SOMMER, Appellant, v. SOMMER et al., | pellant. T. Farley, for respondent. No opinion. Respondents. (Supreme Court, Appellate Divi- Order affirmed, with $10 costs and disburse sion, First Department. November 13, 1903.) ments. Action by Helena Sommer against Frederick W. Sommer and others. No opinion. Motion denied. SPECTOR, Respondent, v. SAMUELS, Appellant. (Supreme Court, Appellate Division, Second Department. November 20, 1903.) Action by Charles Spector against Aaron Samuels. No opinion. Judgment of the Municipal Court affirmed, by default, with costs. STEIN et al. v. MARKS et al. (Supreme Court, Appellate Division, First Department. November 6, 1903.) Action by Charles Stein and others against Michael Marks and others. B. Patterson, for appellants. N. Burkan, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. STEMMLER et al., Appellants, v. MAYOR, ETC., OF NEW YORK, Respondents. (SuSPENCER v. TOWN OF SARDINIA. (Supreme Court, Appellate Division, First Departpreme Court, Appellate Division, Fourth De- ment. November 6, 1903.) Action by Theopartment. November 24, 1903.) Action by dore W. Stemmler and others against the Ella D. Spencer against the town of Sardinia. mayor, etc., of New York. D. McCurdy, for No opinion. Motion to amend order, dated July appellants. T. Farley, for respondents. No 7, 1903, allowing an appeal from the judgment opinion. Judgment and order affirmed, with and order of this court to the Court of Ap- costs. peals, granted, and said order is amended by adding thereto: "And this court hereby certifies that in its opinion a question of law is involved in this case which ought to be reviewed by the Court of Appeals." SPRINGER, Appellant, v. FUCHS & LANG MFG. CO., Respondent. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by John H. Springer, as receiver, against the Fuchs & Lang Manufacturing Company. E. Crandall, for appellant. J. E. Ludden, for respondent. No opinion. Judgment affirmed, with costs. STANDARD TRUST CO., Respondent, v. NEW YORK CENT. & H. R. R. CO., et al., Appellants. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) Action by the Standard Trust Company, as executor, etc., of Alfred M. Perrin, deceased, against the New York Central & Hudson River Railroad Company and others. No opinion. Judgment and order unanimously affirmed, with costs; GOODRICH, P. J., being of opinion, however, that the verdict is excessive. STERLING et al. v. MURRAY et al. (Supreme Court, Appellate Division, First Department. November 6, 1903.) Action by John W. Sterling and others against Henry Murray and others. 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. In re STILES. (Supreme Court, Appellate Division, Third Department. December 3. 1903.) In the matter of the proceedings to disbar Esmond Stiles, an attorney. No opinion. Ordered that Hon. Samuel Edwards, of Hudson, N. Y., be appointed referee to take testimony and report to the court, with his opinion thereon. STONE, Respondent, v. CRONIN, Appellant. (Supreme Court, Appellate Division, Second Department. November 13, 1903.) Action by Medad E. Stone, as administrator, etc., against Bridget Cronin, individually, etc. No opinion. Motion denied, with leave to renew at the next term, unless the case is then in readi STANTON, Respondent, v. LUDWIG, Ap-ness for argument. pellant. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by Mary D. Stanton against Charles Ludwig. No opinion. Judgment and order aflirmed, with costs. The form of the order to be settled by and before Mr. Justice HISCOCK on two days' notice. STATE BANK, Respondent, v. SILBERMAN et al., Appellants. (Supreme Court, Appellate Division, First Department. November 6, 1903.) Action by the State Bank against Rosie Silberman and others. N. Alienikoff, for appellants. B. N. Cardozo, for respondent. No opinion. Judgment affirmed, with costs. STEARNS, Appellant, v. OPPENHEIM, Respondent, et al. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by George A. Stearns against Adolph Oppenheim, impleaded. G. A. Stearns, for ap STRAUS et al., Appellants, v. AMERICAN PUBLISHERS' ASS N et al., Respondents. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by Isidor Straus and others against the American Publishers' Association and others. No opinion. Motion granted. Question to be certified to Court of Appeals: "Are the facts stated in the complaint in this action sufficient to constitute a cause of action?" STRAUSS, Appellant, V. BROOKLYN HEIGHTS R. CO., Respondent. (Supreme Court, Appellate Term. November 18, 1903.) Action by Jacob Strauss against the Brooklyn Heights Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed. Charles M. Rosenthal, for appellant. H. F. Ives, for respondent. BISCHOFF, J. The case was submitted to the trial justice for decision after disagree and 118 New York State Reporter ment of the jury, and his conclusion upon the facts was based necessarily upon his estimate of the relative credibility of the witnesses who testified before him. There is no inherent improbability in the account of the accident as given by the defendant's witnesses, and the motorman was directly corroborated by a passenger who had a clear view of occurrence. Accepting this evidence, the collision was due mainly to the recklessness of the plaintiff's servant, and the judgment for the defendant is unassailable. Judgment affirmed, with costs. All concur. STURGIS, Fire Com'r, Appellant, V. SPRINGER, Respondent. (Supreme Court, Appellate Term. June 22, 1903.) Action by Thomas Sturgis, as fire commissioner of the city of New York, against John H. Springer. Judgment for defendant, and plaintiff appeals. Affirmed. George L. Rives (Arthur S. Cosby, of counsel), for appellant. Truax & Crandall, for respondent. PER CURIAM. The plaintiff brought suit against the defendant to recover statutory penalties for certain violations of section 762 of the Greater New York Charter (Laws 1897, p. 263, c. 378), in that he caused or permitted people to stand in the aisles of his theater during a public performance, and neglected or refused to remove them when informed that they were there. It is unnecessary to decide whether the parts of the theater where people were alleged, and it was testified, to be standing, were aisles or not, in view of the contradictory character of the testimony given by the numerous witnesses called by either side as to the fact that they were there and standing without being removed, and the determination of the trial justice thereon. The judgment in favor of the defendant must therefore be affirmed, with costs. same case, reported 79 App. Div. 362, 79 N. Y. Supp. 1106. WILLIAMS, J., dissents. HISCOCK, J., not voting. SWEENEY, Respondent, V. UNITED TRACTION CO., Appellant. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) Action by Catharine Sweeney against the United Traction Company. No opinion. Judgment and order unanimously affirmed, with costs. SWIFT, Respondent, v. ASPELL & CO., ApFirst Department. November 20, 1903.) Ac pellants. (Supreme Court, Appellate Division, tion by Charles N. Swift against Aspell & Co. M. H. Cardozo for appellants. G. L. Carlisle, for respondent. No opinion. Judgment affirmed, with costs. TANENBAUM, Appellant, v. LIPPMANN et al., Respondents. (Supreme Court, Appellate Division, First Department. October 16, 1903.) Action by Moses Tanenbaum against Gustav Lippmann and others. No opinion. Motion granted, so far as it seeks to have stricken from the files and records of the court the papers on the denial of plaintiff's motion to prohibit Benno Loewy, Esq., appearing against plaintiff, etc. So far as it moves to strike from the calendar the appeal from the other order, motion denied. CHESTER, J., dissents. In re TIFFANY. (Supreme Court, Appellate Division, Fourth Department. November 24, 1903.) In the matter of the application of Chapin Tiffany for a writ of mandamus. No opinion. Order affirmed, with costs. TRINITY CHURCH OF POTSDAM, Respondent, v. BROWN, Appellant. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) Action by the Trinity Church of Potsdam, N. Y., against Milton H. Brown. SUTHERLAND, Respondent, v. LASHER, Appellant. (Supreme Court, Appellate Division, First Department. November 20, 1903.) Action by George R. Sutherland against Lewis P. Lasher. R. C. Freeman, for appellant. E. Hassett, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. ed, with costs. See 84 N. Y. Supp. 56. PER CURIAM. Judgment and order affirmHOUGHTON, J., dissents. TURNER. Appellant, v. SWARTHOUT, et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by James S. Turner against Jesse Swarthout and another. PER CURIAM. Judgment of County Court affirmed, with costs, upon the ground that the plaintiff's conduct in furnishing dinners to the proper. jurors during the progress of the trial was im- 1426, the order appealed from should be reversed, with $10 costs and disbursements, and the motion to vacate the attachment denied, with $10 costs. WILLIAMS, J., concurs in affirmance, but not solely upon the ground stated. STOVER, J., not voting. UNION BANK OF BROOKLYN, Appellant, v. CASE, Respondent. (Supreme Court, Appellate Term. November 6, 1903.) Action by the Union Bank of Brooklyn against David K. Case, individually and as trustee. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff appeals. Affirmed. BLANCHARD, J. The judgment is affirmed, with costs, for the reasons stated in opinion rendered in action No. 1. 84 N. Y. Supp. 550. All concur. UNION TRUST CO. OF ROCHESTER v. SELIG et al. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by the Union Trust Company of Rochester against Emil Selig, impleaded, etc. No opinion. Motion for reargument denied, with $10 costs. VANDERBEEK, Appellant, v. COLE, ReSecond Department. November 20, 1903.) Acspondent. (Supreme Court, Appellate Division, tion by Samuel H. Vanderbeek against Andrew ipal Court affirmed, by default, with costs. N. Cole. No opinion. Judgment of the Munic VAN VORST, Respondent, v. REED, Appellant. (Supreme Court, Appellate Division, First Department. October 16, 1903.) Action by Seymour Van Vorst against Theodore F. Reed. 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. VAN VORST, Respondent, v. REED, Appellant. (Supreme Court, Appellate Division, First Department. November 20, 1903.) Action by Seymour Van Vorst against Theodore F. Reed. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs. UNITED PRESS v. A. S. ABELL CO. et In re VAN WYCK et al. (Supreme Court, al. (Supreme Court, Appellate Division, First Appellate Division, First Department. NovemDepartment. November 13, 1903.) Action by ber 6, 1903.) In the matter of Robert A. Van the United Press against the A. S. Abell Com- Wyck and others. F. Bien, for appellant. T. pany and others. From an order vacating an Farley, for respondent. No opinion. Order afattachment, plaintiff appeals. Affirmed. Wil-firmed, with $10 costs and disbursements. liam C. Davis, for appellant. Henry T. Fay, for respondent. PER CURIAM. For the reasons stated in the opinion in United Press v. A. S. Abell Co. et al. (decided herewith) 84 N. Y. Supp. 425, the order should be affirmed, with $10 costs and disbursements. UNITED PRESS et al. v. A. S. ABELL CO. et al. (Supreme Court, Appellate Division. First Department. November 13, 1903.) Action by the United Press and others against the A. S. Abell Company and others. From an order vacating an attachment, plaintiff and Felix Agnus, defendant, appeal. Reversed. William C. Davis, for appellants. Henry T. Fay, for respondent. VERPLANCK, Respondent, v. MURPHY, Appellant, et al. (Supreme Court, Appellate ments. VILLAGE OF CHAMPLAIN, Appellant, v. MCCREA et al., Respondents. (Supreme Court, Appellate Division, Third Department. November 11, 1903.) Action by the village of Champlain against Matilda McCrea and others. No opinion. Final order unanimously affirmed, with costs. VOSSNACK et al., Respondents, v. GENGEL et al., Appellants. (Supreme Court, Appellate Division, Second Department. Novem PER CURIAM. For the reasons stated in the opinion in United Press et al. v. A. S. Abell