Second Department, January, 1906.

[Vol. 111. leased premises, and, therefore, there was a question for determination by the trial court. Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

J. Noyes Shaughnessy, Respondent, v. Arthur D. Weekes, Appellant.— Judgment and order unanimously affirmed, with costs. No opinion. PresentHirschberg, P. J., Woodward, Jenks, Rich and Miller, JJ.

Robert Wulff, an Infant, by Adolph Wulff, His Guardian ad Litem, Respondent, v. Fifth Avenue Coach Company, Appellant.- Order affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Adolph Wulff, Respondent, v. Fifth Avenue Coach Company. Appellant.Order affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Franklin B. Lord, Respondent, v. The Equitable Life Assurance Society of the United States, Appellant, and Alfonso de Navarro and Others, Respondents.Motion for leave to appeal to the Court of Appeals granted, and question certified. Present— Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

Louise Johnson, Respondent, v. The City of New York, The Automobile Club of America, Albert R. Shattuck and Others, Appellants.- Motion for leave to appeal to the Court of Appeals granted. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

William P. Hannan, Respondent, v. Kate B. Boldin, Appellant.- Judgment affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ., concurred.

Bertrand Kettell, Appellant, v. Ida F. Kettell, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred.

James V. Lawrence, Sole Surviving Member of the Firm of Lawrence Broth, ers, Appellant, v. William C. G. Wilson, Respondent.-- Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward Gaynor, Rich and Miller, JJ., concurred.

The New York Central and Hudson River Railroad Company, Respondent, v. Catharine M. Lally and Others, Appellants.-- Order reversed, with ten dollars costs and disbursements, and motion for stay of proceedings granted, with costs, but without prejudice to the right of the respondent to move for a vacation if the equity action brought by the appellants is not prosecuted with due diligence. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., . concurred.

William B. Russlend, Appellant, v. Edwin A. Bridge and John W. Souter, Respondents. Order affirmed on argument, with ten dollars costs and disbursements. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred. Mary C. Ball, Plaintiff, v. Flexman E. Ball, Defendant.- Motion to open default denied. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

David Berkowitz, Appellant, v. Chicago, Milwaukee and St. Paul Railway Company and the New York Central and Hudson River Railroad Company, Respondents.- Motion for reargument as to the respondent the New York Central and Hudson River Railroad Company granted, and case set down for Tuesday, February 27, 1906. Present-Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ.

Daniel R. Chichester, Respondent, v. Winton Motor Carriage Company, Appellant. Motion to dismiss appeal denied. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

Frank E. Coles, as Executor, etc., Respondent, v. Charles G. A. Graburn, Appellant.- Motion to open default denied.' Present Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ.

Margaret E. Hanlon, Respondent, v. Central Railroad Company of New Jersey, Appellant.- Motion for leave to appeal to the Court of Appeals denied. Present Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ.

Willett Hicks, Respondent, v. Loring J. Eggleston and Others, Appellants.— Order resettled and signed as presented by the plaintiff. Present - Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

In the Matter of the Application of the Brooklyn Bar Association to Punish Benjamin F. Chadscy, an Attorney.- Ordered that he be removed from the

App. Div.]

Second Department, January, 1906.

office of attorney and counselor at law, and his name stricken from the roll. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

In the Matter of the Application of Frank L. Froment and Another, etc.Order resettled, so as to grant costs of the appeal as well as costs on the dismissal of the proceeding. Present - Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ

In the Matter of the Application of the Board of Rapid Transit Railroad Commissioners for the City of New York for the Appointment of Three Commissioners to Determine and Report Whether a Rapid Transit Railway or Railways for the Conveyance and Transportation of Persons and Property, as Determined by the Board, Ought to Be Constructed and Operated. Thirtyfourth Street Route in the County of Queens.- Order designating newspapers for publication of notice signed. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

In the Matter of the Application for the Removal from Office of William W. Whyard, a Justice of the Peace of the Town of Orangetown, Rockland County, New York. Motion to dismiss denied, and proceedings referred to Hon. John J. Beattie, Warwick, N. Y., to hear and report, with his opinion. PresentHirschberg, P. J., Woodward, Jenks, Rich and Miller, JJ.

