Fourth Department, January, 1906.

[Vol. 111. Marine National Bank of Buffalo, Respondent, v. Walter D. Greene, Appellant, Impleaded with Joseph H. Rebstock and Others.- Judgment affirmed, with costs. All concurred.

C. Frank Moore, Respondent, v. Delaware, Lackawanna and Western Railroad Company, Appellant.-Judgment and order affirmed, with costs. All concurred. Glenwood Swarthout, an Infant, by Albert C. Bickelhaupt, His Guardian ad Litem, Appellant, v. Nettie Culver and Others, Respondents, Impleaded with Others. Judgment affirmed, with costs. All concurred; Nash, J., not sitting. Thomas A. Donohue, Respondent, v. American Bridge Company of New York, Appellant. Judgment and order affirmed, with costs. All concurred, except Nash, J., who dissented.

John Hofman Company, Respondent, v. Edward Murphy, 2d, and Century Mercantile Company, Appellants.-Judgment and order affirmed, with costs. All concurred.

Alice Wilcox, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.- Judgment affirmed, with costs. All concurred, except Hiscock and Nash, JJ., who dissented.

Charles T. Blansett, Appellant, v. Walter B. Duffy, Respondent.- Judgment affirmed, with costs. All concurred.

Emma D Pitkin. as, etc., Appellant, v. New York Central and Hudson River Railroad Company, Respondent.- Motion for leave to appeal to the Court of Appeals granted.

Allen L. Wood, Appellant, v. Hyman Snider, Respondent.- Motion for leave to appeal to the Court of Appeals granted, the order and questions to be certified to be settled by and before Mr. Justice Spring on two days' notice.

Polly A. Hood, as Administratrix, etc., v. Lehigh Valley Railroad Company. Motion for leave to appeal to the Court of Appeals granted.

Harriet A. Linzy, Appellant, v. Mary E. Whitney and Others, Respondents. - Motion for order substituting the temporary administrator of Mary E. Whitney, one of the respondents now deceased, in the place and stead of said Mary E. Whitney, granted.

Philena Briggs, Respondent, v. Alice I. Weeks and Another, Appellants.— Motion to place cause on calendar of present term granted.

In the Matter of the Appraisal under the Act in Relation to Taxable Transfers of Property of the Property of John Pratt, Deceased. The Comptroller of the State of New York, Appellant; Hannah A. Pratt, as Executrix, etc., of John Pratt, Deceased, and Others, Respondents.- Order reversed as to the real property covered by the deed of deceased and described in Exhibit C, with costs to the appellant, and matter remitted to Surrogate's Court with direction to impose the tax on such property. All concurred; Hiscock, J., not sitting.

Addie A. Allen, Respondent, v. Albert H. Pierson, and Others, Appellants.Order affirmed, with ten dollars costs and disbursements. All concurred; Hiscock, J., not sitting.

United States Condensed Milk Company, Appellant, v. Max Smith and Jacob Smith, Respondents.-Order modified so as to provide that the place of trial shall be changed from Oneida county to Ulster county, and as so modified affirmed, without costs of this appeal to either party. All concurred, except McLennan, P. J., who voted for reversal and denial of motion; Hiscock, J., not sitting.

J. Howard Mark, Respondent, v. Albert Krippendorf and William Fritsch, Appellants.-Order affirmed, with ten dollars costs and disbursements. All concurred; Hiscock, J., not sitting.

Earl Burlingame, Respondent, v. James H. Dykeman, Appellant. — Order reversed, without costs, and motion granted changing the place of trial from Wyoming to Orange county. All concurred, except McLennan. P. J., who dissented; Hiscock, J., not sitting.

Elmer E. Roberts, Individually and as Administrator with the Will Annexed of William Roberts, Deceased, and Others, Respondents, v. William E. Gifford, Appellant, Impleaded with Fanny L. Roberts and Others. Orders affirmed, with ten dollars costs and disbursements. All concurred; Hiscock, J., not sitting.

