PEOPLE ex rel. JONES, Respondent, v. | 1899.) In the matter of the application of True DIEHL et al., Appellants. (Supreme Court, Ap- P. Pierce for admission to the bar. No opinion. pellate Division, Fourth Department. November Application granted. 28, 1899.) Proceedings by the people, on the relation of George T. Jones, against Conrad Diehl and others, constituting the board of police of the city of Buffalo, N. Y. PER CURIAM. Order reversed, with $10 costs and disbursements, and motion denied. Held, there is no statutory provision requiring an official or board of officers to verify a return to a certiorari. Presumptively their return is an official act, and therefore the certificate is sufficient. PEOPLE ex rel. KINNEY, Appellant, v. KING, Respondent. (Supreme Court, Appellate Division, Fourth Department. December 6, 1899.) Proceedings by the people, on the relation of Catharine Kinney, against Thomas S. King, police justice of the city of Buffalo. No opinion. Order affirmed, on the merits, without costs to either party. PEOPLE ex rel. LAMBERT, Appellant, v. BOARD OF TRUSTEES OF VILLAGE OF ST. JOHNSVILLE et al., Respondents. (Supreme Court, Appellate Division, Third Department. December 6, 1899.) Proceedings by the people, on the relation of Charles W. Lambert, against the board of trustees of the village of St. Johnsville, N. Y., and others. No opinion. Judgment and order aflirmed, with costs. PEOPLE ex rel. SACHS, Appellant, v. YORK et al.. Respondents. (Supreme Court, Appellate Division, First Department. December 8, 1899.) Proceedings by the people, on the relation of John J. Sachs, against Bernard J. York and others. A. G. Cropsey, for appellant. T. Farley, for respondents. No opinion. Writ dismissed, with costs. PEOPLE ex rel. WARD v. DRAKE et al. (Supreme Court, Appellate Division. Fourth Department. November 22, 1899.) Proceedings by the people, on the relation of Francis G. Ward, against Marcus M. Drake and others. No opinion. Motion granted, and amendment ordered with the clerk. See 60 N. Y. Supp. 309. PEOPLE ex rel. WEISE v. SCANNELL. (Supreme Court, Appellate Division, First Department. November 17, 1899.) Proceedings by the people, on the relation of William H. Weise. against John J. Scannell, fire commissioner. J. I. Green, for appellant. T. Farley, for respondent. No opinion. Writ quashed, and proceedings confirmed, with costs. PETRIE. Respondent, v. NATIONAL BANK & LOAN CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. December 6, 1899.) Action by Moses Petrie against the National Bank & Loan Company. No opinion. Judgment and order affirmed, with costs. In re PIERCE. (Supreme Court, Appellate Division, Second Department. November 28, PIERCY, Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, Appellate Term. December 28, 1899.) Action by Albert J. Piercy against the Metropolitan StreetRailway Company. From a judgment for plaintiff, defendant appeals. Reargument ordered. Henry A. Robinson, for appellant. Oliver C. Semple, for respondent. PER CURIAM. Reargument ordered. PIKE, Respondent, v. VILLAGE OF FT. EDWARD, Appellant. (Supreme Court, Appellate Division, Third Department. November 21, 1899.) Action by Erastus Pike against the village of Ft. Edward. No opinion. Judgment and order affirmed, with costs. PLACE, Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Supreme Court, Appellate Division, Third Department. November 21, 1899.) Action by Gertrude E. Place against the New York Central & Hudson River Railroad Company. No opinion. Judgment afAll concur, except MERfirmed, with costs. WIN, J., dissenting, and PUTNAM, J., not act ing. PRINCE v. SOCIALISTIC CO-OP. PUB. CO. (City Court of New York, General Term. November 16, 1899.) Action by Samuel Prince against the Socialistic Co-operative Publishing Company. From a judgment for plaintiff, and from an order denying a motion for new trial, defendant appeals. Affirmed. Simon Sultan, for appellant. Morris Cukor, for respondent. FITZSIMONS, C. J. The action is for libel in publishing in the defendant's newspaper an article reflecting upon the plaintiff in the line of his calling, and which is libelous per se. Davey v. Davey, 22 Misc. Rep. 668, 50 N. Y. Supp. 161. The defendant admitted the publication, and pleaded facts in mitigation of damages. Upon the trial, the jury awarded the plaintiff $500. We find no error in the rulings, and, as the damages were largely in the discre tion of the jury (Holmes v. Jones, 147 N. Y. 59, 41 N. E. 409), and the amount awarded is not excessive, the judgment and order appealed from must be affirmed, with costs. McCARTHY, J., concurs. and 95 New York State Reporter. that the commissioners appointed by the order | of the