Edward A. Gott, Respondent, v. Brooklyn Heights Railroad Company, Appellant.- Motion to resettle order denied. Present — Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

Minnie Guth, Respondent, v. Joseph Barth, Appellant.-Motion for a stay denied. Present - Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ. New York Mortgage and Security Company, Plaintiff, v. Concourse Park Hotel Company, Defendant.- Motion denied. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

Ahi Peace, Respondent, v. William McAdoo, as Police Commissioner, etc., Appellant. The provision of the charter upon which the determination of this controversy depended having been amended since the action was brought,* we do not think it is proper to grant leave to appeal to the Court of Appeals. The motion is, therefore, denied. Present - Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ.

Thomas E. Pearsall and Others, Respondents, v. Thomas H. Stewart and Ella F. Stewart, Appellants.-- Motion for leave to amend printed case on appeal granted. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ. The People of the State of New York ex rel. Thomas Archer, Relator, Respondent, v. William McAdoo, as Police Commissioner, etc., Appellant.- Motion to resettle order granted. Present — Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ.

Samuel Tierstein, Respondent, v. Max Glassberg, Appellant.- Motion denied. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

The Town of Oyster Bay v. William H. Jacob, Impleaded, etc., and Others.— Motion for leave to appeal to the Court of Appeals denied. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

George M. Whitehouse, Respondent, v. Staten Island Water Supply Company, Appellant.- Motion for leave to appeal to the Court of Appeals denied. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

Julienne C. Williams, Respondent, v. Metropolitan Life Insurance Company, Appellant.- Motion for reargument denied. Present Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ.

Samuel Barnett and Florence Barnett, Respondents, v. The J. B. Sparrow Theatrical and Amusement Company, Limited. Appellant.-- Judgment of the Municipal Court affirmed, with costs. No opinion. Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ., concurred.

Mathilda A. Bengston, Respondent, v. Daniel Swanston, Appellant.- Judg ment of the Municipal Court modified by striking out the provision allowing the ten dollars costs, and as modified affirmed, without costs. No opinion. Jenks, Hooker, Rich and Miller, JJ., concurred.

Philip Brandmeier, Respondent, v. Demuth Glass Manufacturing Company, Impleaded, etc., Appellant.- Judgment of the Municipal Court reversed and

*See Peace v. McAdoo (110 App. Div. 13); Laws of 1905, chap. 621, amdg. Greater N. Y. charter (Laws of 1901, chap. 466), § 315.— [REP.

Second Department, January, 1906.

[Vol. 111 new trial ordered, costs to abide the event, on the ground that no proof of notice of dishonor was given, as required by statute.* No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

The Bank of Port Jefferson, Respondent, v. Mary A. Darling, Appellant.Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, JJ., concurred.

Howard J. M. Cardeza and Others, Composing the Copartnership of Cardeza, Gilliams & Company, Appellants, v. William E. S. Griswold, as Trustee in Bankruptcy of John Osborn's Sons & Co., Respondent, Impleaded with Others. Judgment, so far as appealed from, affirmed, with costs. No opinion. Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ., concurred.

James M. Connelly, Respondent v. I. Henry Harris, Appellant.- Judgment of the Municipal Court reversed on the facts and new trial ordered, costs to abide the event. No opinion. Jenks, Hooker, Gaynor and Rich, JJ., concurred; Miller J., dissented.

Dirce Cornwell, by Frank W. Cornwell, Her Guardian ad Litem, Respondent, v. The East Rockaway Fire Department, Appellant.- The motion to set aside the nominal verdict, made on behalf of the defendant, was an inadvertence and unauthorized. The order is reversed, with ten dollars costs and disbursements, and the motion granted, without costs, this without prejudice to the right of the plaintiff to move for a new trial upon the minutes, if so advised. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller. JJ., concurred.

Esther E. Daly, Respondent, v. Frederick W. Kister, Appellant. - Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Gregorio Di Lorenzo, Respondent, v. Johanna Di Lorenzo. Appellant.- Order affirmed, without costs, upon the opinion of Mr. Justice Wilmot M. Smith at Special Term. Jenks, Hooker. Gaynor, Rich and Miller, JJ., concurred.

John_B. Driscoll, Appellant, v. New York and Queens County Railway Company, Respondent.- Judgment and order of the County Court of Queens County unanimously affirmed, with costs. No opinion. Present Jenks, Hooker, Gaynor, Rich and Miller, JJ.

Thomas Finucan, Appellant, v. Thomas T. -Judgment and order affirmed, with costs. nor, Rich and Miller, JJ., concurred.

Ramsden and Others, Respondents.
No opinion. Jenks, Hooker, Gay.

