MEMORANDUM DECISIONS. ABORN et al. v. JANIS et al. (Supreme Court, Appellate Division, First Department. October 18, 1907.) Action by Milton Aborn and others against Elsie Janis and others. No opinion. Motion denied. Order filed. ABORN et al., Appellants, v. JANIS et al., Respondents. (Supreme Court, Appellate Division, First Department. November 22, 1907.) Action by Milton Aborn and others against Elsie Janis and others. A. Gross, for appellants. N. Burkan, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. AMERICAN FIDELITY CO., Appellant, v. WHITE, Respondent. (Supreme Court, Appellate Division, Fourth Department. Sept. 25, 1907.) Action by the American Fidelity Company against William F. White. No opinion. Motion to dismiss appeal denied. This being a nonenumerated motion, it was unnecessary to file and serve points before the argument, under rule 9 of this department. AMERICAN ICE CO., Appellant, v. CITY OF NEW YORK et al., Respondents. (Supreme Court, Appellate Division, First Department. November 8, 1907.) Action by the American Ice Company against the city of New ADAMS et al., Respondents, v. ELWOOD et York and another. A. Stickney, for appellant. No opinion. al., Appellants. (Supreme Court, Appellate Di-T Connoly for respondents. vision, Second Department. October 23, 1907.) Judgment affirmed, with costs. Order filed. Action by Mary Ann Adams and another, as executors, etc., of Walter Adams, deceased, against George A. Elwood and another. No opinion. Motion to punish for contempt denied, without costs, with leave to renew, if so advised. In re ANDERSON. (Supreme Court, Appellate Division, First Department. November 15, 1907.) In the matter of William H. Anderson. No opinion. Motion granted, with $10 costs. Order filed. and 140 New York State Reporter respondent. No opinion Judgment affirmed, with costs, with leave to de fendant to withdraw demurrer and to answer on payment of costs in this court and in the court below. Order filed. ATKINSON, Respondent, v. HEINE et al., [ ca & Sons. J. J. O'Connell, for appellants. G. Appellants. for (Supreme Court, Appellate Di- Hamburger, vision, First Department. November 8, 1907.) Action by William J. Atkinson against Arnold B. Heine and others. C. E. Rushmore, for appellants. A. S. Gilbert, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. AVON SPRINGS SANITARIUM CO. v. KELLOGG. (Supreme Court, Appellate Division, Fourth Department. October 9, 1907.) Action by the Avon Springs Sanitarium Company against J. Francis Kellogg. PER CURIAM. Defendant's exceptions overruled, and motion for new trial denied, and judgment ordered for plaintiff upon the verdict, with costs. MCLENNAN, P. J., dissents, for the reasons stated in dissenting opinion, reported at 119 App. Div. 560, 104 N. Y. Supp. 58. BALDWIN, Respondent, v. AMERICAN WOOLEN CO. OF NEW YORK, Appellant. (Supreme Court, Appellate Division, Fourth Department. October 16, 1907.) Action by Stephen J. Baldwin against the American Woolen Company of New York. PER CURIAM. Judgment and order affirmed, with costs. MCLENNAN, P. J., and KRUSE, J.. dissent, upon the ground that there is no evidence that the accident was caused by reason of the incompetency of Shattell at the time in question. BAMBERG v. INTERNATIONAL RY. CO. et al. (Supreme Court, Appellate Division, Fourth Department. November 13, 1907.) Action by Ernest Bamberg against the International Railway Company and others. No opinion. Motion for reargument denied, with $10 costs. BARR, Appellant, v. MEAD et al., Respondents (two cases). (Supreme Court, Appellate Division, First Department. November 8, 1907.) Actions by Harry P. Barr against John A. Mead and others. M. A. Ryan, for appellant. L. A. Gould, for respondents. No opinion. Orders affirmed, with $10 costs and disbursements. Orders filed. BARR v. SOFRANSKI. (Supreme Court, Appellate Division, First Department. November 15, 1907.) Action by William J. Barr, as trustee, against Eva Sofranski. No opinion. Motion granted, with $10 costs. Order filed. BARR et al., Respondents, v. VREDENBURG et al., Appellants., (Supreme Court, Appellate Division, Fourth Department. November 13, 1907.) Action by William Barr and another against Charles W. Vredenburg and another. No opinion. Judgment affirmed, with costs. BATTALIA, Respondent, V. RICCA & SONS, Appellants. (Supreme Court, Appellate Division. First Department. November 8, 1907.) Action by Leo H. Battalia against Ric BAYLEY, Appellant, v. CURTIS BROS LUMBER CO., Respondent. (Supreme Court Appellate Division, Second Department. O tober 11, 1907.) Action by Andrew Bayley against the Curtis Bros. Lumber Company. N opinion. Judgment of the Municipal Court a firmed by default, with costs. BAUER, Appellant, v. HAWES et al., Ee spondents. (Supreme Court, Appellate Division, First Department. November 8. 