Julia A. Deegan, as Administratrix, etc., of Thomas E. Deegan, Deceased, Appellant, v. Syracuse Lighting Company, Respondent.- Judgment affirmed, with costs. All concurred; Hiscock, J., not sitting.

App. Div.]

Fourth Department, January, 1906.

Samuel O. Stoddard, Respondent, v. Richard Rusaw, Appellant.-Judgments affirmed, with costs. All concurred; Hiscock, J., not sitting.

George F. Cameron, Appellant, v. Jane McBride and Charles H. Root, Respondents.-Judgment affirmed, with costs. All concurred.

In the Matter of the Final Settlement of the Accounts of Sarah M. Bailey, as, etc., Estate of Octavia R. Warner, Deceased.- Decree of Surrogate's Court affirmed, with costs, on the opinion of Simons, Surrogate. All concurred

Arthur V. Marlette and Others, Respondents, v. Lena Tumpowski and Others, Appellants.- Judgment affirmed, with costs. All concurred.

All

Isaac E. Baird, as Administrator, etc., of Garfield Baird, Deceased, Appellant, v. Erie Railroad Company, Respondent.-Judgment affirmed, with costs. concurred, except Spring, J., who dissented; Nash, J., not sitting.

George H. Chadeayne, Appellant, v. City of Buffalo, Respondent.- Judgment affirmed, with costs. All concurred; Kruse, J., not sitting.

Thomas R. Levis & Company, Respondent, v. Louis Ehrenberg, Appellant.Order affirmed, with ten dollars costs and disbursements. All concurred.

Helena O. Mead. Appellant, _v. New York Life Insurance Company, Respondent. (Action No. 1.)- Interlocutory judgment affirmed, with costs. All concurred.

Sarah J. Lewis, Appellant, v. Delaware, Lackawanna and Western Railroad Company, Respondent.― Judgment affirmed, with costs. All concurred.

In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo, Appellants, for the Appointment of Commissioners to Ascertain the Compensation to Be Paid to the Owners of and Parties Interested in Certain Lands, etc., Claimed to Be Owned by August Schneider and Others. (Proceeding No. 67.) William Simon, Respondent.— Order aflirmed, with costs. All concurred; Hiscock, J., not sitting.

Fred Myers, Appellant, v. The Town of Gates, Respondent.-Judgment and order affirmed, with costs. All concurred.

James H. Brown, Appellant, v. George H. Palmer, Respondent. Judg ments reversed, with costs, and new trial ordered in Municipal Court. The order herein to be settled by and before Mr. Justice Nash on two days' notice. Held, that the plaintiff having, in good faith and without knowledge of any mistake, furnished material and caused his employees to put a roof on defendant's barn in a manner satisfactory to and as directed by defendant, it is immaterial that the defendant did not know that such material was furnished by the plaintiff instead of another, and that his employees did the work. Having received the benefits resulting from the furnishing of the labor and materials, the defendant cannot avoid liability by asserting that he did not know the identity of the person who furnished and performed the same, and so, even although he had contracted with another party to do the same work and believed it was in fact being done by such other party. All concurred.

Lydell L. Wilson, Respondent, v. New York Milk Products Company, Appellant. Judgment affirmed, with costs. All concurred.

Oil Well Supply Company, Respondent, v. Phoenix Iron Works Company, Appellant.-Judgment affirmed, with costs. All concurred.

Harry S. Gail and Others, Respondents, v. Christian Fischer, Appellant, Impleaded with Charles Fischer.- Judgment affirmed, with costs. All

concurred.

In the Matter of the Final Accounting of Francis N. Fitch and Irving N. Tuttle, as Executors, etc., of Sophronia Norton, Deceased. Francis N. Fitch, Appellant; Jacob Van Wee and Others, Legatees, Respondents.--Order affirmed, with ten dollars costs and disbursements against the appellant personally. All concurred.

In the Matter of the Application of the City of Rochester, Respondent, to Acquire Lands of Lillian C. Davis, Appellant.- Order affirmed, with ten dollars costs and disbursements. All concurred.

