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and 118 New York State Reporter the assessor of the city of Poughkeepsie for the year 1902. No opinion. The court desires to see the counsel in this case.

POUGHKEEPSIE TRUST CO. v. LANE et al. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) Action by the Poughkeepsie Trust Company against Charles E. Lane and others, constituting the board of review of assessments, etc. No opinion. Appeal withdrawn by consent of the parties.

PRESCOTT, Respondent, v. VILLAGE OF TICONDEROGA, Appellant. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) Action by Edwin A. Prescott against the village of Ticonderoga. No opinion. Judgment and order unanimously affirmed, with costs.

PRICE et al., Appellants, v. LOVELL, Respondent. (Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) Action by Milbert F. Price and another against Joseph Lovell. No opinion. Judgment and order affirmed, with costs.

In re PURBY. (Supreme Court, Appellate Division, Third Department. November 17, 1903.) In the matter of the charges against Alonzo A. Purby, an attorney of the Supreme Court of the state of New York.

PER CURIAM. Ordered that Henry P. Pendrick, Esq., of Saratoga Springs, N. Y., be appointed referee to take testimony and report to the court, with his opinion thereon, and that Horace E. McKnight, Esq., of Ballston Spa. N. Y., be substituted as attorney in place of George R. Salisbury, Esq., to prosecute the proceeding.

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PER CURIAM. Substantially nothing but a question of fact is involved in this case. The claim of the defendant that he should have been allowed to show a custom prevailing with reference to the dealings had in the New York Furniture Exchange is not available. He makes no claim, either in his answer or in his testimony, that he did not purchase the identical goods shown him, and that those identical goods were not to be delivered to him, but other goods of which the articles shown were samples. Judgment affirmed, with costs.

RANGER, Respondent, v. THALMANN_et al., Appellants. (Supreme Court, Appellate Division, First Department. October 16, 1903.) Action by Solomon Ranger against Ernst Thalinann and others. No opinion. Motion granted.

RANSWEILER, Respondent, v. WATSON et al., Appellants. (Supreme Court, Appellate 1903.) Action by Henry Ransweiler, an infant, Division, Second Department. November 13, etc., against James H. Watson and James H. Pittinger.

PER CURIAM. Judgment and order affirmed, with costs.

WOODWARD, J., dissents.

REED & CARNRICK, Respondents, r. WHITE et al., Appellants. (Supreme Court, Appellate Division, Third Department. November 17, 1903.) Action by Reed & Carnrick against Fred White and others. No opinion. Judgment modified, by inserting provision that plaintiffs first tender to defendants the sum of $500 for a conveyance of said premises, and, in case said conveyance shall not be made, plaintiffs shall have the relief provided by said judgment, and, as so modified, affirmed, without costs to either party. If order is not agreed upon, to be settled by HOUGHTON, J.

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REILLY v. FREEMAN et al. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by John Reilly, as assignee, against Charles Q. Freeman and others. No opinion. Motion denied, with $10 costs.

RETTAGLIATTA, Appellant, V. HAYWARD et al., Respondents. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by Anna P. Rettagliatta, as administratrix, against Thomas J. Hayward and others. J. E. Judge, for appellant. Joseph N. Tuttle, for respondents. No opinion. Judg ment affirmed, with costs, upon the authority of Gmaehle v. Rosenberg, 83 App. Div. 339, 82 App. Div. 366.

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RIGAS, Respondent, v. LIVINGSTON et al., Appellants. (Supreme Court, Appellate Division, First Department. October 16, 1903.) Action

by Peter Rigas against George Livingston, as commissioner, etc.. and others. No opinion. Motion denied, with $10 costs.

RIGAS, Respondent, v. LIVINGSTON et al., Appellants. (Supreme Court, Appellate Divi sion, First Department. November 20, 1903.) Action by Peter Rigas against George R. Livingston and others. No opinion. Motion granted for leave to go to Court of Appeals upon giving undertaking. Question to be settled upon settlement of order.

