and 146 New York State Reporter HOLMES, Appellant, v. COHEN, Respond ent. (Supreme Court, Appellate Division. Second Department. October 9, 1908.) Action by Robert Holmes, Jr., against Paul Cohen, as treasurer, etc. No opinion. Judgment of the Municipal Court affirmed by default, with costs. junction order until the hearing and deter- Department. October 9, 1908.) Action by the mination of the appeal. The stay of the en- Higgin Manufacturing Company against Walt forcement of the injunction orders is vacated er L. Fleishman and another. No opinion. from 8 o'clock p. m. on the 15th day of Sep- Motion denied. tember, upon condition that the defendants are permitted to post and keep upon the premises of the Hathorn Spring not to exceed two men at a time, as they may designate, during all the time until the argument of the appeal and the further order of the court. Such men to have the right to take measurements before the hour of 8 o'clock arrives. If such condition is not complied with, the defendants may apply orally upon the papers already presented to the court for a revivor of the stay of the injunction order, with the like privilege to the plaintiffs with reference to defendants' property. See 112 N. Y. Supp. 374. HATHORN et al. v. NATURAL CARBON HOTALING, Respondent, v. SYRACUSE & S. R. CO., Appellant. (Supreme Court. Ap pellate Division, Fourth Department. October 17, 1908.) Action by Alice Hotaling against the Syracuse & Suburban Railroad Company. PER CURIAM. Judgment and order reIC GAS CO. (Supreme Court, Appellate Diversed, and new trial ordered, with costs to vision, Third Department. appellant to abide event, unless the plaintiff. September 25, within 20 days, stipulates to reduce the verdict 1908) Action by Emily H. Hathorn and another against the Natural Carbonic Gas Com- rendition thereof, in which event the judgment to the sum of $1,000 as of the date of the is modified accordingly, and, as so modified, is. together with the order, aflirmed, without costs of this appeal to either party.. pany. PER CURIAM. Motion for leave to appeal to Court of Appeals granted, and questions certified as follows: "First. Does the complaint state a cause of action other than under the statute hereinafter mentioned? Second. Does the complaint state a cause of action under Laws 1908, p. 1221, c. 429? Third. Is chapter 429, p. 1221. of the Laws of 1908, a constitutional enactment? Fourth. Did the Supreme Court have power to grant the preliminary injunction?" See, also, 112 N. Y. Supp. 374. HAYES et al., Appellants, v. A. BUSHNELL & CO., Respondent. (Supreme Court, Appellate Division, Fourth Department. Oc tober 17, 1908.) Action by Norman B. Hayes and another against A. Bushnell & Company. No opinion. Judgment affirmed, with costs. HEILPERIN, Respondent, v. LEVY et al., Appellants. (Supreme Court, Appellate Division, First Department. November 6, 1908) Action by Solomon Heilperin against Samuel Levy and others. S. Levy, for appellants. J. A. Seidman, for respondent. PER CURIAM. Appeal dismissed, with $10 costs and disbursements, on the ground that the order appealed from gives leave to renew, and the appellant has not exhausted the remedies thus given him. Order filed. In re HELLINGER. (Supreme Court, Appellate Division, First Department. November 6, 1908.) In the matter of Samuel Hellinger. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. HERRLICH v. HYMAN et al. (Supreme Court, Appellate Division, First Department. October 30, 1908.) Action by Philip Herrlich against Samuel Hyman and another. No opinion. Motion denied. Order filed. HIGGIN MFG. CO. v. FLEISHMAN et al. (Supreme Court, Appellate Division, Second In re HUGHES. (Supreme Court, Appe late Division, First Department. November 1908.) In the matter of Hackett Hughes, de ceased. No opinion. Order affirmed, with $10 tor personally. Order filed. costs and disbursements, to be paid by execu Appellants. (Supreme Court, Appellate DiviHUGHES, Respondent, v. PIERCE et al. sion, First Department. November 6, 1908) Action by Charles Hughes against John Pierce and another. F. V. Johnson, for appellants M. L. Malevinsky, for respondent. No opinion Judgment and orders affirmed, with costs. Or der filed. HULTS, Appellant, v. VAN DEVENTER 1133 In re JESSUP. (Supreme Court, Appellate Division, First Department. October 16, 1908.) In the matter of Henry W. Jessup. