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SOMMER, Appellant, v. SOMMER et al., 1 pellant. T. Farley, for respondent. No opinion. Respondents. (Supreme Court, Appellate Divi- | Order aflirmed, 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.

STEIN et al. V. MARKS et al. (Supreme Court, Appellate Division, First Department.

November 6, 1903.) Action by Charles Stein SPECTOR, Respondent, v. SAMUELS, Ap and others against Michael Marks and others. pellant. (Supreme Court, Appellate Division, B. Patterson, for appellants. N. Burkan, for Second Department. November 20, 1903.) respondents. No opinion. Order affirmed, with Action by Charles Spector against Aaron Sam $10 costs and disbursements. uels. No opinion. Judgment of the Municipal Court affirmed, by default, with costs.

STEMMLER et al., Appellants, V. MAYOR,

ETC., OF NEW YORK, Respondents. (SuSPENCER v. TOWN OF SARDINIA. (Su preme 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 STERLING et al. v. MURRAY et al. (Suthat in its opinion a question of law is in preme Court, Appellate Division, First Departvolved in this case which ought to be reviewed ment. November 6, 1903.) Action by John by the Court of Appeals."

W. Sterling and others against Henry Murray

and others. No opinion. Motion denied, upon SPRINGER, Appellant, v. FUCHS & LANG

payment of $10 costs, and, upon payment of an MFG. CO., Respondent. (Supreme Court, Ap additional $10, leave given to apply to the pellate Division, First Department. October 23,

court below to open default. 1903.) Action by John H. Springer, as receiver, against the Fuchs & Lang Manufacturing Com In re STILES. (Supreme Court, Appellate pany. E. Crandall, for appellant. J. E. Lud

Division, Third Department. December 3. den, for respondent. No opinion. Judgment af 1903.) In the matter of the proceedings to firmed, with costs.

disbar Esmond Stiles, an attorney. No opinion.

Ordered that Hon. Samuel Edwards, of Hudson, STANDARD TRUST CO., Respondent, v. N. Y., be appointed referee to take testimony NEW YORK CENT. & H. R. R. CO., et al., and report to the court, with his opinion thereAppellants. (Supreme Court, Appellate Divi- on. sion, Second Department. November 13, 1903.) Action by the Standard Trust Company, as executor, etc., of Alfred M. Perrin, deceased,

STONE, Respondent, v. CRONIN, Appelagainst the New York Central & Hudson River

lant. (Supreme Court, Appellate Division, SecRailroad Company and others. No opinion.

ond Department. November 13, 1903.) Action Judgment and order unanimously affirmed, with

by Medad E. Stone, as administrator, etc., costs; GOODRICH, P. J., being of opinion,

against Bridget Cronin, individually, etc. No however, that the verdict is excessive.

opinion. Motion denied, with leave to renew at

the next term, unless the case is then in readiSTANTON, Respondent, v. LUDWIG, Ap

ness for argument. pellant. (Supreme Court, Appellate Division, Fourth Department. October 27, 1903.) AC

STRAUS et al., Appellants, v. AMERICAN tion by Mary D. Stanton against Charles Lud

PUBLISHERS' ASS'N et al., Respondents. wig. No opinion. Judgment and order aflirm

(Supreme Court, Appellate Division, First Deed, with costs. The form of the order to be

partment. October 23, 1903.) Action by Isidor settled by and before Mr. Justice HISCOCK

Straus and others against the American Pubon two days' notice.

lishers' Association and others. No opinion. Motion granted. Question to be certified to

Court of Appeals: "Are the facts stated in the STATE BANK, Respondent, V. SILBER

complaint in this action sufficient to constitute MAN et al.. Appellants. (Supreme Court, Ap-l a cause of action?" pellate Division, First Department. November 6, 1903.) Action by the State Bank against STRAUSS, Appellant, v. BROOKLYN Rosie Silberman and others. N. Alienikoff, for | HEIGHTS R. CO., Respo appellants. B. N. Cardozo, for respondent. No Court, Appellate Term. November 18, 1903.) opinion, Judgment affirmed, with costs.

Action by Jacob Strauss against the Brooklyn

Heights Railroad Company. From a judgment STEARNS, Appellant, v. OPPENHEIM, Re- for defendant, plaintiff appeals. Affirmed. spondent, et al. (Supreme Court, Appellate Di- Charles M. Rosenthal, for appellant. H vision, First Department. October 23, 1903.) Ives, for respondent. Action by George A. Stearns against Adolph BISCHOFF, J. The case was submitted to Oppenheim, impleaded. G. A. Stearns, for ap- the trial justice for decision after disagree

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and 118 New York State Reporter ment of the jury, and his conclusion upon the same case, reported 79 App. Div. 362, 79 N. Y. facts was based necessarily upon his estimate Supp. 1106. of the relative credibility of the witnesses who WILLIAMS, J., dissents. HISCOCK, J., testified before him. There is no inherent im- | not voting. probability in the account of the accident as given by the defendant's witnesses, and the motorman was directly corroborated by a pas

SWEENEY, Respondent, UNITED senger who had a clear view of occurrence.