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RILEY, Respondent, v. TOWN OF CUBA, Appellant. (Supreme Court. Appellate Division, Fourth Department. October 27, 1903.) Action by Michael Riley against the town of Cuba. No opinion. Judgment and order affirmed, with costs.

ROBBINS, Respondent, v. BRIDGMAN, Appellant. (Supreme Court, Appellate Term. November 18, 1903.) Action by Marcus Robbins against Malcolm L. Bridgman. From a judgment for plaintiff, defendant appeals. Affirmed. Charles H. Luscomb, for appellant. Maas & Goldberg, for respondent.

BLANCHARD, J. The only question which appears to have been seriously litigated in this action was whether or not the plaintiff's assignor was able to secure a theatrical license, as contemplated by the agreement of August, 1902. This was a question of fact, which the trial justice resolved in favor of the plaintiff, and we think his determination is fully justified by the evidence in the case. Judgment must be affirmed, with costs. All concur.

ROBINSON v. METROPOLITAN ST. RY. CO. (Supreme Court, Appellate Division, First Department. November 13, 1903.) Action by William Robinson against Metropolitan Street Railway Company. No opinion. Motion dis

missed.

ROGERSON FRUIT & COLD STORAGE CO., Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by the Rogerson Fruit & Cold Storage Company against the New York Central & Hudson River Railroad Company.

PER CURIAM. Order reversed, with $10 costs and disbursements, and motion granted, upon payment by the defendant of all costs, except those upon this appeal, subsequent to the service of the original answer, with leave to the plaintiff to discontinue the action without costs. In case of such discontinuance, the plaintiff to recover costs as stated. Held that, the laches being sufficiently excused and it appearing that the plaintiff will not lose any right existing at the time of the commencement of the action by the proposed amendment, it must be regarded as in furtherance of justice to permit the defendant to set up the terms of the contract under which the goods were shipped. STOVER, J., not voting.

ROSENBLUM. Appellant, v. LONG ISLAND R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) Action by Jacob Rosenblum against the Long Island Railroad Company. No opinion. Judgment and order unanimously affirmed, with costs.

ROSENSTOCK v. DESSAR et al. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by Edgar H. Rosenstock, as ancillary executor, against Adolph Dessar and others. No opinion. Motion denied.

ROTH, Appellant, v. ARNEMANN et al., Respondents. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by Frederick Roth against Martin Arnemann and others. A. P. Wagener, for appellant. J. Steiner, for respondents. No opinion. Judgment affirmed, with costs.

ROTHSCHILD, Appellant, v. DREYFUS, Respondent. (Supreme Court, Appellate Division, First Department. November 6, 1903.) Action by Victor H. Rothschild against Isaac Dreyfus. B. Tuska, for appellant. J. C. GugNogenheimer, for respondent. No opinion. Order affirmed, with $10 costs and disbursements.

ROCHE, Respondent, v. MATTHEWS et al., Appellants. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) Action by Margaret A. Roche against James Matthews and Gardiner D. Matthews. opinion. Judgment of the Municipal Court affirmed, with costs.

ROCHESTER & EASTERN RAPID RY. CO., Respondent, v. WEILAND et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. November 24, 1903.) Action by the Rochester & Eastern Rapid Railway Company against Joseph H. Weiland and another.

PER CURIAM. Order reversed, with $10 costs and disbursements, and motion for retaxation granted, with $10 costs. The clerk is directed, upon such retaxation, to allow all the rejected items in the bill presented, excepting the $10 costs of motion for the appointment of commissioners. See Matter of Brooklyn Union Elevated Railroad Co., 176 N. Y. 213, 68 N. E. 249.

ROWLEY, Appellant, v. NELLIS et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by Caroline Rowley, as executrix, etc., against James B. Nellis and others.

PER CURIAM. Order appealed from (84 N. Y. Supp. 841) reversed, with $10 costs and disbursements, and motion granted. Held that, under the circumstances of this case, it was not a proper exercise of its discretion for the court below to hold that it was necessary that the plaintiff, in the action to foreclose the mortgage, should have made all the heirs parties thereto, and litigated the questions with reference to their liability for any deficiency arising in the foreclosure action.