county court did not have jurisdiction of the subject-matter, because of the failure of the petitioner to allege or state facts in his application to the highway commissioner showing that he was assessable for highway labor in the town in which it is proposed to lay out the new highway; second, because the petition to the county court fails to show that the petitioner was assessable for highway labor in said town, and that the land to be taken for the proposed new highway was not dedicated to the town for highway purposes, or released by the owner or owners as provided in the act; third, because the notice served upon the appellant fails properly to describe the proposed new road, in accordance with the requirements of the statute; fourth, that the commissioners committed error in the exclusion and admission of evidence relating to the damages which would be sustained by the appellant by reason of the construction of the proposed new road. See 49 N. Y. Supp. 398. Onderdonk, as administrator, etc., of Dorothy M. Onderdonk, deceased, etc. No opinion. Order modified, so as to impose, as a condition for granting a new trial, that the defendant, within 20 days, pay the plaintiff the trial fee and disbursements of the trial, to be taxed, and, as modified, affirmed, without costs of this appeal to either party. spondents. (Supreme Court, Appellate Term. FREEDMAN, P. J. This case presents only a sharp conflict of testimony, and in determining such conflict the trial judge found in closed by the record to warrant a reversal of favor of the defendants. There is nothing disthe judgment. Judgment affirmed, with costs. All concur. RICE, Appellant, v. MILLER, Respondent. (Supreme Court, Appellate Division, Fourth Department. June, 1899.) Action by Herbert P. Rice against Charles F. Miller. No opinion. Judgment affirmed, with costs. RICHARDSON, Respondent, v. GREAT EASTERN CASUALTY & INDEMNITY CO., Appellant. (Supreme Court, Appellate Division, Third Department. December 6, 1899.) Action by Katherine E. Richardson against the Great Eastern Casualty & Indemnity Company. No opinion. Judgment and order atfirmed, with costs. RIFENBURGH, Respondent, v. CARROLL, Appellant. (Supreme Court, Appellate Division, Third Department. December 12, 1899.) Action by Allen Rifenburgh against Thomas Carroll. No opinion. Order affirmed, with $10 costs and disbursements. ROBY, Respondent, v. PHYFE et al., Appellants. (Supreme Court, Appellate Division, Second Department. December 19. 1899.) Action by Augusta A. Roby against Alvah E. Phyfe and others. No opinion. Order affirmed, without costs, on condition that, within 20 days. plaintiff cause to be procured a release of the appellant Phyfe from liability on the judgment for deficiency, and also on the $1,000 bond and mortgage. ROCHESTER BILL-POSTING CO.. Respondent. v. CITY OF ROCHESTER. Appellant. (Supreme Court, Appellate Division, Fourth Department. June, 1899.) Action by the Rochester Bill-Posting Company against the city of Rochester. PER CURIAM. Upon the facts found, and the stipulation at the trial, the plaintiff's complaint should have been dismissed, with costs to the plaintiff; and the judgment is, therefore, modified accordingly, and, as thus modified, affirmed, without costs of this appeal to either party. PER CURIAM. Judgment and order appealed from affirmed, with costs. ROMAN CATHOLIC CHURCH OF ST. for plaintiff, entered on a verdict, and from an JAMES v. DALTON. (Supreme Court, Ap-order denying a new trial, defendant appeals. pellate Division, First Department. Novem- Affirmed. Henry F. Lippold, for appellant. ber 17, 1899.) Action by the Roman Catholic Roesch & Steiner, for respondent. Church of St. James against William Dalton, commissioner, etc. C. E. Miller, for appellant. J. M. Ward, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. In re RUPP et al. (Supreme Court, Appellate Division, Fourth Department. November 22, 1899.) In the matter of the application for the removal of Charles A. Rupp and John H. Cooper from the office of police commissioners of the board of police of the department of police of the city of Buffalo, N. Y. No opinion. Order affirmed, without costs, on the opinion of LAUGHLIN, J. 59 N. Y. Supp. 997. In re SCOTT et al. (Supreme Court, Appellate Division, Second Department. November 28, 1899.) In the matter of the petition of Richard Scott and others. PER CURIAM. Application to resettle order denied. Respondent adjudged guilty of contempt in failing to comply with the terms of the order made by this court on the 10th day of October, 1899 (60 N. Y. Supp. 1147), and for such contempt fined the amount required to be paid by said order. The entry of the order on this