Lydia L. Powell, a Creditor of the United States Mutual Accident Association of the City of New York, Suing in Her Own Behalf and for All Others Similarly Situated Who Shall Join with Plaintiff and Contribute to the Expenses Thereof, Respondent, v. John H. C. Nevins, Appellant. Impleaded with Charles B. Peet and Others.- Interlocutory judgment affirmed, with costs, and demurrer sustained, with costs, with leave to plead over upon payment of the costs of the demurrer and of this appeal. All concurred; Kruse, J., not sitting.

Third Department, January, 1906.

[Vol. 111. Clinton Snook, Respondent, v. Ida L. French, Appellant, Impleaded with Mansfield J. French and Others. Judgment aflirmed, with costs. All oncurred.

In the Matter of the Petition of William Smith, Respondent, for an Order Revoking and Canceling Liquor Tax Certificate No. 26,152, Issued to Stephen R. Ryan, Appellant. Order affirmed, with costs. All concurred.

Harvey C. Rice, Respondent, v. Town of Adams, Appellant.- Motion for reargument denied, with ten dollars costs, Motion for leave to appeal to Court of Appeals denied.

Harold E. Raymond, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.- Motion for reargument denied, with ten dollars costs. Motion for leave to appeal to Court of Appeals denied.

Arthur Worden, Respondent, v. Clarence D. Bentley, Appellant.- Motion to dismiss appeal granted, with ten dollars costs, unless appellant, within twenty days, files and serves printed papers on appeal, as provided by rule 41,* and pays respondent's attorney ten dollars costs of this motion, in which event the motion is denied.

Gilbert M. Vandevoort, as, etc., Respondent, v. Lincoln A. Mink, Appellant.— Motion to dismiss appeal denied, with ten dollars costs.

Charles Hagadorn, Appellant, v. Miles M. McNair and Another, Responderts. - Motion to amend remittitur denied, with ten dollars costs.

Edwin R. Mink, as, etc., Appellant, v. Fred L. Mink, Respondent.— Motion to dismiss appeal granted, with ten dollars costs.

Celina A. Green, as, etc., Respondent, v. Utica and Mohawk Valley Railway Company, Appellant.- Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs and disbursements.

The People of the State of New York ex rel. Board of Health of the Village of Friendship, Respondent, v. George W. Friez, Appellant. - Motion for leave to appeal to Court of Appeals granted and question to be reviewed certified to that

court.

David Winchell, Respondent, v. Town of Camillus, Appellant.- Motion for leave to appeal to the Court of Appeals granted.

In the Matter of the Appointment of a Board of Examiners to Examine into the Operation of the Jury System of the County of Erie, Created by Chapter 369 of the Laws of 1895.- Report of examining board received, approved, filed and a certified copy therefor ordered transmitted to the commissioner of jurors for the county of Erie.

Alice Wilcox, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.- Motion for leave to appeal to the Court of Appeals granted.

THIRD DEPARTMENT, JANUARY, 1906.

Thomas II. Appleby and Ruby A. Appleby, Respondents, v. Chester L. Dal rymple, Appellant.— Judgment and order unanimously affirmed, with costs. No opinion.

Watson B. Berry, Respondent, v. David A. French, Appellant.- Judgment and orders unanimously aflirmed, with costs. No opinion.

Jerden Bronk, Respondent, v. The Binghamton Railroad Company, Appel· lant. Judgment and order aflirmed, with costs. No opinion. All concurred, except Parker, P. J., dissenting.

The Century Mercantile Company, Appellant, v. Matthew A. Heeran, Late Sheriff of the County of Rensselaer, Respondent. (Action No. 1.)- Interlocutory judgment affirmed, with costs, with usual leave to amend on payment of costs. No opinion. All concurred.