TRACTION CO., Appellant.' (Supreme Court, Accepting this evidence, the collision was due Appellate Division, Third Department. Novemmainly to the recklessness of the plaintiff's

ber 11, 1903.) Action by Catharine Sweeney servant, and the judgment for the defendant is against the United Traction Company. No unassailable. Judgment affirmed, with costs. opinion. Judgment and order unanimously afAll concur.

firmed, with costs.

STURGIS, Fire Com'r, Appellant, V.

SWIFT, Respondent, v. ASPELL & CO., Ap

pellants. (Supreme Court, Appellate Division, SPRINGER, Respondent. (Supreme Court,

First Department. November 20, 1903.) ACAppellate Term. June 22, 1903.) Action by

tion by Charles N. Swift against Aspell & Co. Thomas Sturgis, as fire commissioner of the

M. H. Cardozo for appellants. G. L. Carlisle, city of New York, against John H. Springer. Judgment for defendant, and plaintiff appeals.

for respondent. No opinion. Judgment affirmAffirmed. George L. Rives (Arthur S. Cosby,

ed, with costs. of counsel), for appellant. Truax & Crandall, for respondent.

TANENBAUM, Appellant, V. LIPPMANN PER CURIAM. The plaintiff brought suit

et al., Respondents. (Supreme Court, Appellate against the defendant to recover statutory pen

Division, First Department. October 16, 1903.) alties for certain violations of section 762 of

Action by Moses Tanenbaum against Gustav the Greater New York Charter (Laws 1897, p.

Lippmann and others. No opinion, Motion 263, c. 378), in that he caused or permitted

granted, so far as it seeks to have stricken from people to stand in the aisles of his theater

the files and records of the court the papers on during a public performance, and neglected or

the denial of plaintiff's motion to prohibit Benno refused to remove them when informed that I Loewy, Esq., appearing against plaintiff, etc. they were there. It is unnecessary to decide

to decide So far as it moves to strike from the calendar whether the parts of the theater where people

the appeal from the other order, motion denied. were alleged, and it was testified, to be standing, were aisles or not, in view of the contradic

THOMPSON, Appellant, V. THOMPSON, tory character of the testimony given by the

Respondent. (Supreme Court, Appellate Divi numerous witnesses called by either side as to the fact that they were there and standing with

sion, Third Department. November 11, 1903.) out being removed, and the determination of the

Action by May A. Thompson against John R.

Thompson. trial justice thereon. The judgment in favor of the defendant must therefore be affirmed, PER CURIAM. Judgment affirmed, with with costs.

costs.

CHESTER, J., dissents. SULLIVAN, Appellant, v. SOUTHARD, Respondent. (Supreme Court, Appellate Division, In re TIFFANY. (Supreme Court, Appellate First Department. November 6, 1903.) Action Division. Fourth Department. November 24, by Julia Sullivan, as administratrix, against

1903.) In the matter of the application of Charles 11. Southard.. NO opinion. Motion Chapin Tiffany for a writ of mandamus. No granted, so far as to dismiss appeal, with $10

opinion. Order affirmed, with costs. costs.

TRINITY CHURCH OF POTSDAM, ReSUTHERLAND, Respondent, v. LASHER, spondent, v. BROWN, Appellant. (Supreme Appellant. (Supreme Court, Appellate Division, Court, Appellate Division, Third Department. First Department. November 20, 1903.) AC- November 11, 1903.) Action by the Trinity tion by George R. Sutherland against Lewis P. Church of Potsdam, N. Y., against Milton H. Lasher. R. C. Freeman, for appellant. E. Brown. Hassett, for respondent. No opinion. Order affirmed, with

n. Order | PER CURIAM. Judgment and order affirm. $10 costs and disbursements. I ed. with costs. See 84 N. Y. Supp. 56.

HOUGHTON, J., dissents.

SUTTER, Respondent, V. NEW YORK TURNER, Appellant, v. SWARTHOUT, et CENT. & H. R. R. CO., Appellant. (Supreme al., Respondents. (Supreme Court, Appellate Court, Appellate Division, Fourth Department. Division, Fourth Department. October 27, November 24, 1903.) Action by Carrie Sutter, 1903.) Action by James S. Turner against as administratrix, etc., against the New York

Jesse Swarthout and another. Central & Hadson River Railroad Company.

