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rtment. October 17, 1908.) Action by Delia abo against Baptiste Diabo. No opinion. otion for reargument denied, with $10 costs. otion for leave to appeal to the Court of Apals denied.

DUNLOP, Respondent, v. CITY OF NEW
YORK, Appellant. (Supreme Court, Appellate
Division, First Department. November 6, 1908.)
Action by Charles Dunlop against the city of
New York. T. Connoly, for appellant. A. D.
Kneeland, for respondent. No opinion. Judg-
ment affirmed, with costs. Order filed.

DUNLOP, Appellant, v. MOSELEY et al.,
Respondents. (Supreme Court, Appellate Divi-
October 9, 1908.)
sion, Second Department.
Action by Charles Dunlop against George W.
Moseley and others. No opinion. Judgment af-

In re DITTRICH. (Supreme Court, Appel-
e Division, Second Department. October 16,
08.) In the matter of the application of An-
ew Dittrich, as executor under the last will
d testament of Mary Dittrich, deceased, for
removal of Ellen C. Duffy, as executrix and
stamentary trustee under the said last will
d testament. No opinion. Decree of the Sur-firmed, with costs.
gate's Court of Kings county affirmed, with
Sts. See, also, 52 Misc. Rep. 277, 102 N. Y.
pp. 1124; 53 Misc. Rep. 511, 105 N. Y.
pp. 301; 120 App. Div. 504, 105 N. Y. Supp.

3.

DONEGAN & SWIFT v. HUBBARD. (Su-
eme Court, Appellate Division, First Depart-
ent. October 16, 1908.) Action by Donegan &
wift against Norman Hubbard, Jr. No opin-
. Motion denied on terms stated in order.
der filed. See, also, 110 N. Y. Supp. 98.
DOUGHERTY, Respondent, v. WESTING-
OUSE, CHURCH, KERR & CO., Appellant.
upreme Court, Appellate Division, Second De-
rtment. October 16, 1908. ) Action by Anna
Dougherty, as administratrix, etc., of Wil-
m J. Dougherty, deceased, against Westing-
use, Church, Kerr & Co. No opinion. Order
irmed with $10 costs and disbursements.
DOWNES, Respondent, v. WENNINGER,
opellant, et al. (Supreme Court, Appellate
vision, First Department. October 16, 1908.)
tion by Bazena T. Downes against Carolina
enninger, impleaded with others. W. G. Mul-
an, for appellant. No opinion. Appeal dis-
ssed, with $10 costs and disbursements. Or-

filed.

DUCHAMBEAU, Respondent, V. AMES
ON WORKS, Appellant. (Supreme Court,
opellate Division, Fourth Department. Octo-
T 14, 1908.) Action by Margaret Ducham-
u, as administratrix, etc., against the Ames
on Works.

PER CURIAM. Judgment and order re-
red, and new trial ordered, with costs to ap-
llant to abide even. Held, that the proof fails
show that plaintiff's intestate was free from
ntributory negligence.
MCLENNAN, P. J., dissents.

DUNN, Respondent, v. CITY OF NEW
YORK, Appellant. (Supreme Court, Appellate
Action by Owen J. Dunn against the city of
Division, First Department. November 6, 1908.)
New York. T. Connoly, for appellant. B. W.
Gibson, for respondent.

PER CURIAM. Judgment and order affirm-
Order filed.
ed, with costs.
HOUGHTON and SCOTT, JJ., dissent.

DUNN, Respondent, v. MARTIN, Appellant. (Supreme Court, Appellate Division, First Department. November 6, 1908.) Action by Frederick P. Dunn against Thomas R. Martin. J. E. Lawshe for appellant. C. Fischer, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

In re DUNNING. (Supreme Court, Appellate Division, First Department. November 6, 1908.) In the matter of Charles T. Dunning. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

DURLAND et al., Appellants, v. CRIPPEN, Respondent. (Supreme Court, Appellate Division, Third Department. September 17, 1908.) Action by Charles M. Durland and others against George Crippen. No opinion. Judgment modified, by striking therefrom recovery of damages of $1 and interest in favor of the defendant, and, as so modified, affirmed, without costs in

this court.

ECKHARDT, Respondent, v. INTERNATIONAL RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 7, 1908.) Action by Katherine Eckhardt against the International Railway Company.