Elizabeth Cook and Others, Respondents, v. Addison C. Griswold, Individually and as Executor, etc., of Susan Daglish, Deceased, and Others, Appellants.Judgment affirmed, without costs. No opinion. All concurred, except Chase, J., not voting.

*General Rules of Practice.- [REP.

App. Div.]

Third Department, January, 1906.

John K. Cullin, Appellant, v. William J. Alvord, as Sheriff, etc., of Columbia County, Respondent, Impleaded with Matthew R. Ryder.- Judgment unanimously affirmed, with costs. No opinion.

Marion Daley, an Infant, etc., by Joseph M. Daley, Her Guardian ad Litem, Respondent, v. Dennis Ratigan, Appellant.-Judgment and order unanimously affirmed, with costs. No opinion.

Chester H. Gregory, Respondent, v. Elmira Water, Light and Railroad Company, Appellant.- Motion granted.

Hinckel Brewery Company, Plaintiff, v. Christopher Newman, Sometimes Called Chris. Newman, Respondent. (No. 1.)- Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred, except Chester, J., dissenting.

Hinckel Brewery Company, Plaintiff, v. Christopher Newman, Sometimes Called Chris. Newman, Respondent. (No. 2.) — Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred, except Chester, J., dissenting.

David H. Ingalls, Respondent, v. Albertus D. Perkins and William T. Perkins, Appellants.- Judgment and order unanimously affirmed, with costs. No opinion.

Hiram Kells, Respondent, v. J. E. Davis Manufacturing Company, Appellant. -Judgment and order unanimously affirmed, with costs. No opinion.

John Landin, Respondent, v. Cunard Steamship Company, Limited, Appellant. -Judgment unanimously affirmed, with costs. No opinion.

Irving Moyer, Appellant, v. The Village of Nelliston, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred. In the Matter of the Application of Thomas H. Dwyer, Appellant, for a Writ of Mandamus against William H. Gearin, as Comptroller of the City of Troy, Respondent. Order affirmed, with costs. No opinion. All concurred, except Kellogg, J., dissenting.

Patrick McGuire, Appellant, v. Union Mutual Life Insurance Company, Respondent.-Order modified so that instead of amending the notice of appeal it directs an acceptance of the notice of appeal served June 22, 1905, and as so modified affirmed, without costs. No opinion. All concurred.

In the Matter of the Claim of Elijah Shoen, Respondent, v. E. J. Scott, as Administrator with the Will Annexed of Archibald Scott, Deceased, Appellant.— Judgment unanimously affirmed. No opinion.

Elizabeth McCall, Appellant, v. Supreme Council American Legion of Honor, Respondent.-Judgment reversed and new trial granted, with costs to appellant to abide event, upon the authority of Butler v. Supreme Council (105 App. Div. 164). No opinion. All concurred.

Irving Moyer. Respondent, v. The Village of Nelliston, Appellant. - Motion to dismiss appeal denied, without costs.

The People of the State of New York ex rel. Fahnestock Transmitter Company, Relator, v. Otto Kelsey, as Comptroller of the State of New York, Respondent.- Determination of the Comptroller confirmed, with fifty dollars costs and disbursements. No opinion. All concurred.

George B. Sweet, Respondent, v. Joseph Howell, as Administrator, etc., of Sophia Howell, Deceased, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion.

William G. Strait and Others, Respondents, v. Walter E. Lindsay, Appellant, and Others Who, with Said Walter E. Lindsay, Comprise the Firm of Walter E. Lindsay & Company. - Judgment and order unanimously affirmed, with costs. No opinion.

William R. Slocum, Respondent, v. Byron J. Town and Cassius B. Thomas, Appellants Judgment and order unanimously affirmed, with costs. No opinion; Kellogg, J., not sitting.

Frank Walrod. Appellant, v. Henry Noel, as Treasurer of Inland Seamen's Union, Respondent. Judgment unanimously affirmed, with costs. No opinion. Matthias II. Arnot, as Trustee, v. Union Salt Company.- Motion for reargument denied.

