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FOURTH DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

month, the plaintiff was entitled to recover | In the Matter of the Application of La Rue by reason of the fact that Mr. Byrne held Peck and Others v. Francis G. Ward, Comover after the first of the month, and that the missioner, etc. — Appeal dismissed, without tenancy from month to month, if such it was, costs. upon stipulation. was not properly terminated.' There was no The People of the State of New York ex. rel opinion filed or findings made in the case, so Frank S. Coit v. Charles B. Wheeler and that there was no definite determination of Others.- Appeal dismissed, without costs, the question of whether the lease was for a upon stipulation. year from May first, 1900, or from inonth to In the Matter of the Estate of Heman D. month." He had before held that the former Miver, Deceased.- Appeal dismissed, withjudgment was conclusive as to the other mat out costs, upon stipulation. ters of defense alleged, and that the only Eva Huber, as Administratrix, etc., v. Bell question left to be determined in this action Telephone Company of Buffalo. Appeal was whether the lease was for one year from dismissed, without costs, upon stipulation. May 1, 1900, or from month to month. He Mary A. McCarthy, Appellant, v. Mary Huge: finally concluded that the former judgment ler, Respondent.-Judgment reversed and was conclusive as to the length of tlie lease it new trial ordered, with costs to the appelself, and directed the verdiet for the plaintiff. lant to abide event. Held, that the comThe judge could not determine in his own plaint states a cause of action against the mind, and from his own recollection, what defendant for enticing away the plaintiff's was decided in the first action. He could only husband and enticing him to permanently be governed by the evidence given upon the desert her; but whether or not the evidence present trial. The pleadings were all in was sufficient to establish such alleged cause evidence, and it was proved that the lease of action was a question of fact for the jury, referred to in the pleadings in the former and that the alleged cause of action was not action was the same one involved in the barred by the Statute of Limitations. All present action, that the premises leased concurred. were the same, and that the rent recovered in Charlotte Williams, Respondent, v. Metropoli. the former action was for October and No tan Life Insurance Company, Appellant. vember, 1900. It appeared also that the -- Judgment and order reversed and new defendant vacated the premises October 1, trial ordered, with costs to the appellant to 1900, and that plaintiff claimed that rent, abide the event, upon questions of law only, upon the theory of a lease for one year from the facts having been examined and co error May 1, 1900, and the defendant claimed the found therein. Held, that it was error for lease was from month to month, and both the trial justice, as he apparently did, to gave evidence to support their claims. The permit the jury to consider the attesta. termination of the lease and the surrender tion clause upon the policy in question as and acceptance of the premises were all evidence of its issue and delivery, so as to claimed by the defendant to have taken make a completed contract as claimed by place prior to October 1, 1900. A recovery in the plaintiff. Also held, that it was an im. the former action, of the October and No propriety calling for reversal for the counsel vember, 1900, rent, therefore, was a decision for the plaintiff in summing up to state: upon all these issues in favor of the plaintitf * Here is this insurance company, with its and against the defendant, and those ques. millions, and here is this widow, with these tions could not be tried over again in the two little ones. As between this insurance present action. It cannot be said that the company, with its millions and this widow, question as to the continuance of the lease with her two little ones, I hope you won't was not in issue in the first action when the hesitate long what to do." All concurred. evidence given on that trial (wbich is in the John L. Dow, Respondent, v. Leo Lippert record here) shows that plaintiff testified and Adam Lippert, Appellants.- Judgment to it and defendant denied it. Nor can it be affirmed, with costs. All concurred, said that there was no proof given upon the Mary M. Burton, Respondent, v. Warren J. first trial as to the termination of the ten Parsell, Appellant.-- Judgınent and order ancy from month to month, and, therefore, affirmed, with costs. All concurred. the court may have decided the case upon Nettie West, as Administratrix, etc., of Charles the theory of such a tenancy not terminated E. West, deceased Appellant, v. The New by the defendant. The whole evidence given York Central and Hudson River Railroad on the first trial does not appear to have Company, Respondent.- Judgment reversed been read on the present trial. The plaintiff and new trial ordered, with costs to the gave evidence showing that the question of appellant to abide event. Held, that the the continuance of the lease was in issue, and question of defendant's negligence, of the that appearing, we cannot say the court did freedom of the plaintiff's intestate from not regard such evidence and did not deter contributory negligence, as well as the ques. mine that question, but really decided the tion of whether the intestate was rightfully case upon the theory of a neglect to termi upon the freight train at the time he met nate a tenancy from month to month. The his death, were all questions of fact which oral pleadings in the first action were very should have been submitted to the jury. general, did not indicate what premises had All concurred. been rented, or what the terms of the lease Augustus E. Maxwell and Peter Yousey, Rewere nor what months the rent covered. It