PER CURIAM. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event. Held, that the verdict of the jury is contrary to and against the weight of evidence.

MCLENNAN, P. J.,

dissents.

In re DUFFY. (Supreme Court, Appellate vision, Second Department. October 16, 08.) In the matter of the judicial settlement ECONOMIC POWER & CONST. CO., Rethe intermediate account of Elizabeth M. fy, as administratrix, etc., of Louisa Moran, spondent, v. CITY OF BUFFALO et al., Apceased. No opinion. Motion granted. See, Fourth Department. September 23, 1908.) Acpellants. (Supreme Court, Appellate Division, so, 127 App. Div. 74, 111 N. Y. Supp. 77. tion by the Economic Power & Construction DUFFY v. MCCLELLAN. (Supreme Court, pellate Division, First Department. October , 1908.) Action by Thomas F. Duffy against eorge B. McClellan. No opinion. Motion anted, with $10 costs. Order filed.

Company against the city of Buffalo and others.

PER CURIAM. Judgment (59 Misc. Rep. 571, 111 N. Y. Supp. 443) affirmed, with costs.

KRUSE, J., dissents upon the ground that the act of the Legislature, so far as it assumes to

and 146 New York State Reporter

grant to a private corporation the use of the public right of the streets and highways of the state, is unconstitutional and void; it being not merely a declaration of the powers of the corporation, but an attempt to confer a valuable property right (People v. O'Brien, 111 N. Y., 1, 18 N. E. 692, 2 L. R. A. 255, 7 Am. St. Rep. 684) by private act, without expressing

the same in the title of said act.

SPRING, J., not sitting.

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EPXTEIN v. ZEDIKOW. (Supreme Court 30, 1908.) Action by Ike Epxtein against Lod Appellate Division, First Department. October wig Zedikow. No opinion. Motion granted. with $10 costs. Order filed.

In re E. R. STRONG CO. (two cases). (Su

EGAN v. P. J. CARLIN CONST. CO. (Supreme Court, Appellate Division, First Depart-preme Court, Appellate Division, Second Dement. October 30, 1908.) Action by Joseph Egan against the P. J. Carlin Construction Company. No opinion. Motion granted, with $10 costs. Order filed.

EHRLICH v. LEWIS REALTY CO. (Supreme Court, Appellate Division, First Department. October 30, 1908.) Action by William Ehrlich against the Lewis Realty Company. No opinion. Motion denied, with leave to renew as stated in order. Order filed.

partment. October 22, 1908.) In the matter of the application for a voluntary dissolution of the E. R. Strong Company. No opinion. Appeals dismissed, unless the appellants accept the be vacated at Special Term, following our decistipulation of the respondents that the orders sion in Matter of Strong, 112 N. Y. Supp. 557, 558, decided October 16, 1908.

EWELL, Respondent, v. EWELL, Appel lant. (Supreme Court, Appellate Division, S ond Department. October 22, 1908.) Action EISENIIAUER, Respondent. v. BROOKLYN by Charlie L. Ewell against James L. Ewell. HEIGHTS R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. disbursements. No opinion. Order affirmed, with $10 costs and October 16, 1908.) Action by Nicholas Eisenhauer against the Brooklyn Heights Railroad Company. No opinion. Judgment and order reversed, and new trial granted, costs to abide the event, upon the ground that the verdict is against the weight of the evidence.

ELECTRICAL ACCESSORIES CO., Respondent, v. MITTENTHAL, Appellant. (Supreme Court, Appellate Division, First Department. October 16, 1908.) Action by the Electrical Accessories Company against Samuel S. Mittenthal. L. Laski, for appellant. J. S. Galland, for respondent.

PER CURIAM. Order affirmed, with $10 costs and disbursements. Order filed.

INGRAHAM and CLARKE, JJ., dissent.

ELSAESSER, Appellant, v. PFENNIG, Respondent. (Supreme Court, Appellate Division, Fourth Department. September 30, 1908.) Action by Adam Elsaesser against Frank L. Pfen

nig.

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In re FALLON. (Supreme Court, Appellate Division, Second Department. October 9, 1908. In the matter of the application of John J. Fallon for admission to the bar. No opinion. Application granted.

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Perlman. No opinion. Judgment of the Mu- by James B. Fisher against Ernestus Gulick. nicipal Court affirmed, with costs.

