Respondent, v. TILYOU, Ap-vember 6, 1903.) Action by Mendle Silber pellant. (Supreme Court, Appellate Division, against Hjalmer Ericson. From a judgment First Department. October 23, 1903.) Action for plaintiff, defendant appeals. Reversed. by Albert Schrieber against George Tilyou. Frayer, White & Seaman, for appellant. JaH. E. Heistad, for appellant. N. J. O'Connell, coves & Mullen, for respondent. for respondent. No opinion. Judgment and or BLANCHARD, J. As the action was not der affirmed, with costs.

brought by the real party in interest, and the

finding of the trial court is clearly against not SCHU, Respondent, v. HUNTER ARMS only the weight of evidence, but the evidence, CO., Appellant. (Supreme Court, Appellate Din the judgment must be reversed, and a new trial vision, Fourth Department. November 17, ordered, with costs to appellant to abide the 1903.) Action by Frank N. Schu against the event. All concur. Hunter Arms Company. No opinion. Judgment and order aflirmed, with costs.

SILVER, Respondent, v. WILLIAMS et al.,

Appellants. (Supreme Court, Appellate DiviSCHULSINGER, Appellant, v. BLAU et al., sion, Second Department. November 20, 1903.) Respondents. (Supreme Court, Appellate Divi- | Action by Sam Silver against Thomas M. Wilsion, First Department. October 16, 1903.) | lians and others. No opinion. Judgment of the Action by Dora Schulsinger against Carrie Blau | Municipal Court allirmed, with costs. and others. No opinion. Motion denied, with $10 costs.

SILVERNAIL, Respondent, v. METROPOL

ITAN ST. RY. CO., Appellant. (Supreme Court, SCHUTZ, Respondent, v. UNION RY. CO., | Appellate Term. November 18, 1903.) Action Appellant. (Supreme Court, Appellate Divi- by Agnes Silvernail against the Metropolitan sion, Second Department. November 13, 1903.) Street Railway Company. From an order setAction by Friedrich Otto Schutz against the ting aside a verdict and judgment for defendant, Union Railway Company of New York City. and granting a new trial to plaintiff on the

PER CURIAM. Judgment and order aflirm-ground of newly discovered evidence, defended, with costs.

ant appeals. Affirmed. Henry A. Robinson (F. WOODWARD, J., dissents.

A. Gaynor, of counsel), for appellant. Watts

& Merrill, for respondent. SELLECK, Respondent, v. GRAY, Appel PER CURIAM. The order appealed from lant. (Supreme Court, Appellate Division, was made in the exercise of a sound discretion Third Department. November 11, 1903.) AC- and in furtherance of justice, and upon the tion by Daniel P. Selleck against Byron Gray. authority of Klinger v. Markowitz, 54 App. No opinion. Judgment affirmed, with costs. Div. 299, 65 N. Y. Supp. 369, 66 N. Y. Supp.

1135, and Serwer v. Serwer, 71 App. Div. 415, In re SEWARD. (Supreme Court, Appellate 75 N. Y. Supp. 812, it must be allirmed, with Division, Third Department. November 11, costs and disbursements. 1903.) In the matter of proving the last will and testament of John VV. Seward, deceased. In re SIMONDS FURNACE CO. (Supreme No opinion. Decree of the surrogate unani-Court, Appellate Division, Second Department. mously affirmed, with costs.

November 13, 1903.) In the matter of the

and 118 New York State Reporter application of a majority of the directors of under the circumstances, it must not be assumed the Simonds Furnace Company for a dissolu- | that the Court of Appeals by said decision intion. No opinion. Order affirmed, with $10 tended to award plaintiff, if successful upon a costs.

Irew trial, costs upon the first appeal to this

court, which had been expressly withheld by the SIRE, Appellant, v. SHUBERT et al., Re

decision of this court upon said appeal. spondents. (Supreme Court, Appellate Division,

STQVER, J., not voting. First Department. November 20, 1903.) ACtion by Henry S. Sire against Samuel S. Shu

SMITH, Respondent, v. UTICA KNITTING bert and others. F. Bien, for appellant. W.

CO., Appellant. (Supreme Court, Appellate DiKlein, for respondents. No opinion. Order af vision, Fourth Department. October 27, 1903.) firmed, with $10 costs and disbursements.