STOVER, J., not voting.

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ROYAL BAKING POWDER CO., Respondent, v. HOAGLAND et al., Appellants. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by the Royal Baking Powder Company against Raymond Hoagland and others. W. N. Dykman, for appellants. L. G. Reed, for respondent. No opinion. Judgment aflirmed, with costs, on the opinion of the referee.

RUSSELL, Respondent, v. GARLOW, Appellant. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) Action by Frances Russell against Simon Garlow. No opinion. Judgment and order affirmed, with

costs.

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SAVAGE, Appellant, v. BURNHAM et al., Respondents. (Supreme Court, Appellate Division, First Department. November 6, 1903.) Action by Emma J. Savage, as administratrix, against Sigourney Burnham and others. H. D. Cohen, for appellant. L. Lowenstein, for respondents. No opinion. Order affirmed, with $10 costs and disbursements.

SAXTON, Appellant, v. NATIONAL CASH REGISTER CO.. Respondent. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by Frank J. Saxton, as trustee, etc., against the National Cash Register Company. No opinion. Motion to dismiss appeal denied, with $10 costs and disbursements. Held, that the time within which to appeal from the judgment, as modified by the order of June 6, 1903, had not expired at the time of the service of the notice of appeal.

SCHAIBLE, Respondent, v. TETZLOFF, Appellant. (Supreme Court, Appellate Division, Second Department. November 20, 1903.) Action by Phoebe A. Schaible against Amelia Tetzloff.

PER CURIAM. Application for substitution recting the amendment of the order of affirmof administrator granted, and order signed diance nunc pro tunc as of the date of argument. See Bergen v. Wyckoff, 1 Civ. Proc. R. 1.

SCHAUB, Appellant, v. STATE, Respondent. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) Action by Barbara Eyer Schaub, as executrix of Jacob Schaub, deceased, against the state of New firmed, with costs. York. No opinion. Judgment unanimously af

SCHLITT, Respondent, v. UNION RY. CO. OF NEW YORK CITY, Appellant, et al. (Supreme Court, Appellate Term. June 22, 1903.) Action by Anna Schlitt against the Union Railway Company of New York City. Judgment for plaintiff, and defendant appeals. Affirmed. H. A. Robinson (F. A. Gaynor and Bayard H. Ames, of counsel), for appellant. S. S. Koenig, for respondent.

PER CURIAM. Judgment and order affirmed, with costs.

MacLEAN, J. (dissenting). A medical man, who said on his cross, "I don't know how many cases I am interested in against the same company," volunteered again and again to tell complaints made to him by the plaintiff. It was error to deny the motions, promptly made, to strike out these too willingly given gratuities. and so let hearsay, not even asked for, go to the jury accompanied with the consideration attaching to the observation of a physician of 20 years' practice. The same professional person. having testified that the plaintiff was suffering from some concussion of the brain, and he was led by certain symptoms to believe that there was evidence of concussion of the brain, was not suffered, upon cross-examination by the defendant, to answer questions tending to test the accuracy of his diagnosis, and also to show that that term might mean with him something less serious than could be attributed to it. Furthermore, in summing up, counsel for the codefendant Waite and counsel for the plaintiff made statements as of the law applicable to the cause, imposing a liability not incurred by the defendant appellant. To each such statement exception was taken, but the learned trial justice neither rebuked the untoward utterances in answer to the exceptions nor corrected them in be reversed. his charge. In my opinion the judgment should

SCHLOTTERER, Respondent, v. BROOKLYN & N. Y. FERRY CO., Appellant. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) Action by Louisa Schlotterer, an infant, etc., against the Brooklyn & New York Ferry Company. No opinion. Reargument ordered for Monday, November 23, 1903.

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

SHAW, Appellant, v. UNION BAG & PAPER CO., Respondent. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) Action by Jack Shaw against the Union Bag & Paper Company. PER CURIAM. Judgment affirmed, with costs.