First National Bank of the City of Brooklyn, Respondent, v. Helen M. Gridley, Appellant, Impleaded with Charles M. Coburn and Others. Reargument ordered, and case set down for Tuesday, March 13, 1906.

Robert Gwynne, Jr., Appellant, v. Altonwood Park Company of New York, Respondent.-Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg, P. J., Woodward, Jenks and Rich, JJ., concurred.

E. Alexander Hand, Respondent, v. George W. Egbert, Appellant. - Judg ment and order of the County Court of Kings county affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Emil A. Hodes, Respondent, v. The City of New York, Appellant. — Jud gment of the Municipal Court unanimously affirmed, with costs. No opinion. Present Hirschberg, P. J., Woodward, Jenks, Hooker and Gaynor, JJ.

Elizabeth Hobby, Individually and as Executrix, etc., of Benjamin F. Hobby, Deceased, Respondent, v. Clinton D. Burdick, Appellant. Interlocutory judgment affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Isaac Me Munn Holly, Respondent, v. David Grinberg and Adolph Morris, Doing Business under the Name and Style of the Manhattan Storage Company, Appellants. Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

In the Matter of the Probate of the Last Will and Testament of James Stanley Conner, Deceased. Peter T. Longworth and Others, Appellants; William H. Wray, as Executor, etc., of James Stanley Conner, Deceased, and Susan Leonard, Respondents.- Decree of the Surrogate's Court of Kings county affirmed, with No opinion. Hirschberg, P. J., Woodward, Gaynor, Rich and Miller, ccncurred.

costs.

JJ.,

* See Neg. Inst. Law (Laws of 1897, chap. 612), § 160 et seq.— [REP.

App. Div.]

Second Department, January, 1906.

In the Matter of the Application of Francis Groppe, for Letters of Administration with the Will Annexed, etc., of John Groppe, Deceased, Respondent. Anna M. Meyers, Appellant.- Decree of the Surr gate's Court of Kings county affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

John Lenorak, an Infant, by Gottfried A. Metz, His Guardian ad Litem, Respondent, v. Jane E. Duffy, as Executrix, etc., of Terence J. Duffy, Deceased, No opinion. Jenks, Appellant.-Judgment and order affirmed, with costs. Hooker and Rich, JJ., concurred; Miller, J., dissented.

James McLoughlin, Respondent, v. The Board of Education of the City of New York, Appellant.-Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

John A. C. Nichols, Respondent, v. The City of New Rochelle, Appellant.Judgment and order affirmed, with costs. No opinion. Hirschberg, P. J., Hooker, Rich and Miller, JJ.. concurred; Jenks, J., adhered to the dissent expressed by him in 105 Appellate Division, 77.

Rosa North, Appellant, v. Samuel North, Respondent.- Judgment affirmed, without costs. No opinion. Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

David Nowak, Appellant, v. Mendel Barkas, Respondent.-Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Rich and Miller, JJ., concurred.

Abraham Nussbaum, Appellant, v. Brooklyn Ferry Company of New York, Appellant.- Order of the County Court of Kings county setting aside the verNo opinion. Jenks, dict and granting a new trial affirmed, without costs. Gaynor, Rich and Miller, JJ., concurred; Hooker, J., voted to restore the verdict.

Leo Oppenheimer, as Trustee in Bankruptcy of the Estate of John McNamara, a Bankrupt, Appellant, v. John McNamara and Michael McNamara, Respondents. Judgment unanimously affirmed, with costs. No opinion. Present Hirschberg. P. J., Woodward, Jenks, Rich and Miller, JJ.

Susan A. Phelps, Respondent, v. John W. Phelps, Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Hirschberg. P. J., Woodward and Miller, JJ., concurred; Jenks and Rich, JJ., voted to reduce the allowance for alimony.

Henry Rothman, Appellant, v. David Granat and the Empire State Surety Company, Respondents.- Judgment of the Municipal Court affirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Νο

Hans Triest, Plaintiff, v. The City of New York, Defendant.- Both parties ask for a reversal of the judgment. Judgment reversed, without costs. opinion. Hirschberg, P. J., Jenks, Hooker, Rich and Miller, JJ., concurred. Thomas Van Sant, Agent, etc., Respondent, v. Louis Heymann, Appellant.Order of the Municipal Court aflirmed, with costs, No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

Thomas Van Sant, Agent, etc., Respondent, v. Henry M. Whitbeck, Appellant.- Order of the Municipal Court allirmed, with costs. No opinion. Jenks, Hooker, Gaynor, Rich and Miller, JJ., concurred.