spondents, v. John Single Paper Company, was proper, therefore, to show by the pro Limited, Appellant. — Judgment and order ceedings on that trial and the evidence affirmed, with costs, All concurred. giver, what the particular issues tried were, George E. Osborne, as Administrator, etc., of and what the decision involved, and that was John A. Osborne, Deceased, Respondent, v. done here. We think the County Court Ocorr & Rugg Company, Appellant.erroneously reversed the judgment of the Judgment and order affirmed, with costs. Municipal Court and ordered a new trial. All concurred. The County Court should be reversed and Grace Wiegand, by Annie Wiegand, her the Municipal Court attirmed, as heretofore Guardian ad Litem, Respondent, y. Fee stated. All concured.

Brothers Company, Appellant.- Judgment Ella D. Spencer, as, etc., v. Town of Sardinia. and order affirmed, with costs. All

- Motion for reargument denied; motion for concurred. leave to appeal to the Court of Appeals Porter D. Smith, as Administrator, etc., of granted.

Amy A. Smith, Deceased, Respondent, s.

App. Div.]

SECOND DEPARTMENT, JULY TERM, 1903.

Lehigh Valley Railroad Company, Appel- | The People of the State of New York, Respondlant. — Judgment and order reversed and ent, v. Battice Jackson, Appellaut.- Judgnew trial ordered, with costs to the appel ment of conviction reversed and new trial orlant to atide event, upon the ground that dered. Held, that we are not satisfied that the verdict is excessive, unless plaintiff the evidence in this case warranted the con. stipulates to reduce the verdict to $7,000, as viction of the defendant and we think the of the date of the rendition thereof, iu case should be submitted to another jury. which event the judgment and order as thus All concurred, except McLennan and wilmodified are affirmed, without costs of this liams, JJ., dissenting. appeal to either party: All concurred, J. Emerson Hall, Respondent, v. Thomas T. except McLennan, J., who voted for the Ballard, Appellant.-- Judgment and order absolute reversal of the judgment and affirmed, with costs. All concurred, except order.

Williams, J., dissenting. Margaret Lang v. John Lutz and Others. Kate Powell, as Administratrix, etc., of Jesse

Motion for leave to appeal to the Court of Powell, Deceased, Respondent, v. The New Appeals granted. The form of the order York Central and Hudson River Railroad and questions to be certified to that court Company, Appellant.- Judgment and order to be settled by and before Mr. Presiding affirmed, with costs. All concurred, except Justice Adams upon two days' notice.

Adams, P. J., dissenting and Hiscock, J., not Louisa Brown v. City of Fulton.- Motion for voting

leave to appeal to the Court of Appeals Alfred F. Cross, Appellant, v. Francis Curnan denied, with ten dollars costs.

and Ernest Hochstadter, Respondents.John Lahey v. Traders' Paper Company - Judgment afirmed, with costs.

All conMotion for leave to appeal to the Court of curred. Appeals denied, with ten dollars costs and John Wilson, Appellant, v. Dexter Sulphite disbursements.

Pulp and Paper Company, Respondent.-In the Matter of Proving the Last Will and Judgment attirmed, with costs.

All conTestament of Lucinda W. Norton, Deceased. curred. Emma Oley, as Executrix, etc., of Lucinda William Wazenski, Plaintiff, v. The New York W. Norton, Deceased, Appellant; General Central and Hudson River Railroad Com. M. Hammond and Others, Respondents. pany, Defendani.- Plaintiff's exceptions Decree of Surrogate's Court entered herein overruled, motion for new trial denied and refusing probate reversed and a new trial judgment ordered in favor of the defendant, of the material questions of fact arising with costs. All concurred. upon the issues between the parties ordered William D. Hurd, as Trustee in Bankruptcy of to take place at the next Trial Term of the Henrietta W. Huey, Respondent, v. Milton Supreme Court in Onondaga county, with V. Huey, Appellant.- Judgment affirmed, costs to the appellar ag: the rest