CHASE, J., dissents.

SHEEHY, Respondent, v. MANHATTAN RY. CO., Appellant. (Supreme Court, Appellate Division, First Department. November 6, 1903.) Action by Frank P. Sheehy against the Manhattan Railway Company. A. Ö. Townsend, for appellant. E. M. Felt, for respondent. No opinion. Order affirmed, with $10 costs and disbursements.

Judgment

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.) Action the town of Rossie. No opinion. by Tilly Schnurr against Alexander Quinn. unanimously affirmed, with costs. No opinion. Reargument ordered for Monday, November 23, 1903. SILBER, Respondent, v. ERICSON, Appellant. (Supreme Court, Appellate Term. SCHRIEBER, Respondent, v. TILYOU, Ap-vember 6, 1903.) Action by Mendle Silber pellant. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by Albert Schrieber against George Tilyou. H. E. Heistad, for appellant. N. J. O'Connell, for respondent. No opinion. Judgment and order affirmed, with costs.

SCHU, Respondent, v. HUNTER ARMS CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) Action by Frank N. Schu against the Hunter Arms Company. No opinion. Judgment and order affirmed, with costs.

SCHULSINGER, Appellant, v. BLAU et al., Respondents. (Supreme Court, Appellate Division, First Department. October 16, 1903.) Action by Dora Schulsinger against Carrie Blau and others. No opinion. Motion denied, with $10 costs.

SCHUTZ, Respondent, v. UNION RY. CO., Appellant. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) Action by Friedrich Otto Schutz against the Union Railway Company of New York City. PER CURIAM. Judgment and order affirmed, with costs.

WOODWARD, J., dissents.

SELLECK, Respondent, v. GRAY, Appellant. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) Action by Daniel P. Selleck against Byron Gray. No opinion. Judgment affirmed, with costs.

In re SEWARD. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) In the matter of proving the last will and testament of John W. Seward, deceased. No opinion. Decree of the surrogate unanimously affirmed, with costs.

No

against Hjalmer Ericson. From a judgment for plaintiff, defendant appeals. Reversed.. Frayer, White & Seaman, for appellant. Jacoves & Mullen, for respondent.

BLANCHARD, J. As the action was not brought by the real party in interest, and the finding of the trial court is clearly against not only the weight of evidence, but the evidence, the judgment must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.

SILVER, Respondent, v. WILLIAMS et al., Appellants. (Supreme Court, Appellate Division, Second Department. November 20, 1903.) Action by Sam Silver against Thomas M. Williams and others. No opinion. Judgment of the Municipal Court affirmed, with costs.

SILVERNAIL, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, Appellate Term. November 18, 1903.) Action by Agnes Silvernail against the Metropolitan Street Railway Company. From an order setting aside a verdict and judgment for defendant, and granting a new trial to plaintiff on the ground of newly discovered evidence, defendant appeals. Affirmed. Henry A. Robinson (F. A. Gaynor, of counsel), for appellant. Watts & Merrill, for respondent.

PER CURIAM. The order appealed from was made in the exercise of a sound discretion and in furtherance of justice, and upon the authority of Klinger v. Markowitz, 54 App. Div. 299, 65 N. Y. Supp. 369, 66 N. Y. Supp. 1135, and Serwer v. Serwer, 71 App. Div. 415, 75 N. Y. Supp. 842, it must be affirmed, with costs and disbursements.

In re SIMONDS FURNACE CO. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) In the matter of the

and 118 New York State Reporter

application_of_a majority of the directors of the Simonds Furnace Company for a dissolution. No opinion. Order affirmed, with $10

costs.

SIRE, Appellant, v. SHUBERT et al., Respondents. (Supreme Court, Appellate Division, First Department. November 20, 1903.) Action by Henry S. Sire against Samuel S. Shubert and others. F. Bien, for appellant. W. Klein, for respondents. No opinion, Order affirmed, with $10 costs and disbursements.