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. JOHN LACKNER CO., Respondent, v. SIMPSON CRAWFORD CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 16, 1908.) Action by the John Lackner Company against the Simpson Crawford Company. No opinion. Judgment of the Municipal Court affirmed, with costs. JONES v. CITY OF NEW YORK. (Supreme against the city of New York. JONES, Respondent, v. JONES, Appellant. No JORDAN, Respondent, v. ERIE R. CO., Appellant. (Supreme Court. Appellate Division, Fourth Department. September 30, 1908.) Action by Charles H. Jordan, as administator, etc., against the Erie Railroad Company. opinion. Motion to amend decision denied, without costs. No HYMAN, Respondent, v. THAIN, Appellant, et al. (Supreme Court, Appellate Division, First Department. October 16, 1908.) Action by David H. Hyman, as receiver, against AlA. exander Thain, impleaded with others. Thain, for appellant. E. D. Bryde, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. IMBRIE V. SCHLICHT COMBUSTION CO. (Supreme Court, Appellate Division, First KAUFMAN, Respondent, v. SMITH et al., Department. October 30, 1908.) Action by Appellants. (Supreme Court, Appellate DiviAndrew C. Imbrie against the Schlicht Com-sion, Second Department. October 16, 1908.) bustion Company. No opinion. Motion de- Action by Israel Kaufman against Julius Smith nied on terms stated in order. Order filed. JOSEPH LAURER BREWING CO. v. EHRESMAN. (Supreme Court, Appellate Division, Third Department. October 2, 1908.) Action by the Joseph Laurer Brewing Company against Daniel W. Ehresman. No opinion. Motion denied. INDUSTRIAL & GENERAL TRUST v. PACIFIC GAS & ELECTRIC CO. (Supreme Court. Appellate Division, First Department. October 16, 1908.) Action by the Industrial & General Trust against the Pacific Gas & Electric Company. No opinion. Motion denied, with $10 costs. Order filed. IRWIN, Respondent, v. HODGE et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. September 23, 1908.) Action by Iroquois Irwin against Herman T. Hodge and others. No opinion. Motion to dismiss appeal granted, with $10 costs. ISLEY, Appellant, v. GILBERT et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by John Isley against Maurice Gilbert and another. No opinion. Motion denied, on cerdition that the defendants perfect their appeal and place the cause on the calendar within 10 days; otherwise, motion granted, with $10 costs. etc. No and Hyman Director, copartners, KELLY, Respondent, v. KING et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. September 23, 1908.) Action by John M. Kelly against Fred B. King and another. No opinion. Motion for rearguMotion for leave ment denied, with $10 costs. to appeal to Court of Appeals denied. KENNEY, Respondent, v. SOUTH SHORE NATURAL GAS & FUEL CO., Appellant. (Supreme Court, Appellate Division, Fourth October 14, 1908.) Action by Department. Johanna Kenney against the South Shore Natural Gas & Fuel Company. PER CURIAM. Order affirmed, with $10 See, also, 126 App. costs and disbursements. Div. 236, 110 N. Y. Supp. 503. WILLIAMS and ROBSON, JJ., dissent. KIESOW, Respondent, V. NEW YORK CITY RY. CO. et al., Appellants. (Supreme Court, Appellate Division. First Department. and 146 New York State Reporter October 23, 1908.) Action by Annie F. Kiesow, as administratrix, against the New York City Railway Company and another. C. F. Brown and J. J. Mahoney, for appellants. F. Moss, for respondent. PER CURIAM. Judgment and order affirmed, with costs. Settle order on notice. INGRAHAM, J., dissents as to New York Mail Company. KILEY v. BROCKWAY et al. (Supreme Court, Appellate Division, Third Department. October 2, 1908.) Action by John J. Kiley against Edith Brockway, as executrix, etc., and others. No opinion. Motion denied." KINLOCH PAINT CO., Respondent, V. HADDEN, Appellant. (Supreme