Action by George C. Smith, as administrator,

against the Utica Knitting Company. SKINNER, Respondent, V. FIELD, et al., PER CURIAM, Judgment and order reversAppellants. (Supreme Court, Appellate Divi-ed, and new trial ordered, with costs to the sion, Fourth Department. November 17, 1903.) | appellant to abide event, upon questions of law Action by Henry J. Skinner against Edgar K. only, the facts having been examined and no Field and another. No opinion. Judgment af- error found therein, upon the ground that the firmed, with costs.

evidence does not show that plaintiff's intestate

was free from contributory negligence, and the In re SMITH. (Supreme Court, Appellate

further ground that the plaintiff's intestate as

enye sumed the risk. Division, Second Department. November 13, 1903.) In the matter of Samuel B. Smith, as WILLIAMS and NASH, JJ., vote for rereceiver, etc., of Count W. Weeks, and another. versal upon the law and the facts, upon the No opinion. Order affirmed, with $10 costs and ground that the finding of the jury that there disbursements.

was absence of contributory negligence was con

trary to the evidence, and the finding that the SMITH V. HERTER. (Supreme Court, Ap

defendant was guilty of negligence was con

trary to the evidence, because the defendant, pellate Division, First Department. October 23, 1903.) Action by Edward Smith against

under the circumstances of the case, owed the

intestate no duty to have its elevator in difMaria A. Herter. No opinion. Motion denied,

ferent condition from what it was; he having upon payment of $10 costs, and, upon payment

assumed the risk thereof. of an additional $10, leave given to apply to the

STOVER, J., not voting. court below to open default. SMITH, Appellant, v. HUDSON VALLEY

| In re SNEDEKER. (Supreme Court, AppelRY. CO., Respondent. (Supreme Court, Appel

late Division, Second Department. November late Division, Third Department. November 11,

1 13, 1903.) In the matter of the accounting by 1903.) Action by Kittie F. Smith against the

Ada May Snedeker, administratrix of the goods, Hudson Valley Railway Company. No opinion.

chattels, and credits of Charles Snedeker, de Judgment unanimously affirmed, with costs.

ceased.

PER CURIAM. We think that this proceedSMITH, Respondent, v. LEHIGH VALLEY ing was not a trial within the meaning of secR. CO., Appellant. (Supreme Court, Appellate tion 2576 of the Code, and that therefore the Division. Fourth Department. October 27, | appeal book may be ordered on file upon the 1903.) Action by Porter D. Smith, as adminis- stipulation of the attorneys. trator, against the Lehigh Valley Railroad Company.

SNOWDEN, Respondent, v. TOWN OF PER CURIAM. Order reversed, without

SOMERSET, Appellant. (Supreme Court, Apcosts of this appeal to either party. Motion

pellate Division, Fourth Department. Novemfor retaxation of costs granted by disallowing

ber 24, 1903.) Action by Sarah J. Snowden costs taxed by plaintiff upon and of the first

against the town of Somerset. appeal to this court, with $10 costs of said PER CURIAM. Judgment and order remotion; otherwise, said motion is denied. versed, and new trial ordered, with costs to Held, that the decision and judgment of this the appellant to abide event, upon questions of court upon the first appeal, reducing plaintiff's law only; the facts having been examined and recovery, was not intended to, and did not, de- no error found therein. Held, that it was inprive him of the costs awarded for and upon competent to allow the plaintiff's witness, the first trial; also held, that the decision and Sprague, to testify to declarations made to him judgment of this court upon said first appeal by the plaintiff, long after the accident. id that the judgment of the court below, as modi- regard to the manner in which she attempted fied. be "aflirmed, without costs," was not in- to get out of the wagon and received her injutended to, and did not, deprive plaintiff of the ries; also held, that it was error for the trial costs awarded in the court below, but related justice to charge the jury in effect that it was a simply to the costs upon said appeal to this matter of very little importance for them to court; also held, that the decision of the Court determine just what plaintiff's injury was, or of Appeals that the judgment recovered upon what the precise nature of the latter was. the first trial be reversed, "with costs to abidel McLENNAN, P. J., and SPRING, J., disthe event," entitled plaintiff to tax costs in sent upon the ground that the errors were not said Court of Appeals, and also those recovered of sufficient importance to require the granting in Supreme Court upon the first trial, and that, 'of a new trial.

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