William J. Wilson, Respondent, v. Charles Weissel, Appellant.- Judgment No opinion. Jenks, Hooker, Gayof the Municipal Court affirmed, with costs. nor, Rich and Miller, JJ., concurred.

John Zambetti and Frank Zambetti, Respondents, v. Charles Moder, Appellant.-Judgment of the Municipal Court affirmed, with_costs. Jenks, Hooker, Gaynor and Miller, JJ., concurred; Rich, J., dissented.

No opinion.

First Department, February, 1906.

[Vol. 111.

FIRST DEPARTMENT, FEBRUARY, 1906.

Edwin Blum, on Behalf of Himself and All Other Stockholders of the Distilling Company of America, Similarly Situated, Appellant, v. Harry Payne Whitney, as Executor, etc., of William C. Whitney, Deceased, and Others, Respondents.

Appeal by the plaintiff from an interlocutory judgment, entered in the office of the clerk of the county of New York on the 18th day of September, 1905, sustaining demurrers to the third amended complaint.

PER CURIAM: We are all of opinion that the case of Hutchinson v. Simpson (92 App. Div. 382) is decisive of this appeal; but were it not for the controlling authority thereof Justices Laughlin and Clarke would dissent on the grounds stated in the dissenting opinion therein. It follows that the judgment should be affirmed, with separate bills of costs to the respondents appearing separately, with leave to plaintiff to serve an amended complaint within twenty days from the service of the order to be entered hereon, on payment of the costs in this court and in the court below. Present - Patterson, Ingraham, Laughlin and Clarke, JJ. Judgment affirmed, with separate bills of costs to respondents appearing separately, with leave to plaintiff to amend on payment of costs in this court and in the court below. Order filed.

Margaret Kelly and Margaret Kelly, as Administratrix, etc., of Duncan Kelly, Deceased, Appellants, v. Edward Ashforth and Others, Respondents.

Undue influence-action to set aside conveyance of mortgages in trust because of

undue influence-presumption of fraud.

Appeal from a judgment entered upon the decision of the court at Special Term. Judgment affirmed, with costs, on the opinion of the court below. (Reported in 47 Misc. Rep. 498.) Order filed. Present - O'Brien, P. J., Ingraham (concurring in opinion), Laughlin and Clarke, JJ.

INGRAHAM, J. (concurring): I concur in the affirmance of this judgment and generally in the opinion of the learned trial court. The plaintiffs, as representstives of the decedent, are not seeking to prevent the enforcement of an executory contract. They are seeking to set aside a transfer of property made in Novemiber, 1896, in trust for the benefit of the plaintiff's intestate and his wife during their lives, with a remainder over to the defendant Ashforth, on the ground that this arrangement was procured by undue influence exercised by Ashforth. The complaint alleged that the transfer of the property and the trust agreement were procured by Ashforth from Kelly “by means of undue influence, fraud and threats against the said Duncan Kelly," and "that the statement of the consideration for the execution of the said alleged trust agreement * * * was a trick or device for the purpose of giving to said alleged trust agreement an appearance of validity, and for the purpose of inducing the said Duncan Kelly and the defendant The Farmers' Loan & Trust Company to believe that said alleged trust agreement was founded upon a valuable consideration," but in fact there was no consideration therefor. The evidence disclosed that this property, transferred to the Farmers' Loan and Trust Company in trust, consisting of two mortgages of the value of $25,000, was the property of Duncan Kelly, who had a perfect right to do with it as he saw fit. He could have spent it, given it away, bequeathed it by a last will and testament, or treated it as any one has the power to treat his own property. He transferred the property to the Farmers' Loan and Trust Company by valid transfers, and at the same time there was executed a written agreement by which the trust company agreed to hold the bonds and mortgages upon certain trusts specified. There was no evidence that Kelly was not perfectly sane and in the full possession of all his faculties at the time he made this agreement; that he did not know what he was about, or did not intend to do just what he did, and for almost nine years after the trust was created he acquiesced in it, received the income from the trust property under the trust agreement, and never expressed any dissatisfaction with the arrangement. There was no evidence that this arrangement was suggested by the defendant Ashforth; that it was through his influence that Kelly transferred the property and executed the trust agreement, or that he had anything to do with the transaction, except that he was present at the time that the trust agreement was executed and