PER CURIAM. Judgment of County Court PER CURIAM. Judgment and order affirm-affirmed, with costs, upon the ground that the ed, with costs, upon authority of decision in plaintiff's conduct in furnishing dinners to the

jurors during the progress of the trial was im-426, the order appealed from should be reversproper. .

ed, with $10 costs and disbursements, and the WILLIAMS, J., concurs in affirmance, but motion to vacate the attachment denied, with not solely upon the ground stated. STOVER, $10 costs. J., not voting.

VANDERBEEK, Appellant, v. COLE, ReUNION BANK OF BROOKLYN, Appel- Second Department. November 20, 1903.) Ac

spondent. (Supreme Court, Appellate Division, lant, v. CASE, Respondent. (Supreme Court, tion by Samuel H. Vauderbeek against Andrew Appellate Term. November 6, 1903.) Action N. Cole. No opinion. Judgment of the Municby the Union Bank of Brooklyn against David ipal Court affirmed, by default, with costs. K. Case, individually and as trustee. From a judgment for defendant, and from an order denying a motion for a new trial, plaintiff ap- lant. (Supreme Court, Appellate Division, First

VAN VORST, Respondent, v. REED, Appelpeals. Affirmed.

Department. October 16, 1903.) Action by BLANCHARD, J. The judgment is affirm- Seymour Van Vorst against Theodore F. Reed. ed, with costs, for the reasons stated in opinion No opinion. Motion denied, upon payment of rendered in action No. 1. 84 N. Y. Supp. 550. $10 costs, and, upon payment of an additional All concur.

$10, leave given to apply to the court below

to open default. UNION TRUST CO. OF ROCHESTER V. SELIG et al. _(Supreme Court, Appellate Divi VAN VORST, Respondent, v. REED, Appelsion. Fourth Department. October 27, 1903.) lant. (Supreme Court, Appellate Division, First Action by the Union Trust Company of Roches- Department. November 20, 1903.) Action by ter against Emil Selig, impleaded, etc. No Seymour Van Vorst against Theodore F. Reed. opinion. Motion for reargument denied, with No opinion. Motion granted, so far as to dis. $10 costs.

miss 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.

Wildfirmed, with $10 costs and disbursements. liam C. Davis, for appellant. Henry T. Fay, for respondent.

VERPLANCK, Respondent, V. MURPHY, PER CURIAM. For the reasons stated in Appellant, et al. (Supreme Court, Appellaté

November 13, the opinion in United Press v. A. S. Abell Co. Division, Second Department. et al. (decided herewith) 84 N. Y. Supp. 425, 1903.) Action by Mary A. Verplanck against the order should be affirmed, with $10 costs and Order affirmed, ' with $10 costs and disburse

Dennis Murphy, impleaded, etc. No opinion. disbursements.

ments. UNITED PRESS et al. v. A. S. ABELL CO. et al. (Supreme Court, Appellate Division.

VILLAGE OF CHAMPLAIN, Appellant, v. First Department. November 13, 1903.) Ac McCREA et al., Respondents. (Supreme Court, tion by the United Press and others against the Appellate Division, Third Depa ment. NovemA. S. Abell Company and others. From an or- ber 11, 1903.) Action by the village of Chamder vacating an attachment, plaintiff and Felix plain against Matilda McCrea and others. No Agnus, defendaut, appeal. Reversed. William opinion. Final order unanimously affirmed, C. Davis, for appellants. Henry T. Fay, for with costs. respondent. PER CURIAM. For the reasons stated in

VOSSNACK et al., Respondents, V. GENthe opinion in United Press et al. v. A. S. Abell GEL et al., Appellants. (Supreme Court, Ap

NovemCo: (herewith handed down) 81 N. Y. Supp. pellate Division, Second Department. 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 devied, with Court affirmed, by consent, with $10 costs.

ers. No opinion. Judgment of the Municipal $10 costs.

WALLACE

HAVANA BRIDGE UNITED PRESS et al. v. A. S. ABELL CO. WORKS. (Supreme Court, Appellate Division, et al. (Supreme Court, Appellate Division, Fourth Department. December 1, 1903.) ACFirst Department. November 13, 1903.) Action by James Wallace against the Havana tion by the United Press and others against the Bridge Works. No opinion. Plaintiff's excepA. s. Abell Company and others. From an tions overruled, and motion for new trial deorder vacating an attachment, plaintiffs appeal. nied, with costs. Reversed. William C. Davis, for appellants. Henry T. Fay, for respondent.