Court, Appellate Division, Fourth Department. November 11, 1908.) Action by the Kinloch Paint Company against Sam Hadden. No opinion. Judgment affirmed, with costs. New trial to be had in City Court of the city of Fulton on Tuesday, November 24, 1908, at 10 o'clock in the forenoon. KINSEY, Respondent, v. MEANEY et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. October 14, 1908.) Action by Russell L. Kinsey against John F. Meaney and others. No opinion. Judgment affirmed, with costs. See, also, 98 App. Div. 420, 90 N. Y. Supp. 327. KIRK, Appellant, v. CRAMPTON et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 7, 1908.) Action by William B. Kirk against Anna S. Crampton and others. PER CURIAM. Judgment modified, so as to provide that the plaintiff also, and his heirs and assigns forever, have an easement and a full and free right of way over the one-half of the premises held to belong to the defendant Nearing, and, as so modified, affirmed, without costs of this appeal to either party. KISSAM, Appellant, v. UNITED STATES PRINTING CO. OF OHIO et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by William Kissam against the United States Printing Company of Ohio and others. No opinion. Judgment affirmed, with costs. KNICKERBOCKER INV. CO. v. VOORHEES et al. (Supreme Court, Appellate Division, First Department. October 16, 1908.) Action by the Knickerbocker Investment Company against Foster M. Voorhees and others. No opinion. Motion denied, with $10 costs. Order filed. See, also, 100 App. Div. 414, 91 N. Y. Supp. 816; 121 App. Div. 690, 106 N. Y. Supp. 455. In re KNOLLIN. (Supreme Court, Appellate Division, Fourth Department. October 7. 1908.) In the matter of the application of George B. Knollin, for a writ of mandamus. PER CURIAM. Order affirmed, with costs, on the opinion of Andrews, J., in 112 N. Y. Supp. 332. SPRING and KRUSE, JJ., dissent. KONIG, Respondent, v. HECLA IRON WORKS, Appellant. (Supreme Court Appellate Division, Second Department. October 16, 1908.) Action by Pauline Konig, as adminis tratrix, etc., of George Konig, deceased, against the Hecla Iron Works. No opinion. Judgment and order reversed, and new trial granted, costs to abide the event, on the ground that the de lirium tremens of which the plaintiff's intestate died was caused by an excessive use of alcoholic liquor, and not by the injury which he received. LAKE, Appellant, v. MONROE COUNTY, Respondent. (Supreme Court, Appellate Division, Fourth Department. October 17, 1908) Action by Thomas H. Lake against the county of Monroe. No opinion. Judgment affirmed. with costs. In re LAKE SHORE & M. S. RY. CO. (Spreme Court, Appellate Division, Fourth De partment. October 14, 1908.) In the matter of the application of the Lake Shore & Michigan Southern Railway Company for the appointment of commissioners, etc. PER CURIAM. Order (53 Misc. Rep. 34) 103 N. Y. Supp. 294) reversed, report of com missioners set aside, and matter remitted to the Special Term for the appointment of new commissioners, without costs of this appeal to either party. Held that, in view of the affidavit made by Commissioner Dye, he was an improper person to have acted as commissioner. LANTRY v. MEDE. (Supreme Court, Appellate Division, First Department. October 16, 1908.) Action by Francis J. Lantry against Albert Mede. No opinion. Motion granted. question certified. Order filed. See, also, 111 N. Y. Supp. 833. LARKIN, Respondent, v. SHELDON, APpellant. (Supreme Court, Appellate Division, Fourth Department. September 30, 1908) Action by John D. Larkin against B. H. Sheldon No opinion. Order (59 Misc. Rep. 406, 109 N. Y. Supp. 1105) affirmed, with $10 costs and disbursements. tion by Charles La Rue against Frederick J. KRUSE and ROBSON, JJ., vote for reWheeler. No opinion. Judgment of the Mu-versal on the ground that, although there is evinicipal Court affirmed by default, with costs. LATIMER, Respondent, v. DELAWARE, L & W. R. Co., Appellant. (Supreme Court, Ap. pellate Division, Fourth Department. October 7, 1908.) Action by Alma Latimer, as administratrix, etc., against the Delaware, Lackawanna & Western Railroad Company. No opinion. Judgment and order affirmed, with costs. LEVY, Respondent, v. TOYODA et al., Ap pellants. (Supreme Court, Appellate Division, First Department. November 6, 1908.) Action by Herman H. Levy against Henry Toyoda and others. No opinion. N. R. Lindheim, for appellants. C. Meyer, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. LEWIN, Respondent, v. MEYEROWITZ, Appellant. (Supreme Court. Appellate Division, Fourth Department. October 14, 1908.) Action by Harry Lewin against Michael Meyerowitz. PER CURIAM. Interlocutory judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to plead over upon payment of the costs of the demurrer and of this appeal. Held, that the letter which constitutes the alleged libel is not libelous per se. LINDENBORN V. VOGEL. (Supreme Court, Appellate Division, First Department. October 30, 1908.) Action by Solomon Lindenboru against Lillian B. Vogel. No opinion. Application granted. Order signed. See, also, 110 N. Y. Supp. 970. LIPSCOMBE v. LANE. (Supreme Court, Appellate Division, First Department. October 16, 1908.) Action by Charles E. Lipscombe against Derick Lane. With this case has been consolidated in this court cases bearing titles as follows: Elizabeth McDermott v. Andress S. Floyd and others. Conrad J. Kellar v. Charles P. Faber. In re Benjamin Sanders. Annie Stanton, as administratrix, v. the New York Edison Company. No opinions. Motions granted, with $10 costs in each case. Orders filed. dence upon which the jury might have found that the defendant was negligent, yet in view of the charge of the trial court, which became the law of the case, "that there is no evidence in the case that, even if there had been a guard rail there, it would have prevented the rider from falling into the river," the finding of the jury that the defendant was negligent cannot be sustained. SPRING, J., dissents, and votes for affirmance. LOGAN, Respondent, v. LOGAN, Appellant. (Supreme Court, Appellate Division, First Department. November 6, 1908.) Action by Elizabeth Logan against Andrew Logan. G. H. Taylor, Jr., for appellant. C. De H. Brower, for respondent. No opinion. Judgment affirmed, with costs. Order filed. See, also, 125 App. Div. 724, 110 N. Y. Supp. 174. LOVE et al., Appellants, v. GLOBE HAT MFG. CO., Respondent. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by Samuel Love and others against the Globe Hat Manufacturing Company. No opinion. Motion denied, without costs. LOWING, Respondent, v. HOW, Appellant. (Supreme Court, Appellate Division, Fourth Department, November 11, 1908.) Action by Eliza S. Lowing, as devisee, etc., against Isabelle Lowing How, as executrix, etc. No opinion. Judgment affirmed, with costs. LUONGO, Appellant, v. DAVIS et al., Respondents. (Supreme Court, Appellate Division, First Department. November 6, 1908.) Action by Raffael Luongo against Hyman Davis and others. G. H. Taylor, Jr., for appellant. H. G. Wiley, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. LUST, Respondent, v. DRACHMAN, Appellant. (Supreme Court, Appellate Division, Second Department. October 16, 1908.) Action by Louis Lust against Hyman Drachman. Νο opinion. Judgment and order affirmed, with costs. LYONS BEET SUGAR REFINING CO., Appellant, v. CALKINS, Respondent. (Supreme Court, Appellate Division, Fourth DepartSeptember 23, 1908.) Action by the yous Beet Sugar Refining Company against John F. Calkins. No opinion. Order affirmed, with $10 costs, upon appellant's default. ment. October 14, 1908.) Action by Catharine Loeschauer, as administratrix, etc., gainst the New York Central & Hudson River Railroad Company, impleaded with the eity of North Tonawanda. PER CURIAM. Judgment and ordered reersed, and new trial ordered, with costs to ppellant to abide event. MCLENNAN, P. J., and WILLIAMS, J., rote for reversal on the ground that as matter of law the evidence fails to establish that the ppellant was guilty of negligence which was he proximate cause of the accident, and also ecause the evidence fails to identify the deeased as the person who fell from the bridge. and 146 New