decision will be stayed for the term of 10 days contempt by complying with the terms of the to enable the respondent to purge himself of original order. SARGENT, Respondent, v. BRADLEY et SEXSMITH v. MILLS._(Supreme Court, Apal., Appellants. (Supreme Court, Appellate Di-pellate Division, Fourth Department. Novemvision, Third Department. November 21, 1899.) ber 22, 1899.) Action by Thomas Sexsmith Action by Amos L. Sargent against Margaret against Henry H. Mills. No opinion. Motion to H. Bradley and others. No opinion. Judg- dismiss appeal granted, with $10 costs. ment affirmed, with costs. SAWYER, Respondent, v. ROSSA, Appellant. (Supreme Court, Appellate Division, Second Department. November 21, 1899.) Action by Joseph T. Sawyer against Carlo Rossa. No opinion. Judgment of the municipal court affirmed, with costs. SCHAAD, Respondent. v. ACKERSON et al., Appellants. (Supreme Court, Appellate Division. Fourth Department. November 22, 1899.) Action by Henry J. Schaad against Emory B. Ackerson and another. No opinion. Judgment and order affirmed, with costs. SCHWARZ, Respondent, V. SUPREME LODGE KNIGHTS AND LADIES OF HONOR, Appellant. (City Court of New York, General Term. December 30, 1899.) Action by Magdalena Schwarz against the Supreme Lodge Knights and Ladies of Honor. From a judgment Appellants. (Supreme Court. Appellate Division, SHAMP, Respondent, v. HUNTER et al., Fourth Department. November 28, 1899.) Action by George W. Shamp against James B. Hunter and another. No opinion. Judgment and order affirmed, with costs. SHERWOOD et al., Appellants, v. BEEKMAN et al.. Respondents. (Supreme Court, Appellate Division, Fourth Department. November 28, 1899.) and another against John G. Beekman and othAction by Thomas B. Sherwood ers. No opinion. Judgment and order affirmed. with costs. and 95 New York State Reporter. SILO, Respondent, v. LINDE, Appellant. (City Court of New York, General Term. December 27, 1899.) Action by James P. Silo against Herman Linde. From an order denying a motion to resettle an order, defendant appeals. Affirmed. Treadwell & Limburger, for appellant. Oppenheim & Severance, for respondent. O'DWYER, J. On the hearing of the motion for a resettlement of the order as entered, and after having his attention directly called to the alleged errors in the order as entered, the justice determined that the order as entered correctly stated the papers used upon the motion and the decision of the court thereon; and with that disposition by the justice presiding we are not disposed to interfere. Order appealed from affirmed, with $10 costs and disbursements. All concur. SINAY v. HUDSON & ATHENS FERRY CO., Limited. (Supreme Court, Appellate Division, Third Department. December 12, 1899.) Action by Emily Sinay against the Hudson & Athens Ferry Company, Limited. No opinion. Motion for leave to go to the court of appeals denied. See 60 N. Y. Supp. 1148. SINGER. Respondent, v. METROPOLITAN ST. RY. CO., Appellant. (Supreme Court, Appellate Term. December 28, 1899.) Action by George Singer against the Metropolitan StreetRailway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Henry A. Robinson, for appellant. Hymes, Woytisek & Schaap, for respondent. MacLEAN, J. The judgment herein is not to be reversed, as contended by the appellant, upon the doctrine of Pierce v. Railway Co., 21 App. Div. 427. 47 N. Y. Supp. 540, for there is no such preponderance of evidence in favor of the defendant in this case as there was in that so cited as precedent. Judgment affirmed, with costs. FREEDMAN, P. J., concurs. LEVENTRITT, J., takes no part. SIPPEL, Appellant. v. STANLEY et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. December 29, 1899.) Action by Mary Sippel against Cornelia M. Stanley and others. No opinion. Judgment affirmed, with costs. SMITH v. HOFF et al. PERKINS 5. SAME. CAMPBELL v. SAME. (Supreme Court, Appellate Division, Fourth Department. November 22. 1899.) Actions by Henry E. Smith, by Gilman H. Perkins, and by Frank Campbell against Samuel Hoff and others. PER CURIAM. Motion to dismiss appeals in above-entitled cases granted, with $10 costs in one case, unless, within 20 days, the defendant serve copy of his proposed case in action No. 1 upon the plaintiff's attorney, and pay $10 costs to open his default, and $10 costs of the motion in case No. 1, in which event the motions are denied. CO., Respondent. (Supreme Court, Appellate SMITH, Appellant, v. LEHIGH VAL. R. Division, Fourth Department. November 22, 1899.) Action by Eunice A. Smith, as administratrix, etc., against the Lehigh Valley Railwith costs. All concur, except ADAMS, J., not road Company. No opinion. Order affirmed, voting. SMITH, Respondent, v. SMITH