WALSH v. HANAN et al. (Supreme Court, PER CURIAM. For the reasous stated in Appellate Division, Second Department. Octothe opinion in United Press et al. v. A. S. Abell ber 22, 1903.) Action by Bridget Walsh, adCo. (herewith handed down) 84 N. Y. Supp. I ministratrix of Johanna Brogan, as adminis

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and 118 New York State Reporter tratrix de bonis non of Michael Walsh, deceas-, ond Department. November 13, 1903.) Action ed, against John H. Hanan 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.

WESTERVELT, Appellant, v. NEW YORK

CENT. & H. R. R. CO., Respondent. (SuWANAMAKER. Respondent. v. HEB-preme Court, Appellate Division, Second De BLETHWAITE, Appellant. (Supreme Court,

partment. November 20, 1903.) Action by Appellate Division, First Department. October

Susan Westervelt, as administratrix, etc., 16, 1903.) Action by John Wanamaker against

against New York Central & Hudson River Frank H. Hebblethwaite. No opinion, Motion

Railroad Company. No opinion. Motion de to dismiss appeal granted, with $10 costs.

nied. WANAMAKER et al., Respondents, v. ME WHALEY, Respondent, v. ERIE R. CO. GRAW, Appellant. (Supreme Court, Appellate Appellant. (Supreme Court, Appellate Division, Division, First Department. November 6, Fourth Department. November 17, 1903.) 1903.) Action by John Wanamaker and others Action by Nettie M. Whaley against the Erie against Robert H. Megraw. L. Lally, for ap- Railroad Company. pellant. L. Frankel, for respondents. No opin- PER CURIAM. Judgment and order afion. Order affirmed, with $10 costs and dis-firmed, with costs. bursements.

McLENNAN, P. J., dissents. WASINSKI V. NEW YORK CENT. & H. WHEELER, Respondent, v. CITY OF R. R. CO. (Supreme Court, Appellate Division, I SYRACUSE, Appellant. (Supreme Court, ApFourth Department. October 27, 1903.) Ac- pellate Division, Fourth Department. October tion by William Wasinski against the New 27, 1903.) Action by Ezra N. Wheeler against York Central & Hudson River Railroad Com- the city of Syracuse. pany. No opinion, Motion for reargument denied, with $10 costs and disbursements. Mo-firmed. with costs with leave to the defendant

PER CURIAM. Interlocutory judgment aftion for leave to appeal to the Court of Ap peals denied.

to answer upon payment of the costs of the

demurrer and of this appeal. WATERS et al. v. GAZZAM. (Supreme

STOVER, J., not voting.
Court. Appellate Division. Second Department. We
November 20, 1903.) Action by George S. Wa-

WHITE, Respondent, v. PENNSYLVANIA ters and Harold B. Sherwin, doing business as

R. CO., Appellant. (Supreme Court, Appellate copartners, etc., against Anna R. Gazzam. No 19035

Division, Fourth Department. November 24, opinion. Judgment affirmed, without costs.

1903.) Action by Perry A. White, an infant,

etc., against the Pennsylvania Railroad ComWATSON, Respondent, v. WATSON, Ap-|

mpany. pellant. (Supreme Court, Appellate Division, 1 PER CURIAM. Judgment and order reversFourth Department. December 1, 1903.) AC-1 ed, and new trial ordered, with costs to the aption by John H. Watson against Elsie M.'Wat- | pellant to abide event, upon questions of law son. No opinion. Judgment and order afirm

and of fact. Held, that the finding of the jury ed, with costs.

that the plaintiff did not know of the danger

involved in the use of the saw without the W. C. LOFTUS & CO., Respondent, v. BEN

guard is against the weight of the evidence. NETT, Appellant. (Supreme Court, Appellate Division, First Department. October 23, 1903.) WHITEHALL LUMBER CO., Limited, Action by W. C. Loftus & Co. against James | Appellant, v. NICHOLS, Respondent. (SuG, Bennett. R. W. Oandler, for appellant. D.preme Court, Appellate Division, Third Depart. McClure, for respondent. No opinion. Judgment. November 11, 1903.) Action by the ment and order affirmed, with costs.

