and 132 New York State Reporter CORBALLY, Respondent, v. ERIE R. CO., | Department. May 11, 1906.) Action by NaAppellant. (Supreme Court, Appellate Divi- jeeb M. Diab against Anton A. Lufty and othsion, Second Department. April 20, 1906.) Ac- ers. J. W. Osborne, for appellant. H L. tion by James W. Corbally against the Erie Kringle, for respondents. No opinion. Order Railroad Company. No opinion. Judgment modi- affirmed, with $10 costs and disbursements. fied, by deducting the amount of the extra al- Order filed. lowance, for want of power in the trial court to grant the same, and judgment, as modified, and order, unanimously affirmed, without costs. CORNWALL, Respondent, v. NEW YORK PER CURIAM. Order affirmed, with costs. DIEHL, Appellant, v. CITY OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by George Diehl, Jr., against the city of New York. T. F. Wentworth, for appellant. T. Connoly, for respondent. PER CURIAM. Order affirmed, with costs and disbursements. Order filed. O'BRIEN, P. J., and CLARKE, J., dissent. PER BOX CO., Appellant. (Supreme Court, DASSAU, Respondent, v. NEW YORK ICE CO., Appellant. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Ac-Appellate Division, Second Department. April tion by John Dassau against the New York Ice 20, 1906.), Action by Conrad Doersch against Company. J. W. Hawes, for appellant. J. A. the Central Paper Box Company. No opinion. Douglas, for respondent. No opinion. Judg- Judgment affirmed, with costs. ment and order reversed, new trial ordered, costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered, including costs, etc., to $4,177.20, in which event judgment, as so modified, and order, affirmed, without costs. Settle order on notice. DE AGRAMONTE, Respondent, v. CITY OF MT. VERNON, Appellant. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Louisa De Agramonte against the city of Mt. Vernon. No opinion. Appeal dismissed, without costs. DE BARBIERI, Respondent, v. SOCIETA ITALIANA GIUSEPPE MAZZINI DI MUTUO SOCCORSO, Appellant. (Supreme Court. Appellate Division, First Department. April 6, 1906.) Action by Maria De Barbieri, as administratrix, against the Societa Italiana Giuseppe Mazzini di Mutuo Soccorso. S. L. Samuels, for appellant. J. J. Freschi, for respondent. No opinion. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered, including costs, to $499.02, in which event judgment, as modified, and order, affirmed, without costs. Settle order on notice. DEMMERLE, Appellant, v. CITY OF NEW YORK et al., Respondents. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Charles C. Demmerle against the city of New York and others. L. L. Kellogg, for appellant. G. L. Sterling, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. DENIKE y. DENIKE. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) In the matter of supplementary proceedings by Abraham Denike, judgment creditor, against Charles W. Denike, judgment debtor. No opinion. Motion denied, without costs. DIAB, Appellant, v. LUFTY et al., Respondents. (Supreme Court, Appellate Division, First DONNELLY, Appellant, v. HELLMAN, Respondent. (Supreme Court, Appellate Division, Second Department. April 27, 1906.) Action by John H. Donnelly against Myer Hellman. PER CURIAM. We decline to consider this appeal for the reasons, first, it does not contain all the evidence given upon the trial, as required (Laws 1902, p. 1580, c. 580); second, no case by section 317 of the Municipal Court Act has been settled, as required by section 318; third, the return does not have indorsed thereon the allowance of the justice before whom the action was tried, as required by sections 317 and 318. Appeal dismissed, with costs. HOOKER, J., concurs in result. In re DONOHUE'S WILL. (Supreme Court, Appellate Division, Second Department. April 20, 1906) In the matter of the probate of the last will and testament of George W. Donohue, deceased. No opinion. Judgment affirmed, with costs. DOOHER, Respondent, v. BARRY, Appellant._ (Supreme Court, Appellate Division, Second Department. April 27, 1906.) __ Action by Anthony J. Dooher against John T. Barry. No opinion. Judgment of the Municipal Court affirmed, with costs. In re DOREMUS. (Supreme Court, Appel1906.) In the matter of David I. Doremus. No late Division, First Department. April 25, opinion. Motion denied on payment of $10 costs. Leave given to apply to the court below to open default. Order filed. DORF et al., Appellants, v. HENRY MILES & SONS, Respondent. (Supreme Court, Appellate Division, Second Department. April 20. 