In re FENN. (Supreme Court, Appellate Division, Third Department. October 2, 1908.) In the matter of the application of Alice E. Fenn, an infant, individually and by Catherine D. Fenn, her guardian ad litem, to lay out a highway in the town of Putnam, and the assessment of damages therefor. No opinion. Order of the County Court confirmed, without costs. See, also, 112 N. Y. Supp. 431.

FERRARI, Appellant, v. RACEY, Respondent. (Supreme Court, Appellate Division, First Department. October 23, 1908.) Action by Prosper R. Ferrari against Mary A. Racey as executrix. A. M. Pariser, for appellant. G. H. Francoeur, for respondent.

PER CURIAM. Judgment and order affirmed, with costs. Order filed.

LAUGHLIN and CLARKE, JJ., dissent.

FERRY, Respondent, v. NEW YORK CITY RY. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 22, 1908.) Action by James Ferry against the New York City Railway Company. No opinion. Order affirmed on argument, with $10 costs and disbursements.

FILKINS, Respondent, v. MASON, Appellant. (Supreme Court, Appellate Division, Fourth Department. September 23, 1908.) Action by Ernest J. Filkins against Fred E. Mason. No opinion. Motion for reargument denied, with $10 costs. Motion for leave to appeal to Court of Appeals denied.

FINUCANE, Respondent, v. WARNER, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 14, 1908.) Action by Amelia A. Finucane against Chas. G. Warner.

PER CURIAM. Order (112 N. Y. Supp. 137) affirmed, with $10 costs and disbursements. MCLENNAN, P. J., and ROBSON, J., dis

sent.

FISCHER, Respondent, v. HOME INS. CO., Appellant. (Supreme Court, Appellate Division, First Department. October 16, 1908.) Action by Henry Fischer against the Home Insurance Company. A. B. Nathan, for appellant. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

In re. FISHER. (Supreme Court, Appellate Division, Fourth Department. July 24, 1908.) In the matter of John W. Fisher, an attorney. No opinion. Referee's report confirmed, and the name of John W. Fisher, of Buffalo, N. Y., ordered stricken from the roll of attorneys and counselors of the Supreme Court, and said attorney forbidden to practice in any of the courts of this state. See 111 N. Y. Supp. 1119. FISHER, Respondent, v. GULICK, Appellant. (Supreme Court, Appellate Division, Second Department. October 22, 1908.) Action

No opinion. Motion denied.

FISHER et al., Respondents, v. HARTELL, Appellant. (Supreme Court, Appellate Division, Fourth Department. September 23, 1908.) Action by Henry C. Fisher and another against George W. Hartell. No opinion. Motion for reargument denied, with $10 costs. Motion for leave to appeal to Court of Appeals denied.

FITZGERALD, Appellant, v. SYRACUSE RAPID TRANSIT RY CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. September 30, 1908.) Action by Margaret I. Fitzgerald, an infant, etc., against the Syracuse Rapid Transit Railway Company. PER CURIAM. Judgment affirmed, with

costs.

MCLENNAN, P. J., not sitting. KRUSE, J., dissents.

FLOOD, Appellant, v. CHELSEA REALTY CO. et al., Respondents. (Supreme Court, Appellate Division, First Department. October 23, 1908.) Action by Eugene J. Flood against the Chelsea Realty Company and others. E. W. Keene, for appellant. J. H. Regan, for respondents. No opinion. Judgment affirmed, with costs. Order filed.

FORSBERG, Respondent, v. MICHEL, Appellant. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by Charles Forsberg against Leonhard Michel. No opinion. Judgment and order unanimously affirmed, with costs.

FOSTER, Respondent, v. AMERICAN FIDELITY CO., Appellant. (Supreme Court, Appellate Division, First Department. October 16, 1908.) Action by Roger Foster and another against the American Fidelity Company. C. J. Gleason, for appellant. J. A. Allen, for re$10 costs and disbursements, on authority of spondent. No opinion. Order affirmed, with N. Y. Supp. 224, 1151.. Order filed. Rochkind v. Perlman, 123 App. Div. 808, 108

FOWLER PLUMBING & HEATING CO. v. CANDEE et al. (Supreme Court, Appellate Division, Second Department. October 22, 1908.) Action by the Fowler Plumbing & Heating Company against Fernando C. Candee, Jr., and another. No opinion. Order affirmed on argument, with $10 costs and disbursements.