York State Reporter October 16, 1908.) Action by Josephine McCloskey, an infaut, by James F. McCloskey, her guardian ad litem, against the Degnon Contracting Company. No opinion. Judgment and order unanimously affirmed, with costs. MCCORMICK, Respondent, v. SYRACUSE RAPID TRANSIT RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 17, 1908.) Action by James A. McCormick against the Syracuse Rapid Transit Railway Company. PER CURIAM. Judgment of County Court and Municipal Court reversed, with costs. Held that, if plaintiff was entitled to a transfer from the Dudley to the Elmwood line, defendant's offer of a transfer to the latter line at South West street fully met its obligation; it appearing that the passage over its lines thus offered to plaintiff was over the most direct and a reasonably convenient route to his destination. SPRING and KRUSE, JJ., dissent. MCCORMICK. Respondent, v. SYRACUSE RAPID TRANSIT CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. November 11, 1908.) Action by James A. McCormick against the Syracuse Rapid Transit Company. No opinion. Motion for leave to appeal to Court of Appeals granted. MCDONALD, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 9, 1908.) Action by James McDonald against the New York Central & Hudson River Railroad Company. No opinion. Judgment and order unanimously affirmed, with costs. tion by Thomas McGrath, as administrator, etc.. of Margaret McGrath, deceased, against Abraham Remnek. No opinion. Judgment and order unanimously affirmed, with costs. McKANE, Appellant, v. DADY et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 22, 1908) Action by Theodore McKane against Michael J. Daly and others. No opinion. Orders affirmed, with $10 costs and disbursements. See, also, 112 N. Y. Supp. 650. MacMAHON, Respondent, v. MYERS et a Appellants. (Supreme Court, Appellate Div sion, First Department. October 16, 1983 Action by Stephen A. MacMahon against Stal S. Myers and others. S. S. Myers, for aper lants. A. Thain, for respondent. No opinie Order affirmed, with $10 costs and disburse ments. Order filed. See, also, 112 N. Y Supp. 1028. MAGAGNOS, Appellant, v. P. H. OHMEIS & CO., Respondents. (Supreme Court. Apper late Division, First Department. November & 1908.) Action by Everett Magagnos against P. H. Ohmeis & Co. J. F. McIntyre, for age lant. F. V. Johnson, for respondents. No epi ion. Judgment and order affirmed, with costs. Order filed. MAHER et al., Respondents, v. JONES, A pellant. (Supreme Court, Appellate Divisi Fourth Department. September 30, 1908) A tion by John L. Maher and others against Ro ert E. Jones. No opinion. Order affirmed, with $10 costs and disbursements. MCDOUGALL, Respondent, v. CITY OF MAHER et al., Respondents, v. JONES. A BUFFALO et al., Appellants. (Supreme Court, pellant. (Supreme Court, Appellate Division, Appellate Division, Fourth Department. Octo- Fourth Department. November 11, 1908) A ber 14, 1908.) Action by James S. McDougall tion by John L. Maher and others against Re against the city of Buffalo and another. Noert E. Jones. No opinion. Motion for rearopinion. Motion for reargument denied, with gument denied, with $10 costs. $10 costs. Motion for leave to appeal to Court leave to appeal to Court of Appeals denied. of Appeals denied. Motion for MAHON, Appellant, V. BROOKLYN Court, Appellate Division, Second Departme HEIGHTS R. CO., Respondent. (Supre October 16, 1908.) Action by John Maton against the Brooklyn Heights Railroad Con pany. No opinion. Order unanimously atfirmed, with costs. MAHONEY v. CITY OF NEW YORK. (S% preme Court, Appellate Division, First Depart ment. October 30, 1908.) Action by John Ma honey against the city of New York. No opiaion. Motion denied. Order filed. MAIMONE, Respondent, v. NEW YORK Appellate Division, First Department. October LIFE INS. CO., Appellant. (Supreme Cour the New York Life Insurance Company. C. S 16, 1908.) Action by Anthony Maimone agis Patrasch, for appellant. H. S. Bird, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. MAISCH, Respondent, v. CITY OF NEW YORK, Appellant. (Supreme Court, Appellate |