with costs. All concurred. ents personally to abide event. The form Robert L. Utley, Appellant, v. John W. Webb, of the order to be settled by and before Mr. Respondent.-Judgment and order affirmed, Justice Hiscock, on two days' notice. Held, with costs. All concurred, except Spring, that a review of the testimony presented J., dissenting. does not satisfy this court that the con Stella A. Barrett. Respondent, v. Frederick J. clusion of the learned surrogate that the Baker and Another, Appellants. - Judgment testatrix was incompetent to make the will and order affirmed, with costs. All conin question is in accordance with the pre curred. ponderance of evidence. All concurred. Morris Fox v. Warren Dix Hopkins.- Motion In the Matter of the Application of Ida Graves for leave to appeal to the Court of Appeals Raymond, Respondent, for Trust Funds denied, with ten dollars costs. Motion to under the Will of Sarah A. Brewster, amend decision denied. Deceased, Now on Deposit with the Rochester | In the Matter of the Final Judicial Settlement Trust & Safe Deposit Company. John Gor of the Accounts of Watson Turner, as Guarham, as Committee of the Person and Estate dian of Earl M. Pinckney.- Motion granted of Frederica Sturges, Appellant.-- Decree of and decision heretofore made and filed by Surrogate's Court affirmed upon opinion of this court in above-entitled matter amended this court in same case, reported in 73 Appel by stating that the decree appealed from is late Division, 11, with costs and disburse reversed both upon questions of law and of ments of both parties on this appeal to be fact, and also amended so as to state in de. paid out of the fund held by the trust com tail the provisions of the decree to be entered pany. All concurred.

by the Surrogate's Court of Herkimer county Clara B. Myers, Respondent, v. Mary J. Hob in accordance with the views and conclu.

son, Individually, etc., Appellant. - Judg. sions set forth in the opinion handed down ment reversed and new trial ordered, with by this court in the above-entitled matter, costs to the appellant to abide event upon except that there be omitted any provision questions of law only, the facts having been charging the above-named guardian with the examined and no error found therein, upon sum of $665, received on sale of infant's authority of Mahaney v. Carr (175 N. Y. 454). real estate, with interest thereon, the same All concurred.

having been paid over under decree appealed Lucy A. Coleman and Others, Respondents, v. from. The form of the order to be settled

The Village of Castile, Appellant. — Judg. by and before Mr. Justice Hiscock upon two ment affirmed, with costs. All concurred. days' notice. All concurred.

SECOND DEPARTMENT, JULY TERM, 1903. Hugh J. Begly, Appellant, v. Louis Weddigen of Kings on the 24th day of November, 1902,

and Others, Copartners in Business under dismissing his complaint.the Firm Name and Style of Louis Weddigen Per CURIAM: In this case the agreement & Company, Respondents.-Judgment af. signed by the defendants provided tbat they firmed, with costs. - Appeal by the plaintiff were to pay the plaintiif nothing for his from a judgment of the Supreme Court, en services and disbursements in case of failure tered in the office of the clerk of the county to obtain the abatements or recoveries men

SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

tioned in the contract. In Stedwell v. Hart- | mann (74 App. Div. 126) the agreement expressly provided that everything that was done thereunder by plaintiff's testator was to be done at his own expense." This is the only apparent difference between the two cases, and is not, we think, sufficient to distinguish the case at bar from the Stedwell case. Inasmuch as the latter has been af. firmed by the Court of Appeals on the opinion below (173 N. Y. 091), the opinion of Mr. Justice Patterson must be taken as settling the law, and is a controlling authority in this case for the aifirmance of the judg. ment. Present- - Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ. Herfry Euler, Appeilant, v. Frederick Kappel

mann, Respondent.- Judgment reversedi and new trial granted, costs to abide the event.-- Appeal by the plaintiff from a judg. ment dismissing the complaint at the close of the plaintiff's case, entered in the office of the clerk of the county of Queens on the 20th day of October, 1901 PER CURIAM: Weihink the judgment must be reversed because of the rejection by the learned trial court of the evidence of the surveyor Nostrand. Most of the excluded questions seem competent under the general rules of evidence. Many of them were admitted on the former trial over the appellant's objection and exception, and the judgment and order then entered were unanimously affirmed. (Euler v. Kappel. mann, 60 App. Div. 631.) The judgment should be reversed and a new trial granted, costs to abide the event. Present - Bart. lett, Woodward, Hirschberg, Jenks and