Ac

FRINDEL, Respondent, v. FRINDEL, Appellant. (Supreme Court, Appellate Division, Second Department. October 22, 1908.) tion by Lottie E. Frindel an infant, by Morris Barkas, her guardian ad litem, against Benjamin Frindel. No opinion. Order affirmed, with $10 costs and disbursements.

FRING, Appellant, v. CITY OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First Department. October 23, 1908.) Action by Charles Fring against the city of New York. H. H. Heyman, for appellant. T. Connoly, for respondent. No opinion.

and 146 New York State Reporter

Judgment and order affirmed, with costs. der filed.

Or

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FULTON, Respondent, v. MALONEY, Appellant. (Supreme Court, Appellate Division, Second Department. October 22, 1908.) Action by Robert M. Fulton against Daniel W. Maloney. No opinion. Judgment affirmed, with costs.

F. V. SMITH CONTRACTING CO., Appellant, v. CITY OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First Department. November 6, 1908.) Action by the F. V. Smith Contracting Company against the city of New York. L. L. Kellogg, for appellant. T. Farley, for respondent. No opinion. Judgment and order affirmed, with costs, on 115 App. Div. 180, 100 N. Y. Supp. 756. Order filed.

GABELMAN, Respondent, v. DRESSLER, Appellant. (Supreme Court, Appellate Division, Second Department. October 22, 1908.) Action by Henrietta Gabelman against Peter Dressler. No opinion. Motion granted.

GEOGHEGAN, Respondent, v. UNION RY. CO., Appellant. (Supreme Court, Appellate Division, First Department. November 6, 1908.) Action by John J. Geoghegan against the Union Railway Company. J. V. Bouvier, for appellant. S. C. Baldwin, for respondent. No ion. Judgment and order affirmed, with costs. Order filed. See, also, 122 App. Div. 646, 107 N. Y. Supp. 503.

PER CURIAM. firmed, with costs.

Judgment and order af

WILLIAMS, J., dissents.

In re GERSTENBERG. (Supreme Court, Appellate Division, Second Department. October 16, 1908.) In the matter of the judicial settlement of the account of Charles S. Gerstenberg, as administrator of the estate of Mary Gerstenberg, deceased. No opinion. Motion denied.

GERTLER, Respondent, v. BROOKLYN, Q. C. & S. R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 16, 1908.) Action by Abraham Gertler against the Brooklyn, Queens County & Suburban Railroad Company. No opinion. Judg ment of the Municipal Court reversed, and new trial ordered, costs to abide the event, on the ground that the plaintiff did not prove by a preponderance of evidence that he was a passenger.

In re GIFUNI. (Supreme Court, Appellate Division, First Department. October 30, 1908.) In the matter of Joseph Gifuni. No opinion. Reference ordered. Settle order on notice.

GILCHRIST, Appellant, v. O'NEIL et al., Respondents. (Supreme Court, Appellate Division, First Department. November 6, 1908) Action by William K. Gilchrist against Simon J. O'Neil and others. A. Gilhooly, for appellant. H. S. Marshall, for respondents. No opinion. Judgment affirmed, with costs. Order filed.

GILMORE, Respondent, v. WAGNER, Appellant. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by Alexander Gilmore, Jr., against Cecelia Wagner. No opinion. Judgment and order unanimously affirmed, with costs.

In re GILROY, Com'r of Public Works. (Supreme Court, Appellate Division, Second De partment. October 22, 1908.) In the matter of the Petition of Thomas F. Gilroy, commissioner of public works of the city of New York, etc. Eighth supplemental proceeding. Parcel No. 184. No opinion. Order (112 N. Y. Supp. 111) affirmed, with $10 costs and disbursements.

GOODMAN et al., Appellants, v. DYAR, Reopin-spondent. (Supreme Court, Appellate Division, First Department. November 6, 1908.) Action by Edmund L. Goodman and another against Harrison G. Dyar. C. L. Craig, for appellants, J. S. Montgomery, for respondent. No opinion. Judgment and order affirmed, with costs. Or der filed.