Co. (herewith handed down) 84 N. Y. Supp. 425, the order appealed from should be revers-ber 20, 1903.) Action by Herman Vossnack, ed, with $10 costs and disbursements, and the Jr., and others against Jacob Gengel and othmotion to vacate the attachment denied, with ers. No opinion. Judgment of the Municipal $10 costs. Court affirmed, by consent, with $10 costs. UNITED PRESS et al. v. A. S. ABELL CO. et al. (Supreme Court, Appellate Division, First Department. November 13, 1903.) Action by the United Press and others against the A. S. Abell Company and others. From an order vacating an attachment, plaintiffs appeal. Reversed. William C. Davis, for appellants. Henry T. Fay, for respondent. PER CURIAM. For the reasous stated in the opinion in United Press et al. v. A. S. Abell Co. (herewith handed down) 84 N. Y. Supp. WALLACE V. HAVANA BRIDGE WORKS. (Supreme Court, Appellate Division, Fourth Department. December 1, 1903.) Action by James Wallace against the Havana Bridge Works. No opinion. Plaintiff's exceptions overruled, and motion for new trial denied, with costs. WALSH v. HANAN et al. (Supreme Court, Appellate Division, Second Department. October 22, 1903.) Action by Bridget Walsh, administratrix of Johanna Brogan, as adminis and 118 New York State Reporter tratrix de bonis non of Michael Walsh, deceas- | ond Department. November 13, 1903.) Action ed, against John H. Hauan and others. No by Edgar S. Werner against William R. Hearst. opinion. Motion for reargument granted, and No opinion. Motion denied. cause set down for Wednesday, November 11, 1903. WANAMAKER, Respondent, V. WESTERVELT, Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (SuHEB-preme Court, Appellate Division, Second DeBLETHWAITE, Appellant. (Supreme Court, partment. November 20, 1903.) Action by Appellate Division, First Department. October 16, 1903.) Action by John Wanamaker against Frank H. Hebblethwaite. No opinion. Motion to dismiss appeal granted, with $10 costs. WANAMAKER et al., Respondents, v. MEGRAW, Appellant. (Supreme Court, Appellate Division, First Department. November 6, 1903.) Action by John Wanamaker and others against Robert H. Megraw. L. Lally, for appellant. L. Frankel, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. WASINSKI v. NEW YORK CENT. & H. R. R. CO. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by William Wasinski against the New York Central & Hudson River Railroad Company. No opinion. Motion for reargument_denied, with $10 costs and disbursements. Motion for leave to appeal to the Court of Ap peals denied. WATERS et al. v. GAZZAM. (Supreme Court, Appellate Division, Second Department. November 20, 1903.) Action by George S. Waters and Harold B. Sherwin, doing business as copartners, etc., against Anna R. Gazzam. No opinion. Judgment affirmed, without costs. Susan Westervelt, as administratrix, etc., against New York Central & Hudson River Railroad Company. No opinion. Motion de nied. WHALEY, Respondent, v. ERIE R. CO., MCLENNAN, P. J., dissents. WHEELER, Respondent, V. CITY OF SYRACUSE, Appellant. (Supreme Court, Ap pellate Division, Fourth Department, October 27, 1903.) Action by Ezra N. Wheeler against the city of Syracuse. PER CURIAM. Interlocutory judgment affirmed, with costs, with leave to the defendant to answer upon payment of the costs of the demurrer and of this appeal. STOVER, J., not voting. R. CO., Appellant. (Supreme Court, Appellate WHITE, Respondent, v. PENNSYLVANIA Division, Fourth Department. November 24, 1903.) Action by Perry A. White, an infant, etc., against the Pennsylvania Railroad Com pany. WATSON, Respondent, v. WATSON, Ap- W. C. LOFTUS & CO., Respondent, v. BEN- WEBER, Appellant, v. LEVY, Respondent. (Supreme Court, Appellate Division, Second Department. November 25, 1903.) Action by Frank Weber against Morris Levy. No opinion. Order affirmed, with $10 costs and disbursements. WENDT et al., Respondents, v. NORTHERN ELECTRICAL MFG. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by William F. Wendt and another against the Northern Electrical Manufacturing Company. opinion. Judgment affirmed, with costs. No WERNER, Respondent, v. HEARST, Appellant. (Supreme Court, Appellate Division, Sec WHITEHALL LUMBER CO., Limited, Appellant, v. NICHOLS, Respondent. (Supreme Court, Appellate Division, Third DepartWhitehall Lumber Company, Limited, against James E. Nichols, as trustee, etc. No opinion. Judgment unanimously affirmed, with costs. WHITSON, Appellant, v. MAYOR, ETC.. OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First_Department. November 6, 1903.) Action by Fannie Whitson, as administratrix, against the mayor, etc., of New York. H. W. Unger, for appellant. C. Mellen, for respondent. No opinion. Judg ment affirmed, with costs. WILEY, Respondent, v. McCABE, Appellant. (Supreme Court, Appellate Division. Fourth Department. November 24, 1903.) Ac tion by Rosella Wiley against Hugh McCabe. No opinion. Judgment and order affirmed, with costs. WILLIAMS, Respondent, v. CLARK et al., Appellants. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by Walter D. Williams against Mary E. Clark and others. A. G. McLaughlin, for appellants. R. L. Harrison, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. WILLIAMSON, Respondent, V. NOR, Appellant. WOLFMANN v. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. October 23, 1903.) Action by Lena Wolfmann against the city of New York. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs. WOOD, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, ApOctober pellate Division, First Department. Action by Henrietta C. Wood against the Metropolitan Street Railway Company. No opinion. Motion denied. O'CON16, 1903.) (Supreme Court, Appellate Division, First Department. November 20, 1903.) Action by Lorraine L. Williamson against Michael P. O'Connor, as executor. C. E. Thorn, for appellant. A. C. Cowan, for respondent. No opinion. Judgment affirmed, with costs. WILSON, Appellant, v. DEXTER SULPHITE PULP & PAPER CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by John Wilson against the Dexter Sulphite Pulp & Paper Company. No opinion. Motion for reargument denied. Motion for leave to appeal to the Court of Appeals granted. The form of the order to be settled before WILLIAMS, J., on two days' notice. WINDNAGLE, Respondent, v. HORTON, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) Action by John R. Windnagle against Ezra L. Horton. No opinion. Judgment and order affirmed, with costs. WOHLGEMUTH, Appellant, v. HARLEM RIVER PARK AMUSEMENT CO., Respondent. (Supreme Court, Appellate Division, First Department. November 6, 1903.) Action by Albert Wohlgemuth, as administrator, against the Harlem River Park Amusement Company. J. W. Russell, for appellant. W. V. Goldberg, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. WORTHINGTON, Respondent, v. DUTCH DECORATIVE ART CO., Appellant. (Supreme Court, Appellate Term. November 18, 1903.) Action by Paul B. Worthington against the Dutch Decorative Art Company. From a judgment for plaintiff, defendant appeals. Modified. Stern, Singer & Barr, for appellant. W. H. Dodd, for respondent. PER CURIAM. The evidence established The the plaintiff's acquiescence in the reduction of nis salary subsequent to January 10, 1903, and the judgment should be reduced by $60, representing 12 weeks' work at $5 per week; that sum being the difference between the original rate of $25 and the reduced rate of $20. judgment should be modified by reducing it to $130.87, and, as so modified, affirmed, without costs of this appeal. Judgment modified by reducing amount of recovery to the sum of $130.87, and, as modified, affirmed, without costs of this appeal to either party. ZOLLER, Respondent, v. UTICA COLD STORAGE & WAREHOUSE CO., Appellant. (Supreme Court, Appellate Division, Fourth Jacob Zoller against the Utica Cold Storage & Department. October 27, 1903.) Action by Warehouse Company. PER CURIAM. Judgment affirmed, with costs. WILLIAMS, J., dissents. STOVER, J., not voting. END OF CASES IN VOL. 84. |