Lordville and Equinunk Bridge Company v. Charles De Lackner.-Motion granted, with ten dollars costs, unless the appellant, within thirty days after service of a copy of this order, file and serve the necessary papers on appeal and

First Department, January, 1906.

[Vol. 111.

pay ten dollars for the default and ten dollars costs of motion, in which case motion denied, without costs.

Patrick Monahan v. Schenectady Railway Company.- Motion denied.
Mary E. Mack v. Thomas J. Hilsinger.- Motion granted.

John II. Rourke and Others v. The Elk Drug Company and Others.- Motion denied.

Albert A. Vaughn v. Glens Falls Portland Cement Company.

Motion denied. In the Matter of the Application of Wilton Avedis Hall for Admission to Practice as an Attorney and Counselor at Law.-Motion granted.

In the Matter of the Application of John H. Mack for Admission to Practice as an Attorney and Counselor at Law in the State of New York.- Application granted.

Matthias H. Arnot, as Trustee, Respondent, v. Union Salt Company, Appellant. Decision amended so as to read as follows: Judgment affirmed, with ccsts. Opinion by Smith, J. (Reported in 109 App. Div. 433, 440.)

The People of the State of New York ex rel. William Bidwell, Respondent, v. Sebastian W. Pitts, as Sheriff of Albany County, New York, and Custodian of the Albany County Penitentiary, Appellant.- Order reversed, writ of habeas corpus quashed, and relator remanded to the custody of the sheriff of Albany county, as custodian of the penitentiary, to serve balance of his term, on the authority of People ex rel. Bidwell v. Pitts (ante, p. 319). All concurred.

Charles Vroman, Respondent, v. Thomas Maher and Jeremiah Maher, Appellants. Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred.

FIRST DEPARTMENT, JANUARY, 1906.

John W. Sterling, as an Executor, etc., of Edwin S. Chapin, Deceased, Appellant, Respondent, v. Albert K. Chapin, Individually and as an Executor, etc., of Edwin S. Chapin, Deceased, Respondent, Appellant.- Cross-appeals from a judgment entered on the report of a referee and from an order granting costs.

PER CURIAM: The order appealed from should be affirmed. without costs. And upon the authority of Sterling v. Chapin (102 App. Div. 589) the judgment appealed from should also be affirmed, without costs. Present - O'Brien, P. J., Ingraham, Laughlin, Clarke and Houghton, JJ.; Laughlin, J., dissented on his opinion on the previous appeal. Order affirmed, without costs. Judgment aflirmed, without costs.

Achille J. Oishei, Respondent, v. Metropolitan Street Railway Company and Annie Gallo, Appellants.

Attorney and client — attorney's lien on settlement by client

no lien for costs. Appeal from a judgment entered upon a decision after trial at Special Term. MCLAUGHLIN, J.: The defendant Annie Gallo, wife of Domenico Gallo, one of the defendants in two actions brought by this plaintiff against him and the Metropolitan Street Railway Company, brought an action to recover damages for personal injuries sustained by her through the negligence of the railway company. Prior to the commencement of the action she entered into a written agreement with her attorney, which provided, among other things, as follows: "I do hereby agree, stipulate and contract with my said attorney to pay him one-half of any settlement or recovery had in said action, and he is, in addition thereto, to receive all costs and interests recovered or to which he may be entitled. And I further agree with my said attorney not to make any settlement unless he is present and receives his share in accordance with this agreement." That action was settled, without the knowledge or consent of the plaintiff's attorney, for $200, and a general release given. After the settlement the attorney (this plaintiff) brought this action against the railway company and Annie Gallo, to enforce a lien which he asserted he had upon the proceeds of the settlement. The action was tried without a jury, and in the decision filed judgment was entered adjudging and decreeing that the plaintiff had a lien upon one-half of the consideration for the settlement, viz., $100, and in addition thereto the costs in the negligence action to the time of the settlement, viz., $95.50, making in all, $195.50. Each defendant appeals from this judgment. For the reasons stated in Oishei v. Metropolitan