In re GERLICH. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) In the matter of the application of Charles Gerlich for permission to appeal from the judgment of a Municipal Court in the bor-Court, Appellate Division, First Department. GORDON et al. v. LYNCH. (Supreme ough of Brooklyn, etc. No opinion. Motion October 16, 1908.) Action by Morris J. Gordenied, on the ground of lack of power. don and another against Fannie G. Lynch. No Motion denied, with $10 costs. opinion. Order filed.

GERSKI, Respondent, v. SLISZ et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. November 11, 1908.) Action by Louis Gerski, by guardian, etc., against Stanislaus Slisz and another.

GORING, Respondent, v. UTICA GAS & ELECTRIC CO., Appellant. (Supreme Court,

Appellate Division, Fourth Department. October 7, 1908.) Action by Albert Goring against the Utica Gas & Electric Company. No opinion. Judgment and order affirmed, with costs.

GRAEF, Appellant, V. BROOKLYN HEIGHTS R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. October 22, 1908.) Action by Bernard Graef against the Brooklyn Heights Railroad Company. No opinion. Motion granted.

GREAT NORTHERN MOULDING CO., Respondent, v. BONEWUR, Appellant. (Action No. 2.) (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by the Great Northern Moulding Company against Solomon Bonewur. No opinion. Appeal dismissed, with costs. See, also, 112 N. Y. Supp. 466.

GREENBERG, Respondent, V. GOLDSTEIN, Appellant. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by Alex. B. Greenberg against Barnett Goldstein. No opinion. Motion denied, with $10 costs.

GREENE, Respondent, v. MERCANTILE TRUST CO. et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. November 11, 1908.) Action by Francis V. Greene against the Mercantile Trust Company and others. No opinion. Interlocutory judg ment (111 N. Y. Supp. 802) affirmed, with costs, with leave to the defendants to plead over upon payment of the costs of the demurrer and of this appeal.

GUTERMAN V. CORRIGAN. (Supreme Court, Appellate Division. First Department. October 30, 1908.) Action by Philip Guterman against John P. Corrigan. No opinion. tion granted, with $10 costs. Order filed.

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HANAN, Appellant, v. LONG, Respondent, et al. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by Blossie A. Hanan, individually and as surviving executrix of Marcus Hanan, deceased, and as executrix, etc., of Jennie Hanan, deceased, against Richard W. Long and another. No opinion. Judgment affirmed, with costs.

HANAN v. LONG et al. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by Blossie A. Hanan, individually and as executrix, etc., against Richard W. Long and others. No opinion. Interlucutory judgment affirmed, with costs.

HANLEY, Respondent, v. UTICA & M. VAL LEY RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 7, 1908.) Action by Thomas Hanley against the Utica & Mohawk Valley Railway Company. No opinion. Judgment and order affirmed, with costs.

Division, First Department. October 16, 1908.) Action by Edward Harding and another against Katherine N. Churchman. A. S. Hamlin, for appellant. D. Campbell, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed.

HART v. A. L. CLARKE & CO. (Supreme Court, Appellate Division, First Department. October 16, 1908.) Action by Henry Hart against A. L. Clarke & Company. No opinion. Motion granted. Settle order on notice. See, also, 111 N. Y. Supp. 886.

HARTMETZ, Respondent, v. BUFFALO EXPANDED METAL CO., Appellant (Supreme Court, Appellate Division, Fourth Department. November 11, 1908.) Action by Fred Hartmetz against the Buffalo Expanded Metal Company. No opinion. Order affirmed, with

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HATHORN et al. v. NATURAL CARBONIC GAS CO. (Supreme Court, Appellate Division, Third Department. September 15, 1908.) Action by Emily H. Hathorn and another against the Natural Carbonic Gas Company. With this case has been consolidated in this court cases bearing titles as follows: People of the State of New York v. Natural Carbonic Gas Company. Same v. New York Carbonic Acid Gas Company. Same v. Geysers Natural Gas Company of Saratoga Springs, New York. Same v. Lincoln Spring Company. Same v. Harry M. Levengston.

PER CURIAM. Arguments set down for September 17th, at 3 p. m. Meantime stay of the enforcement of the injunction order vacatHARDING et al., Respondents, v. CHURCH-ed, with leave to the defendants upon the arguMAN, Appellant. (Supreme Court, Appellate ment to apply for a further stay of the in

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