et al., Appellants (two cases). (Supreme Court. Appellate Division, Third Department. December 12, 1899.) Actions by Esther J. Smith, as administratrix, etc., against Arthur J. Smith and another, as executors, etc. No opinion. Order affirmed, with $10 costs and disbursements. SOCIALISTIC CO-OP. PUB. CO. v. KUHN et al. (Supreme Court, Appellate Division, First Department. November 17, 1899.). Action by the Socialistic Co-operative Publishing Company against Henry Kuhn and others. No opinion. Motion denied, with $10 costs. SPELLMAN, Respondent, V. MUEHLFELD, Appellant. (Supreme Court, Appellate Division, First Department. December 8, 1899.) Action by John H. Spellman against F. Muehlfeld. II. J. Furlong, for appellant. J. Delahunty, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. SPENCER, Respondent, v. ALLEN et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. December 29, 1899.) Action by James D. Spencer against Theodore D. Allen and others. No opinion. Judgment affirmed. with costs. All concur, except ADAMS, J., not voting. SPROULL v. STAR CO. (Supreme Court, SLOAN et al., Appellants, v. SALAMANCA Appellate Division, First Department. DecemNAT. BANK, Respondent. (Supreme Court. Ap-ber 22, 1899.) Action by Angeline M. Sproull pellate Division, Fourth Department. November against the Star Company. No opinion. Mo28. 1899.) Action by Samuel Sloan and others tion granted, with $10 costs. against the Salamanca National Bank, impleaded. No opinion. Judgment affirmed, with costs. All concur, except SMITH, J., not voting. STADIE, Appellant, v. McKAY et al., Respondents. (Supreme Court, Appellate Term. December 28, 1899.) Action by Max Stadie against John W. McKay and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed. Headley M. Greene, for appellant. Geo. Harrison McAdam, for respondents. PER CURIAM. Judgment affirmed, with costs to the respondents. C. STAPLETON, Respondent, v. METROPOL- | Company. T. P. Wickes, for annellant. ITAN ST. RY CO., Appellant. (Supreme F. Burns, for respondent. No opinion. Order Court, Appellate Division, First Department. affirmed, with $10 costs and disbursements. November 17, 1899.) Action by Joseph A. Stapleton against the Metropolitan Street-Railway Company. No opinion. Motion denied. SULLIVAN, Appellant, v. TRADERS' INS. CO. OF CHICAGO, Respondent. (Supreme Court, Appellate Division, Fourth Department. November 28, 1899.) Action by Julia Sullivan against the Traders' Insurance Company of Chicago. No opinion. Judgment affirmed, with costs. TARRYTOWN, W. P. & M. RY. CO., ReSTILSON, Appellant, v. STILSON, Respond-spondent, v. NEW YORK, W. & C. TRACent. (Supreme Court, Appellate Division, TION CO., Appellant. (Supreme Court, ApFourth Department. December 6, 1899.) Action by Henry H. Stilson against Emily Stil- pellate Division, Second Department. December 19. 1899.) Action by the Tarrytown, White Plains & Mamaroneck Railway Company against the New York, Westchester & Connecticut Traction Company. son. PER CURIAM. Judgment reversed, and the order of reference vacated, and a new trial ordered before a jury, upon issues to be framed by the special term, to which court the case is remitted. Costs of this appeal are not allowed to either party. Held, that the exceptions to the admission of evidence present prejudicial error. STOWASSER, Respondent. v. SHERMAN OUTFITTING CO., Appellant. (Supreme Court, Appellate Division, First Department. December 15, 1899.) Action by Gussie Stowasser against the Sherman Outfitting Company. S. Greenbaum, for appellant. O. Horwitz, for respondent. No opinion. Judgment and order affirmed, with costs. PER CURIAM. We have recently decided, in the cases of Dusenberry v. This Defendant, 61 N. Y. Supp. 420, and Village of Bronxville v. Same, Id. 719, that the duty lies on the railroad company of showing affirmatively that it has the necessary consents of property owners to constitute a valid franchise for the construction of its railroad in the street. The plaintiff in this case entirely fails to sustain that burden, and, while it is true the defendant may have no right in the street, as on these papers the plaintiff appears equally without right, the latter is in no condition to ask for affirmative relief in its behalf. For this reason the order appealed from should be reversed, and injunction dissolved, with $10 costs and disbursements to abide the event of the action. SULLIVAN, Appellant. v. METROPOLITAN ST. RY. CO.. Respondent. (Supreme Court, Appellate Division, First Department. December 8, 1899.) Action by Timothy J. Sul- TEMPLETON, Respondent, v. BROWN, Aplivan against the Metropolitan Street-Railway | pellant. (Supreme Court, Appellate Division, |