Whitehall Lumber Company, Limited, against

James E. Nichols, as trustee, etc. No opinion. WEBER, Appellant, v. LEVY, Respondent. Judgment unanimously affirmed, with costs. (Supreme Court, Appellate Division, Second Department. November 25, 1903.) Action by WHITSON, Appellant, V. MAYOR, ETC.. Frank Weber against Morris Levy. No opin-OF NEW YORK, Respondent. (Supreme ion. Order affirmed, with $10 costs and dis- Court, Appellate Division, First Department. bursements.

| November 6, 1903.) Action by Fannie Whit

son, as administratrix, against the mayor, etc., WENDT et al., Respondents, V. NORTH- of New York. H. W. Unger, for appellant. ERN ELECTRICAL MFG. co., Appellant. C. Mellen, for respondent. I in a d a

4. 0Appellant. I C. Mellen, for respondent. No opinion. Judge

th De- ment affirmed, with costs. partment. October 27, 1903.) Action by William F. Wendt and another against the North WILEY, Respondent, v. McCABE, Appelern Electrical Manufacturing Company. No lant. (Supreme Court, Appellate Division, opinion. Judgment affirmed, with costs.

Fourth Department. November 24, 1903.) AC

I tion by Rosella Wiley against Hugh MeCabe. WERNER, Respondent, v. HEARST, Appel-No opinion. Judgment and order affirmed, with lant. (Supreme Court, Appellate Division, Sec-costs.

v.

WILLIAMS, Respondent, v. CLARK et al., WOLFMANN V. CITY OF NEW YORK. Appellants. (Supreme Court, Appellate Divi- (Supreme Court, Appellate Division, First Desion, First Department. October 23, 1903.) partment. October 23, 1903.) Action by Lena Action by Walter D. Williams against Mary E. Wolfmann against the city of New York. No Clark and others. A. G. McLaughlin, for ap- opinion. Motion granted, so far as to dismiss pellants. R. L. Harrison, for respondent. No appeal, with $10 costs. opinion. Order affirmed, with $10 costs and disbursements.

WOOD, Respondent, V. METROPOLITAN

ST. RY. CO., Appellant. (Supreme Court, ApWILLIAMSON, Respondent,

October O'CON- pellate Division, First Department. NOR, Appellant. (Supreme Court, Appellate

16, 1903.) Action by Henrietta C. Wood Division, First Department. November 20, against the Metropolitan Street Railway Com1903.) Action by Lorraine L. Williamson pany. No opinion. Motion denied. against Michael P. O'Connor, as executor.

C.
E. Thorn, for appellant. A. C. Cowan, for DECORATIVE ART CO., Appellant.

WORTHINGTON, Respondent, v. DUTCH

(Surespondent. No opinion. Judgment affirmed, with costs.

preme Court, Appellate Term. November 18, 1903.) Action by Paul B. Worthington against

the Dutch Decorative Art Company. From a WILSON, Appellant, v, DEXTER SUL- judgment for plaintiff, defendant appeals. ModPHITE PÚLP & PAPER CO., Respondent. | ified. Stern, Singer & Barr, for appellant. (Supreme Court, Appellate Division, Fourth W. H. Dodd, for respondent. Department. October 27, 1903.) Action by

PER CURIAM. The evidence established John Wilson against the Dexter Sulphite Pulp the plaintiff's acquiescence in the reduction of & Paper Company. No opinion. Motion for re- nis salary subsequent to January 10, 1903, and argument denied. Motion for leave to appeal the judgment should be reduced by $60, repreto the Court of Appeals granted. The form of senting 12 weeks' work at $5 per week; that the order to be settled before WILLIAMS, J., sum being the difference between the original on two days' notice.

rate of $25 and the reduced rate of $20. The

judgment should be modified by reducing it to WINDNAGLE, Respondent, v. HORTON, $130.87, and, as so modified, ailirmed, without Appellant. (Supreme Court, 'Appellate Divi- costs of this appeal. Judgment modified by sion, Fourth Department. October 27, 1903.) reducing amount of recovery to the sum of Action by John R. Windnagle against Ezra L. $130.87, and, as modified, affirmed, without Horton. No opinion. Judgment and order af- costs of this appeal to either party. firmed, with costs.

ZOLLER, Respondent, v. UTICA COLD WOHLGEMUTH. Appellant, V. HARLEM STORAGE & WAREHOUSE CO., Appellant. RIVER PARK AMUSEMENT CO., Respond-/ (Supreme Court, Appellate Division, Fourth ent. (Supreme Court, Appellate Division, First Jacob Zoller against the Utica Cold Storage &

Department. October 27, 1903.) Action by Department. November 6, 1903.) Albert Wohlgemuth, as administrator, against Warehouse Company. the Harlem River Park Amusement Company.

PER CURIAM. Judgment affirmed, with J. W. Russell, for appellant. W. y. Goldberg, costs. for respondent. No opinion. Order a tfirmed, WILLIAMS, J., dissents. STOVER, J., not with $10 costs and disbursements.

voting.

END OF CASES IN VOL. 84.

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