SKINNER, Respondent, v. FIELD, et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) Action by Henry J. Skinner against Edgar K. Field and another. No opinion. Judgment affirmed, with costs.

In re SMITH. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) In the matter of Samuel B. Smith, as receiver, etc., of Count W. Weeks, and another. No opinion. Order affirmed, with $10 costs and disbursements.

SMITH V. HERTER. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by Edward Smith against Maria A. Herter. No opinion. Motion denied, upon payment of $10 costs, and, upon payment of an additional $10, leave given to apply to the court below to open default.

SMITH, Appellant, v. HUDSON VALLEY RY. CO., Respondent. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) Action by Kittie F. Smith against the Hudson Valley Railway Company. No opinion. Judgment unanimously affirmed, with costs.

SMITH, Respondent, v. LEHIGH VALLEY R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by Porter D. Smith, as administrator, against the Lehigh Valley Railroad Com

pany.

PER CURIAM. Order reversed, without costs of this appeal to either party. Motion for retaxation of costs granted by disallowing costs taxed by plaintiff upon and of the first appeal to this court, with $10 costs of said motion; otherwise, said motion is denied. Held, that the decision and judgment of this court upon the first appeal, reducing plaintiff's recovery, was not intended to, and did not, deprive him of the costs awarded for and upon the first trial; also held, that the decision and judgment of this court upon said first appeal that the judgment of the court below, as modified, be "affirmed, without costs," was not intended to, and did not, deprive plaintiff of the costs awarded in the court below, but related simply to the costs upon said appeal to this court; also held, that the decision of the Court of Appeals that the judgment recovered upon the first trial be reversed, "with costs to abide the event," entitled plaintiff to tax costs in said Court of Appeals, and also those recovered in Supreme Court upon the first trial, and that,

under the circumstances, it must not be assumed that the Court of Appeals by said decision intended to award plaintiff, if successful upon a new trial, costs upon the first appeal to this court, which had been expressly withheld by the decision of this court upon said appeal

STOVER, J., not voting.

SMITH, Respondent, v. UTICA KNITTING CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by George C. Smith, as administrator, against the Utica Knitting Company.

PER CURIAM. Judgment and order reversed, and new trial ordered, with costs to the appellant to abide event, upon questions of law only, the facts having been examined and no error found therein, upon the ground that the evidence does not show that plaintiff's intestate was free from contributory negligence, and the further ground that the plaintiff's intestate assumed the risk.

WILLIAMS and NASH, JJ., vote for reversal upon the law and the facts, upon the ground that the finding of the jury that there was absence of contributory negligence was contrary to the evidence, and the finding that the trary to the evidence, because the defendant, defendant was guilty of negligence was conunder the circumstances of the case, owed the intestate no duty to have its elevator in different condition from what it was; he having assumed the risk thereof.

STOVER, J., not voting.

In re SNEDEKER. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) In the matter of the accounting by Ada May Snedeker, administratrix of the goods, chattels, and credits of Charles Snedeker, de

ceased.

PER CURIAM. We think that this proceeding was not a trial within the meaning of section 2576 of the Code, and that therefore the appeal book may be ordered on file upon the stipulation of the attorneys.

SNOWDEN, Respondent, v. TOWN OF SOMERSET, Appellant. (Supreme Court, Appellate Division, Fourth Department. Novem ber 24, 1903.) Action by Sarah J. Snowden against the town of Somerset.

PER CURIAM. Judgment and order reversed, and new trial ordered, with costs to the appellant to abide event, upon questions of law only; the facts having been examined and no error found therein. Held, that it was incompetent to allow the plaintiff's witness, Sprague, to testify to declarations made to him by the plaintiff, long after the accident, in regard to the manner in which she attempted to get out of the wagon and received her inju ries; also held, that it was error for the trial justice to charge the jury in effect that it was a matter of very little importance for them to determine just what plaintiff's injury was, or what the precise nature of the latter was.

MCLENNAN, P. J., and SPRING, J., dissent upon the ground that the errors were not of sufficient importance to require the granting of a new trial.

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