Hooker, JJ. Albert C. Wakefield and Benjamin J. Sturges,

as Copartners, Appellants, v. Charles G. Street, Respondent. - Judgment modified as indicated in opinion per curiam, and as modified affirmed, without costs of this appeal. -- Appeal by the plaintiffs from a judg. ment of the Municipal Court of the city of New York, borough of Brooklyn, entered on the 8th day of December, 1902, directing a disinissal of the complaint on the merits at the close of the evidence for the plaintiffs.Per CURIAN: This is an action by real estate brokers to recover commissions for effecting a sale of property belonging to the defend. ant. At the close of the evidence in behalf of the plaintiffs, a motion to dismiss the complaint was made and granted. We think that this disposition of the case was correct, inasmuch as the plaintiff's had failed to prove that they were the procuring cause of the sale. It was error, however, to render a judgment dismissing the complaint upon the merits. The New York Municipal Court Act provides that where the plaintiff does not prove his cause of action, the judgment must be that the action be dismissed, with costs, without prejudice to a new action. (Laws of 1902, chap. 580, $ 248.) A judgment of dismissal on the merits can be granted only where, at the close of the whole case, the court is of opinion that the plaintiff is not entitled to recover as matter of law, or where the court sustains a de. murrer and no leave to plead over is granted. (IJ, $ 219.) The judginent must be modified by striking out the words “on the merits,” and inserting in lieu thereof the words "without prejudice to a new action;' and as thus modified affirmed, without costs of this appeal to either party. Present Goodrich, P. J., Bartlett, Hirschberg, Jenks

and Hooker, JJ. Richard J. Donovan, Respondent, v. William

R. Weed and Frederic A. Weed, Appel. lapts.- Judgment and order affirmed, with

costs.- Appeal by the defendants from a judgment of the Supreme Court, entered in the office of the clerk of Richmond county on the 19th day of March, 1902 GOODRICH, P.J.: The plaintiff has recovered a verdict for broker's commissions upon the sale of 4,000 acres of Adirondack land to Mr. A. A. Low in the early part of 101. At the trial the defendants' counsel said: * This land was sold to Mr. A. A. Low. If Mr. Donovan brought about that sale, he is entitled to a commission for making that sale. We do not object to any evidence which shows that he made a sale to Jir. Low." This admission practically narrowed the issue to the question whether the plaintiff was the procuring cause of the sale to Mr. Low In October, 1898, the plaintiff wrote the defendant Willian. R. Weed a letter in answer to one received from him, in which, after referring to the land, he said: "I note that you say the price is $7.30 per acre; no commission at that price. Now, the only way that I could handle this satisfactory to all parties concerned would be to charge a fixed commission for a selling price; no matter what that price might be. I would be willing to take the matter up and go to work on it immediately and charge you a conimission of 10% of the selling price. If you desire to have me go into the matter, I would like a blue print, if you have one, or a good map of any kind showing the bodies of water on the land, together with the relation the land bears to the railroad, and adjoining land owners." In January, 1999, Weed called on the plaintiff in New York city and had a conversation with him in regard to the matter, and the interview eventuated in the following letter: "LENNEY & DONOVAN, Counsellors at Law, 120 Broadway.

“Nw YORK, January 12th, 1899. "R. J. DONOVAN, Esq. New York:

Dear Sir.- We will sell you our land in Bog River, Township, Oakham, comprising about 4,500 acres for 36.00 per acre less 10% com. to you, we to have the right to cut and remove the spruce timber and pulp wood and the right to the use of the lands for the purpose of lumbering in the usual manner of lumbering and we agree to cut and remove the timber and pulp wood within six years, or we will sell the whole amount of land without any restrictions for $10.0 per acre less 10% com. The title is perfect and a warranty deed will be given, the above com. to be paid should price per acre be less as agreed between us and Mr. Donovan, " WILLIAM R. & FREDERIC A, WEED,

* Per W. R. WEED." In June, 1900, the plaintiff went to the Adirondacks to see Mr. Low at his place at Horseshoe Pond, and testified that he told hin about the property and its advantages, and about the lakes and streams and the timber upon it, and that he had a long interview with him. Mr. Low said that he would consider the property, and although he said he would not give any definite reply at that time he might do something about it. The plaintiff again went from New York to Horseshoe Pond and saw Mr. Low later in the summer, when Mr. Low wanted some blue prints and surveys showing the location of the property, its size and the lakes, etc. The plaintiff obtained blue prints from Weed and gave them to Mr. Low, and afterwards saw him twice during the season, and in August and September wrote Weed several times about the matter. On August twenty. eight the plaintiff obtained from the defendants an option to purchase the land at