1906.) Action by Max Dorf and David Baron against Henry Miles & Sons. No opinion. Judgment affirmed, with costs. DOWNEY, Appellant, v. HODGINS et al.,, & Peterson, for appellants. Abraham H. SoloRespondents. (Supreme Court, Appellate Divi- taroff, for respondent. sion, First Department. March 9, 1906.) Action by Patrick H. Downey against William H. Hodgins and another. D. L. Weil, for appellant. T. Farley, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. DOYLE, Appellant, v. DELANEY, Respondent. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by Thomas S. Doyle against Joseph M. Delaney. R. L. Cutting, for appellant. W. J. Barr, for responuent. No opinion. Order affirmed, with $10 costs and disbursements. DUFFY, Appellant, v. TODD et al., Respondents. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) Action by Benjamin J. Duffy against Caroline E. Todd and others. No opinion. Judgment and order unanimously affirmed, with costs. DUTCHESS COUNTY, Appellant, v. STATE, Respondent. (Supreme Court, Appellate Division, Third Department. March 7, 1906.) Action by Dutchess county against the state of New York. No opinion. Judgment unanimously affirmed, with costs to the respondent. EBLING BREWING CO., Respondent, v. NEW YORK CITY INTERBOROUGH R. CO., Appellant. Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by the Ebling Brewing Company against the New York City Interborough Railroad Company. G. W. Wickersham, for appellant. H. Nathan, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. EISIG, Respondent, v. SMITH, Appellant. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action' by Monash Eisig against John or Isaac Smith. No opinion. Judgment of the Municipal Court affirmed, with costs. ENEQUIST, Respondent, v. CITY OF NEW YORK, Appellant. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by John Enequist against the city of New York. No opinion. Judgment of the Municipal Court affirmed, with costs. ENEQUIST, v. READ HOLLIDAY & SONS, Limited, et al. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Erik Enequist against Read Holliday & Sons, Limited, and others; Read Holliday, as trustee, etc. No opinion. Order affirmed, with $10 costs and disbursements. ENGELBERG, Respondent, v. CAVANAGH BROS. & CO., Appellants. (Supreme Court, Appellate Term. April 24, 1906.) Appeal from Municipal Court, Borough of Manhattan, Fifth District. Action by Kopel Engelberg against Cavanagh Bros. & Co. From a judgment for plaintiff, defendants appeal. Affirmed. Steiner SCOTT, P. J. There was nothing in this case except a question of fact, and I see no reason for disturbing the verdict of the jury. In my opinion tne judgment should be affirmed, with costs. BISCHOFF, J., concurs. TRUAX, J. (dissenting). The plaintiff contracted to make for the defendant a quantity of belts out of the "best white oak tanned strap leather, government standard, weighing not less than six ounces to the square foot." The said belts were to be of "dark russet and equal in quality to that shown in the standard sample." There is no evidence in the case that the leather was "government standard," and the evidence in the case shows that the belts were made out of leather weighing less than six ounces to the square foot, and that they were not of dark russet color but were light russet. The plaintiff, not having kept his contract, cannot recover under it. Judgment appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. In re ENNIS et al. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) In the matter of the application of Thomas A. Ennis and Charles F. Stoppani to vacate an order for the examination of John J. Roach. No opinion. This appeal may be withdrawn on payment of $10 costs and disbursements. FANNING, Respondent, v. VARICK CONTRACTING CO., Appellant. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by Thomas J. Fanning against the Varick Contracting Company. E. Russell, for appellant. M. J. Farley, for respondent. No opinion. Judgment affirmed, with costs. Order filed. Action by FARRELL, Respondent, v. GASKILL, Appellant. (Supreme Court, Appellate Division, Thomas F. Farrell against Georgie E. Gaskill. First Department. May 11, 1906.) R. L. Cutting, for appellant. P. Davis, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. In re FAY. (Supreme Court, Appellate Division, Fourth Department. May 2, 1906.) In the matter of Edward Leo Fay, an attorney. No opinion. Upon reading and filing certified copy of the record of conviction of said Edward Leo Fay of a felony, he is disbarred and removed from his office of attorney and counselor at law, and his name ordered stricken from the roll of attorneys and counselors. FELDMAN, Respondent, v. GOLDBERG, Appellant. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Samuel Feldman against Schalam Goldberg. No opinion. Judgment and order of the County Court of Kings county affirmed, with costs. FELTENSTEIN, Appellant, v. ERNST et al., Respondents. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by Sidonia Feltenstein against Moritz and 132 New York State Reporter L. Ernst and another. M. Feltenstein, for ap O'BRIEN, P. J., dissents. TORGESEN, Appellant, v. SCHULTZ, Respondent. (Supreme Court. Appellate Division, First Department. April 6, 1906.) Action by Dene Torgesen against Carl H. Schultz. H. W. Taft, for appellant. C. C. Nadal, for respondent. No opinion. Judgment affirmed, with costs. Order filed. FERM, Appellant, v. NEW YORK, O. & W. RY. CO., Respondent. (Supreme Court, Appel- TERBORO R. CO. (Supreme Court, Appellate FOX et al., v. NEW YORK CITY INlate Division, Second Department. April 20, 1906.) Action by Anna C. Ferm against the Division, First Department. April 25, 1906.) New York, Ontario & Western Railway Com-Action by Frederick P. Fox and another against pany. No opinion. The defendant's motion to the New York City Interboro Railroad Comchange the place of trial for the convenience pany. No opinion. Motion granted. Questions of witnesses should have been denied for laches, to be certified on settlement of order. Settle because of the unexplained delay of 13 months order on notice. See 98 N. Y. Supp. 338. after joinder of issue. Order reversed, with $10 costs and disbursements, and motion denied, with costs. FIRESTONE, Respondent, v. REALTY ASSOCIATES, Appellant. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by Nachman Firestone against the Realty Associates. No opinion. Judgment and order unanimously affirmed, with costs. FRANKLIN et al., Respondents, v. LEITER, Appellant, et al. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by B. Franklin and another against A. M. Beard, for Joseph Leiter, impleaded, etc. appellant. E. L. Mooney, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. FREER, Appellant, v. STATE, Respondent. FIRST NAT. BANK OF BINGHAMTON, (Supreme Court, Appellate Division, Third DeRespondent, v. SUGERMAN, Appellant. (Su-partment. May 2, 1906.) Action by William preme Court, Appellate Division, Third Depart- B. Freer against the state of New York. No ment. May. 2, 1906.) Action by the First opinion. Order unanimously affirmed, without National Bank of Binghamton against Philip costs. Sugerman. PER CURIAM. Judgment affirmed, with costs. KELLOGG, J., dissents. PARKER, P. J., not voting. FREER, Appellant, v. STATE, Respondent. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) Action by William B. Freer against the state of New York. No opinion. Judgment unanimously affirmed, with costs. FIRST NAT. BANK OF OSSINING. Respondent, v. HOAG, Appellant, et al. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by the First National Bank of Ossining, formerly the First National Bank of Sing Sing, against John Hoag, impleaded, etc. No opinion. Judgment affirm-of New York. T. McIlvaine, for appellant. T. ed, with costs. FITZPATRICK, Respondent, v. OLDNER et al., Appellants. (Supreme Court, Appellate DiVision, Second Department. April 20, 1906.) Action by Rose L. Fitzpatrick against John G. Oldner and Mollie Oldner. No opinion. Judgment of the Municipal Court affirmed, with costs. FLASH, Respondent, v. EARLY, Appellant (two cases). (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Actions by Oscar S. Flash against Joseph N. Early. No opinion. Judgments of the Municipal Court unanimously affirmed, with costs. FOLEY, Appellant, v. SMITH, Respondent. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by John C. Foley against Thomas F. Smith, as clerk, etc. M. D. Steuer. for appellant. T. Connoly, for respondent. No opinion. Order affirmed, with $50 costs and disbursements. Order filed. FRIEDMAN, Appellant, v. CITY OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Benjamin Friedman against the city Connoly, for respondent. No opinion. Judgment affirmed, with costs. Order filed. GARRETT, Respondent, v. COCKERILL, Appellant. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Ae tion by Michael Garrett against John F. Cockerill. F. B. Campbell, for appellant. B. G. Heyn, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Or der filed. GAUSE, Appellant, v. COMMONWEALTH TRUST CO., Respondent. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by Harry T. Gause against the Commonwealth Trust Company. H. Taylor, for appellant. C. E. Souther, for respond. ent. No opinion. Orders affirmed, with $10 costs and disbursements. Order filed. See 97 N. Y. Supp. 1091. GAUSE v. COMMONWEALTH TRUST CO. (Supreme Court, Appellate Division, First De partment. April 6, 1906.) Action by Harry T. Gause against the Commonwealth Trust Company. No opinion. Application denied, with $10 costs. Order filed. GENEVA MINERAL SPRINGS CO., Limited, v. STEELE et al. (Supreme Court, Appellate Division, Fourth Department. March 7, 1906.) Action by the Geneva Mineral Springs Company, Limited, against Charles A. Steele and others. No opinion. Order affirmed, without costs. See 97 N. Y. Supp. 996. GEO. A. OHL & CO. Appellant, v. BROOKLYN HEIGHTS R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. May 9, 1906.) Appeal from Municipal Court, Borough of Brooklyn, First District. Action by the George A. Ohl & Co. against the Brooklyn Heights Railroad Company. From a judgment dismissing the complaint, plaintiff appeals. Reversed, and new trial or dered. Raphael Link, for appellant. H. F. Ives, for respondent. WOODWARD, J. The plaintiff was nonsuited in an action to recover damages to personal property due to defendant's negligence, on the ground that the evidence failed to show freedom from contributory negligence. I think the evidence showed that the plaintiff's driver exercised some degree of care under the circumstances of the case and that he was entitled to go to the jury. The judgment should be reversed, and a new trial ordered, costs to abide the event. GILLIAM v. DYETT et al. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Anna T. Gilliam against James S. Dyett and others. No opinion. Motion granted. Order flled. GLANCKOFF, Respondent, v. SCHULTZ, Appellant. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Oscar Glanckoff against Carl R. Schultz. T. Hansen, for appellant. E. J. Myers, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. GLEASON, Respondent, v. MAYHEW, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 7, 1906.) Action by Henry N. Gleason against William Mayhew. No opinion. Judgment affirmed, with costs. GRIFFIN, Appellant, v. NEW YORK CITY RY. CO., Respondent. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by Henry P. Griffin against the New York City Railway Company. J. D. Lannon, for appellant. B. H. Ames, for respondent. O opinion. Judgment and order affirmed, with costs. Order filed. GRUEN, Appellant, v. TRUSTEES OF PEABODY EDUCATION FUND, Respondent. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by Frank C. Gruen against the trustees of Peabody Edu cation Fund. G. W. Carr, for appellant. S. Evarts, for respondent. No opinion. Order and judgment affirmed, with costs. Order filed. GUTHEIL, Respondent, v. CITY OF NEW YORK, Appellant. (Supreme Court, Appellate Action by John J. Gutheil against the city of Division, Second Department. April 20, 1906.) New York. No opinion. Motion to dismiss appeal granted, with $10 costs. GUTKES, Appellant, v. MORRIS et al., Respondents. (Supreme Court, Appellate Division, Second Department. April 27, 1906.) Action by August H. Gutkes against Nelson Morris Interlocutory judgand others. No opinion. ment affirmed, with costs, upon the opinion of Mr. Justice Gaynor at Special Term. 93 N. Y. Supp. 254. GUTKES, Appellant, v. NEW YORK PRODUCE EXCH., Respondent, et al. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by August H. Gutkes against the New York Produce Exchange, impleaded, etc. No opinion. Interlocutory judg ment affirmed, with costs. See 93 N. Y. Supp. 254. HAIGH v. WHITLOCK. (Supreme Court, Appellate Division, First Department. April 25, 1906.) Action by Joseph L. Haigh against Denjamin M. Whitlock. No opinion. Appeal dismissed, with $10 costs. Order filed. HALLORAN. Respondent, v. STRAUS et al., Appellants. (Supreme Court, Appellate Division, First Department. March 9, 1906.) Action by Mary A. Halloran against Isidor Straus and another. E. E. Wise, for appellants. A. Stickney, Jr., for respondent. PER CURIAM. Judgment and order affirmed, with costs. INGRAHAM, J., dissents. HANDIBODE, Respondent, v. BURKE et al., Appellants. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Peter Handibode, Jr., against Luke A. Burke and others. W. F. Kimber, for appellants. L. L. Kellogg, for respondent. No opinion. Judgment affirmed, with costs. Order filed. HARRISON, Respondent, v. JACOBS, Appellant. (Supreme Court, Appellate Division, Fourth Department. March 14, 1906.) Action by Myron E. Harrison against Bertram D. Jacobs. PER CURIAM. Judgment affirmed, with costs. MCLENNAN, P. J., not voting. HAWES, Respondent, v. CORPORATION LIQUIDATING CO., Appellant. (Supreme Court, Appellate Division, First Department. May 11, 1906.) Action by Gilbert R. Hawes against the Corporation Liquidating Company. L. Frankel, for appellant. G. R. Hawes, for and 132 New York State Reporter respondent. No opinion. Judgment and order affirmed, with costs. Order filed. In re HAWLEY et al. (Supreme Court, Appellate Division, Fourth Department. March 7, 1906.) In the matter of judicial settlement of the accounts of Nora C. Hawley and another, as, etc., of William S. Hawley, deceased. No opinion. Decision and remittitur amended, so as to allow a full bill of costs to the adult respondents and $50 costs and disbursements to the special guardian, against the appellant personally. HILDRETH v. CITY OF NEW YORK. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Percy S. Hildreth against the city of New York. No opinion. Motion granted. Order filed. In re HIRSCH. (Supreme Court, Appellate Division, First Department. April 6, 1906.) In the matter of Ferdinand Hirsch. No opinion. Motion granted, as stated in memorandum per curiam. Settle order on notice. PER CURIAM. Judgment and order affirmed, with costs. Order filed. INGRAHAM, J., dissents. = HORN, et al., Respondents, v. THOMAS R. LEVIS & CO., Appellants. (Supreme Court, Appellate Division, Fourth Department. May 2, 1906.) Action by James T. Horn and another against Thomas R. Levis & Co. No opinion. Judgment and order affirmed, with costs. HORN, Appellant, v. WORDEN et al., Respondents. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) Action by Charles F. W. Horn against Henry Worden, Wiliam S. Worden, and Edwin J. Worden. PER CURIAM. Judgment and order unanimously affirmed, with costs. KELLOGG, J., not sitting. HORRMANN et al. v. FURGUESON et al. (Supreme Court, Appellate Division, Second Department. April 20, 1906.) Action by William Horrmann and William K. Leicht, as surviving trustees, etc., against Cornelius Furgueson, Jr., etc., and others. No opinion. Order, so far as appealed from, affirmed, with costs. HOUSE et al., Appellants, v. CITY OF ONEIDA et al., Respondents. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) Action by Charles House and others against the city of Oneida and others. PER CURIAM. Judgment affirmed, with costs. PARKER, P. J., not voting. Court, Appellate Division, Fourth Department. HUGHES v. HAVENS et al. (Supreme March 14, 1906.) Action by Evan Hughes HOFFMAN HOUSE, NEW YORK, Re- against Herbert E. Havens and another. spondent, V. MANHATTAN STORAGE & PER CURIAM. Plaintiff's exception overWAREHOUSE CO. et al., Appellants. (Su- ruled, motion for new trial denied, and judg preme Court, Appellate Division, First Department ordered for the defendants, with costs. ment. March 9, 1906.) Action by the Hoffman House, New York, against the Manhattan Storage & Warehouse Company and Rose L. Barkley. J. J. Kirby, for appellants. A. A. Wray, for respondent. No opinion. Judgment affirmed, with costs. Order filed. HOLSAPPLE, Appellant,_v. AMERICAN HIDE & LEATHER CO. Respondent. (Supreme Court, Appellate Division, Third Department. May 2, 1906.) Action by Ida M. Holsapple, as administratrix. etc., against the American Hide & Leather Company. No opinion. Judgment unanimously affirmed, with costs. HOLSGROVE, Respondent, v. INTERURBAN ST. R. CO., Appellant. (Supreme Court, Appellate Division, First Department. April 6, 1906.) Action by Jeremiah Holsgrove against the Interurban Street Railroad Company. B. H. Ames, for appellant. H. A. Powell, for respondent. MCLENNAN, P. J., not voting. In re HULL. (Supreme Court, Appellate Division, Third Department. March 7, 1906.) In the matter of the final accounting of James Hull, as executor of the last will of Mary E. Hull, deceased. No opinion. Decree unanimously affirmed, with costs to the contestant to be paid out of the estate. See S9 N. Y. Supp. 939. HULL, Respondent, v. NEW YORK CENT. & H. R. R. Co., Appellant. (Supreme Court, Appellate Division, Fourth Department. May 2 1906.) Action by S. Augusta Hull against the New York Central & Hudson River Railroad Company. PER CURIAM. Judgment and order affirmed, with costs. MCLENNAN, P. J., and NASH, J., dissent, and vote for reversal on the ground that the |