App. Div.1

SECOND DEPARTMENT, JULY TERM, 1903.

nine dollars per acre, with a letter to the Thomas C. Taylor, Respondent, y. Larchmont plaintiff saying: “If the sale is consummated Water Company, Appellant. - Judgment rewe will pay you only a commission of 50 versed and new trial granted, costs to abide cents per acre." The plaintiff at once com- the final award of costs.-. Appeal by the demunicated with the defendants, repudiating fendant, Larchmont Water Company, from that amount of brokerage commissions, a judgment of the Supreme Court, entered and had an interview with Frederic A. in the office of the clerk of the county of Weed, which resulted in the following letter Westchester on the 13th day of March, 1902, from the defendants:

requiring the defendant to remove its water " August 31st, 1900. main from Myrtle place in the village of "Mr. R. J. DONOVAX, Malone, N. Y.:

Larchmont in the town of Mamaroneck.* DEAR SIR.- We will give one dollar per HIRSCHBERG, J.: This action was commenced acre commission if you bring about sale on October 23, 1900, its object being to compel of our Oakham land at $9.00 per acre. We the defendant, an incorporated water comto have $8.00 per acre net land & water. pany, to take up a water main heretofore This option for thirty days.

laid by it in Myrtle avenue and in a continuYours truly,

ation of such avenue known as Myrtle place, " W. R. & F. A. WEED." in the village of Larchmont, in the town of

Mamaroneck. The trial court found that After the introduction of these letters in evi. Myrtle place was a private street, the freedence defendants' counsel made the conces- hold title to the bed of which was vested in sion already quoted. On January 12, 1901, the plaintiff, and required the removal of the defendants wrote the plaintiff a letter the main from that place; but as the dam. canceling his employment, saying: “We age done the plaintiff might not be subhave withdrawn the land from sale and will stantial, the judgment provided that the not allow you any commission."

It is proven

defendant should have sixty days' tine in that Mr. Low bought the property in Febru. which to instituto legal proceedings for the ary, 1901, at eight dollars per acre, the deed condemnation of a right to maintain the being given to him in April. I have not pipes in question in Myrtle place. While stated the entire evidence on the question of the evidence justifies the conclusion reached the plaintiff's agency in effecting the sale to by the trial court that the street in question Mr. Low, but it was sufficient to require the is private property, I think it is not suffisubmission to the jury of the question ciently clear that the plaintiff is the owner; whether the plaintiff was the procuring and under the circumstances disclosed as to cause of the purchase by Mr. Low. While it the original laying of the pipe or main only would have been more satisfactory if Mr. the clearest evidence of right would justify Low had been called as a witness, it must be a court of equity in requiring the defendant observed that it was within the power of the to incur the expense of removing what was defendants to do so, and the failure to call unquestionably originally placed in the him does not militate exclusively against the street at its expense, but for the sole benefit plaintiff, who, as already intimated, had pro- of the plaintiff. It appears that the defendduced evidence sufficient to establish his ant's pipes in 1899 were laid in Diyrtle cause of action. There was also evidence of- avenue and also in a highway known as fered by the defendants from which the jury Edgewood avenue, the two avenues being might have inferred that the plaintiff was connected by Myrtle place. The plaintiff unfaithful to the interests of the defendants, having built at or near the junction of Edgegrowing out of the Conklin option, which, if wood avenue and Myrtle avenue, complained unexplained, might have defeated his claim to the defendant of the quality of the water for brokerage comunissions; but there was supplied to his house, and the defendant in also evidence that after the defendants knew order to remedy the trouble, which is at. all the circumstances they renewed and con- tributed to the “dead end " of the pipe, firmed their negotiations with him for the then opposite the plaintiff's house, laid the sale. The court carefully instructed the main in question in order to secure a con. jury upon these subjects, submitting to them tinuous circulation. This was done at an three questions: First. Was this sale a sale expense of $600 or $700, and the evidence that was brought by his efforts, by his serv. leaves little room for doubt that it was ices, as the efficient cause ? Second. Was he done with the plaintiff's knowledge and ac. guilty of any infidelity to their interests quiescence. A difference between the par. which would forfeit his right to a commis- ties afterwards developed has apparently sion ? Third. Ii so did they forgive him?" given rise to the litigation, but equitable The jury found for the plaintitf on all these considerations would naturally dictate that questions, and we see no reason to disturb a condition of affairs so created should not their verdict. The exception to the refusal be lightly disturbed to the prejudice of the to dismiss the complaint is sufficiently passed defendant, or without the clearest warrant upon by the foregoing statement. I find no of right on the part of the plaintiff. There exceptions to the admission or exclusion of can be no question but that the street has evidence which require discussion. The de- been long dedicated to the public use, fendants excepted to the statement in the although never formally accepted or recharge "that he (the plaintiff) found Mr. Low cognized by the town authorities, unless it in this case is beyond question." The court be in the matter of the laying of this pipe said: “If I used that expression it was, per: which would seem to have been located or haps, an unfortunate one. They employed placed to seme extent under the direction plaintiff, however, to present this property, of the commissioner of highways. As early as a subject of purchase, as their broker to as the year 1857 the owners of the property Mr. Low. They employed him to do that, filed a map in the office of the register of the and if they did it does not matter whether county of Westchester, showing Myrtle he found him or whether Mr. Low was not place as a street laid out with lots abutting lost." If the original remark of the court on it, and from that time to the present it taken with its connection was error -- and I has been open to public use and travel. In do not think it was- it was corrected by the every conveyance and transfer of the lots court. The other exceptions to the charge the soil of the street has been carefully are not tenable. The judgment and order excluded from the description of the propshould be affirmed. Bartlett, W Voodward, erty, the conveyances to and from the plain. Jenks and Hooker, JJ., concurred.

tiff, like all the others, being confined to the SECOND DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

abutting lots and not including any portion | ion. Bartlett, Woodward, Hirschberg, Jenks of the street. It further appears that before and Hooker, JJ., concurred. the commencement of this action the plain- The People of the State of New York, Retiff had thus conveyed whatever property spondent, v. Peter Lewitz, Impleaded, etc.. he possessed, either to his wife or to other Appellant.- Judgment of conviction af grantees, and there is nothing in the record firmed. No opinion. Bartlett, Woodward. tending to establish that at the time the Hirschberg, Jenks and Hooker, JJ., conaction was commenced he was the owner of curred. any property either in the street or border- Frances E. Farmer, Appellant, v. Josephine ing on it. He did indeed say that he "sup- M. Sweet, Respondent. - Judgment affirmed, posed "the property was owned by himself with costs. No opinion. Goodrich, P. J., and his wife and that she had given him a Woodward, Hirschberg and Hooker, JJ., reconveyance which he had not recorded. concurred. Such reconveyance was not produced, nor George A. Molitor, Respondent, v. Northampwas any evidence given as to the scope or ton Portland Cement Company, Appellant. nature of the tenure created by it, nor any- - Judgment affirmed, with costs. No opinthing to indicate that it preceded the com.

ion.

Goodrich, P. J., Woodward, Hirschmencement of the action. The plaintiff berg, Jenks and Hooker, JJ., concurred. having no interest in the subject-matter of Edward Butcher, as Trustee of George BODAthe suit upon the record title, should have witz, an Adjudicated Bankrupt, Appellant, been required to disclose explicitly the v. Margaret M. Bonawitz, Respondent.grounds and nature of his claim to the Judgment affirmed, with costs. No opinion. relief which he has obtained by the judg. Goodrich, P.J., Bartlett, Hirschberg, Jeoks ment appealed from in view of the peculiar and Hooker, JJ., concurred. circumstances under which the trespass, if William J. Collier, as Trustee in Bankruptcy there be a trespass, was comunitted, and his of the Estate of Theodore Shay, Bankrupi, failure so to do, wholly apart from any con- Appellant, . Sarah Cole, Respondent. sideration of the defendant's rights in the Judgment affirmed, with costs. No opin, premises, requires a new trial in the interests ion. Goodrich, P. J., Bartlett, Jenks and of justice and equity. The judgment should Hooker, JJ., concurred. be reversed. Goodrich, P. J., Woodward, Long Island Bottlers' Union, Appellant, v. Jenks and Hooker, JJ., concurred.

Michael Seitz, Respondent.- Judgment and Andrew O'Brien, Respondent, V. James P. order affirmed, with costs. No opinion.

Silo, Appellant. — Judgment of the Munici- Goodrich, P. J., Bartlett, Jenks and Hooker, pal Court afiirmed, with costs. No opinion, JJ., concurred. Goodrich, P.J., Bartlett, Woodward, Hirsch- Julius Kessler & Company, Respondent, v. berg and Jenks, JJ., concurred.

James E. Purtell, Appellant. - Judgment Ancel J. Brower, Appellant, v. Moses King. affirmed, with costs. No opinion. Bartlett,

Respondent.- Order affirmed, with ten dol- Woodward, Hirschberg, Jenks and Hooker, lars costs and disbursements. No opinion. JJ., concurred. Goodrich, P.J., Bartlett, Woodward, Hirsch- Priscilla Levett, Respondent, v. Horace G. berg and Hooker, JJ., concurred.

Polhemus, Individually and as Executor, George Meier, Appellant, v. Thomas F. Russell etc., and Others, Respondents; John Crispe,

and David Crutchfield, Respondents.-Order Individually and as Executor, etc., Appelaffirmed, with ten dollars costs and dis- lant.- Order affirmed, with ten dollars costs bursements. No opinion. Goodrich, P. J., and disbursements. No opinion. Goodrich, Bartlett, Woodward, Hirschberg and Hooker, P. J., Bartlett, Jenks and Hooker, JJ., conJJ., concurred.

curred; Hirschberg, J., not voting. Michael J. Cronin, Respondent, v. William Samuel Speigelman, Respondent, v. Union

Schaffer, Appellant. — Judgment of the Railway Company of New York City, Appel. Municipal Court aftirmed, with costs. No lant.-- Judgment of the Municipal Court af. opinion. Goodrich, P. J., Bartlett, Wood- firmed, with costs. No opinion. Goodrich, ward and Jenks, JJ., concurred.

P.J., Bartlett, Hirschberg, Jenks and Isaac Lewis and Julius Basblow, etc., Re- Hooker, JJ., concurred.

spondents, v. Meyer Rabinowitz, Appellant. Elizabeth Boxberger, as Administratrix, etc., --Judgment of the Municipal Court afirmed, of Raymond Boxberger, Deceased, Appel. with costs. No opinion. Goodrich, P. J., lant, v. The Brooklyn Heights Railroad Com. Bartlett, Woodward and Jenks, JJ., con- pany and James Burke, Respondents.-curred.

Order modified by inserting a provision reJohn F. Gillen, Respondent, v, George H. quiring the defendants to pay the costs of

Walker, Jr., Appellant. — Judgment of the the trial and all disbursements in the action Municipal Court affirmed, with costs. No to date, together with the costs of this apopinion. Goodrich, P. J., Bartlett, Wood- peal, all to be paid within twenty days from ward and Jenks, JJ., concurred.

the entry of this order; otherwise order reChristian C. W. Grassmann, Respondent, v. versed and judgment unanimously directed

John Mohl, Appellant.- Judgment of the on this verdict, with costs and costs of this Municipal Court affirmed, with costs. No appeal. No opinion. Goodrich, P. J., Bart. opinion. Bartlett, Woodward, Hirschberg, lett, Woodward, Hirschberg and Hooker, Jenks and Hooker, JJ., concurred.

JJ., concurred. Christian F. Mentzinger, Appellant, v. Edgar In the Matter of the Petition of Luigi Castel

R. Gallavan, Respondent. - Judgment of the lano, Individually and as Secretary of the Municipal Court' affirmed. with costs. Societa Italiana di Mutuo Soccorso in Brookopinion. Bartlett, Woodward, Hirschberg, lyn, Appellant, v. Francesco Cafiero and Jenks and looker, JJ., concurred.

Others, Impleaded with the Societa Italiana Charles M. Schreyer, Respondent, V. J. S. di Mutuo Soccorso, Respondent.- Order af

Bailey & Company, Appellant.- Order af- firmed, with ten dollars costs and disbursefirmed, with ten dollars costs and disburse- ments. No opinion. Bartlett, Woodward, ments. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., conHirschberg, Jenks and Hooker, JJ., con- curred. curred.

Charles H. Smith, Appellant, v. Erie Railroad Mathew M. Smith, Respondent, v. Max Rich- Company, Respondent.- Judgment and or

man, Appellant.- Order affirmed, with ten der of the County Court of Orange county dollars costs and disbursements. No opin- reversed and new trial ordered, costs to

No

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