1907. Action by Louis Bauer against James A. Hawes as executor and others. H. V. Rutberford, for appellant, B. E. V. McCarty, for re spondent. No opinion. Judgment and order affirmed, with costs. Order filed. BAUER, Respondent, v. PARSONS et a Appellants. (Supreme Court, Appellate Divi sion, First Department. November 8, 1907 Action by Louis Bauer against Edwin Par sons and others. J. Byrne, for appellants. H V. Rutherford, for respondent. No opinion. Order affirmed, with $10 costs and disburse ments. Order filed. BAUER, Respondent, v. ST. JOHN, Appet Iant. (Supreme Court, Appellate Division, First Department. November 8, 1907.) As tion by Louis Bauer against Gamaliel C. St John. J. W. Hawes, for appellant. H. V. Rutherford, for respondent. No opinion. Or der affirmed, with $10 costs and disbursements. Order filed. BAUER v. YOST et al. (Supreme Court, Appellate Division, First Department. November 8, 1907.) Action by Louis Bauer against George E. Yost and others. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. BEATTY v. IRELAND et al. (Supreme Court, Appellate Division, First Department. October 18, 1907.) Action by Robert A. Beatty against John B. Ireland and another. No opinion. Motion granted, with $10 costs. Or der filed. BENEDICT et al., Respondents, v. STANFORD, Appellant. (Supreme Court, Appellate Division, First Department. October 25, 1907) Appeal from Special Term. Action by Seelye Benedict and others against Joseph M. Stanford. From an order granting an injunction, defendant appeals. Modified. C. E. Francis. for appellant. D. W. Richards, for respond ents. PER CURIAM. The order should be modified, by striking out the word "taking" from the enjoining clause, and by adding a clause to the effect that the injunction is granted upon condition that the plaintiffs increase their undertaking to $2,500 within five days from the service of the order, as modified by this court, and that upon their failure so to do the motion for the injunction be denied, and, as modified, affirmed, without costs. BENNETT, Appellant, v. BOWES, Respondent. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) Action by Norman W. Bennett, as administrator, etc., against Matthew P. Bowes. No opinion." Order modified, so as to strike out the leave therein granted to move for return of the $51 paid, and to authorize the defendant, within 20 days after service of this order, to serve an answer, and, as thus modified, affirmed, without costs to either party. BERCOVITZ, Appellant, v. CITY OF NEW YORK, Respondent. (Supreme Court, Appellate Division, First Department. November 8, 1907.) Action by Morris Bercovitz against the city of New York. C. Steckler, for appellant. T. Connoly, for respondent. No opinion. Order affirmed, with costs. Order filed. BETTS, Appellant, v. ABRAHAMS et al., Respondents. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) Action by Hiram W. Betts, as administrator, etc., of Emma J. Betts, deceased, against Abraham Abrahams and others. No opinion. Judgment and order unanimously affirmed, with costs. BIEBER, Appellant, v. GOLDBERG, Respondent, et al. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) Action by Gerson Bieber against Lewis Goldberg, impleaded with others. PER CURIAM. Order of the County Court of Kings county, granting leave to amend complaint, modified by striking out the imposition of $100 as terms of the amendment, and, as modified, affirmed, with $10 costs and disbursements to the appellant. Appeal from order refusing to resettle dismissed, without costs. See 104 N. Y. Supp. 1080. In re BLOOMFIELD ST. (Supreme Court, Appellate Division, First Department. November 8, 1907.) In the matter of Bloomfield street. etc. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. In re BOENING. (Supreme Court, Appellate Division. Second Department. October 4, 1907.). In the matter of William C. Boening. No opinion. Motion to dismiss appeal denied, without costs. In re BOENING. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) In the matter of William C. Boening. No opinion. Order affirmed, with $10 costs and disbursements. BOENING, Respondent, v. BOENING, Appellant (two cases). (Supreme Court, Appellate Division, Second Department. October 4, 1907.) Actions by Carrie C. Boening against William C. Boening. No opinion. Motions to dismiss appeals denied, without costs. BOENING, Respondent, v. BOENING, Appellant (two cases). (Supreme Court, Appellate Division, Second Department. October 4, 1907.) Actions by Carrie C. Boening against William C. Boening. No opinion. Orders affirmed, with $10 costs and disbursements. BONAFEDE, Respondent, v. UVALDE ASPHALT PAVING CO., Appellant. (Supreme Court, Appellate Di ion, First Department. October 25, 1907.) Action by Eduardo Bonafede against the Uvalde Asphalt Paving Company. N. L. Keach, for appellant. L. Cohn, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. BOOKSIN, Appellant, v. ROBINSON, Respondent. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) Action by Samuel Booksin against Robert J. Robinson. No opinion. Judgment of the Municipal Court affirmed, with costs. BOROUGH BANK OF BROOKLYN, Re BIEBER, Appellant, v. ROSENGARTEN, spondent, v. BORGENICHT et al., Appellants. Respondent. (Supreme Court, Appellate Divi (Supreme Court, Appellate Division, Second DeOctober 4, 1907.) partment. November 8, 1907.) sion, First Department. Action by the Action by Aaron Bieber against Philip' Rosen-Borough Bank of Brooklyn against Louis Borgarten. J. Manheimer, for appellant. M. Jaffe, firmed, with $10 costs and disbursements. genicht and another. No opinion. Order affor respondent. No opinion. Order affirmed, with costs. Order filed. BOSKOWITZ v. SULZBACHER et al. (Supreme Court, Appellate Division, First Department. November 15, 1907.) Action by Jesse L. Boskowitz against Joseph H. Sulzbacher, impleaded. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. BOTTOME v. NEELY et al. (Supreme Court, Appellate Division, First Department. November 8, 1907.) Action by Willard B. Bottome against James R. Neely and others. No opinion. Application granted, upon plaintiff's filing stipulation that upon affirmance judgment absolute shall be rendered against him. Order signed. and 140 New York State Reporter BOWE v. BOWE. (Supreme Court, Appellate Division, First Department. October 18, 1907.) Action by Michael A. Bowe against Stella Bowe. No opinion. Motion denied, with leave to renew after decision of motion to open default in the court below. BRACKIN, Respondent, v. MILLER et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. September 25, 1907.) Action by Mary Brackin, as administratrix, etc., against Clifford L. Miller and others. No opinion. Motion for leave to appeal to the Court of Appeals granted. PER CURIAM. Judgment and order rever ed, and new trial granted, with costs to appe! lant to abide event, upon the ground that the finding of the jury that the plaintiff was free from contributory negligence is against the weight of evidence. COCHRANE, J., dissents. SEWELL, J. not sitting. BRONOLD et al., Respondents, v. ENGLER Appellant. (Supreme Court, Appellate Division, Fourth Department. September 25, 1997) Action by Louis Bronold and others against August Engler. No opinion. Motion for leave to appeal to the Court of Appeals granted. See 105 N. Y. Supp. 508. BRADY, Respondent, v. DEMPSEY, Appellant, et al. (Supreme Court, Appellate Division, First Department. November 8, 1907.) Action by Susan Brady against James Demp- BROOKLYN UNION COAL CO., Respondsey, impleaded. T. M. Tyng, for appellant. Aent, v. DEMUTH GLASS MFG. CO., Appellant R. Latson, for respondent. No opinion. Judg-(Supreme Court, Appellate Division, Secord ment affirmed, with costs. Order filed. BRADY, Respondent, v. MAXWELL-BRISCOE MOTOR CO., Appellant. (Supreme Court, Appellate Division, Second Department. October 18, 1907.) Action by Arthur C. Brady against the Maxwell-Briscoe Motor Company. No opinion. Judgment and order unanimously affirmed, with costs. BREW, Respondent, v. BRISTOL, Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) Action by Emily A. Brew against George W. Bristol. No opinion. Judgment and order of the Municipal Court affirmed, with costs. BRIETTE, Respondent, v. RUTLAND R. CO., Appellant. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) Action by Ezra Briette against the Rutland Railroad Company. No opinion. Judgment and order unanimously affirmed, with costs. In re BRIGGS AVE. SCHOOL SITE. (Supreme Court, Appellate Division, First Department. October 18, 1907.) In the matter of the Briggs Avenue school site. No opinion. Reference ordered. Settle order on notice. In re BRISTOW. TEALE, Respondent, v. STOLL, Appellant. (Supreme Court, Appellate Division, Second Department. October 15, 1907.) In the matter of the judicial settlement of the account of Henry Bristow, public administrator, as administrator of the goods, chattels, and credits which were of Robert E. Boyd, deceased. Action by Charles E. Teale, public administrator and successor to Henry Bristow, against Louis Stoll. No opinion. Motion to resettle order granted. BRODERICK, Respondent, v. DELAWARE, L. & W. R. CO., Appellant. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) Action by John D. Broderick against the Delaware, Lackawanna & Western Railroad Company. Department. October 11, 1907.) Action by the Demuth Glass Manufacturing Company. No Brooklyn Union Coal Company against the out costs. If the minutes cannot be procured. opinion. Motion to dismiss appeal denied, withthe return must be made showing that fact and the reason why. BROOKS BROS., Respondents, v. TIFFANY. Appellant, et al. (Supreme Court, Appellate Division, First Department. November 2 1907.) Action by Brooks Bros. against Burnett Y. Tiffany, impleaded. A Tulin, for appellant. L. M. Berkeley, for respondent. PER CURIAM. Judgment affirmed, with costs, with leave to defendant to amend on payment of costs in this court and in the court below. Order filed. INGRAHAM, J., dissents. BROSSOIT, Appellant, V. EQUITABLE SECURITIES CO., Respondent. (Supreme Court, Appellate Division, First Department, November 8, 1907.) Action by Henrietta Brossoit, as administratrix, against the Equitable Seenrities Company. I. N. Miller, for appellant. C. A. Boston, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. BROWN, Appellant, v. COOPER PAPER BOX CO., Respondent. (Supreme Court, Ap pellate Division, Fourth Department. October 2, 1907.) Action by Nellie Brown, an infant etc., against the Cooper Paper Box Company. PER CURIAM. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, upon questions of law only: the facts having been examined and no error found therein. Held, that the trial judge committed reversible error in ruling upon questions of evidence. MCLENNAN, P. J., dissents. BRUNO, Respondent, v. REYNOLDS, Ap pellant. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) Action by Frank V. Bruno against Martin Reynolds. No opinion. Judgment and order unanimously | order should be reversed, and a new trial grantaffirmed, with costs. In re BUNKER. (Supreme Court, Appellate Division, Fourth Department. November 20, 1907.) In the matter of the settlement of the accounts of Ten Eyck Bunker, as administrator, etc. No opinion. Decree of Surrogate's Court affirmed, without costs. BURLINGAME, Respondent, v. DYKEMAN, Appellant. (Supreme Court, Appellate Division, Second Department. October 4, 1907.) Appeal from Trial Term, Orange County. Action by Earl Burlingame against James H. Dykeman. From a judgment for plaintiff, and an order denying his motion for a new trial, defendant appeals. Judgment and order affirmed. Hugo Hirsh (Ferd. W. Buermeyer and Edwin A. Jones, on the brief), for appellant. Phillip V. Fennelly, for respondent. PER CURIAM. Judgment and order affirmed, with costs. * RICH, J. (dissenting). This is an appeal from a judgment entered upon the verdict of a jury in favor of plaintiff in an action brought to recover damages for personal injuries. The accident and consequent injury to plaintiff was caused by his backing into an elevator shaft. Defendant was the owner of the building which was occupied by several different tenants. Plaintiff's employer was a brass goods company occupying the top floor, while defendant's place of business was in the basement. Plaintiff testified that just prior to the accident he used the elevator to take a truck to the street; that he wheeled the truck off the elevator into the street, took on some freight from an express wagon, and started to pull the truck back into the elevator walking backward; that before reaching the elevator, and when about nine feet from it, he looked back, and the elevator was where he left it; that he then turned into his former position and "kept pulling the truck backwards. When I got to the door of the elevator, I fell in." While plaintiff was going nine feet, some one without warning moved the elevator and caused the shaft or opening to be left without protection. There was evidence in the case warranting the conclusion that the elevator was moved by a boy in the employ of defendant. There is no claim, however, that defendant had any personal knowledge of this act on the part of his employé; but this does not relieve him from liability for the negligence of the employé, providing he was acting at the time within the scope of his employment. I have examined the record with care, and am unable to find any evidence tending to show that the boy was engaged in defendant's work at the time. The jury cannot be permitted to speculate in order to create a basis for a verdict. Bowden v. Mott Iron Works, 113 App. Div. 738, 99 N. Y. Supp. 209. A master is not an insurer against the negligent act of his employé. He can only be charged with such negligence where the act was done while the person was acting within the scope of his employment. There was some evidence from which it might be inferred that the boy was going to the basement and that the defendant occupied that floor. Suppose he was; that of itself proves nothing. The judgment and ed, costs to abide the event. GAYNOR, J., concurs. BURNS, Appellant, v. DELAWARE & HUDSON CO., Respondent. (Supreme Court, Appellate Division, Third Department. November 13, 1907.) Action by Peter Burns against the Delaware & Hudson Company. costs. PER CURIAM. Judgment affirmed, with SMITH, P. J., dissents. BURROW, Respondent, v. OTTO SARONY CO. et al., Appellant. (Supreme Court, Appellate Division, First Department. October 25, 1907.) Action by Ernest M. Burrow against the Otto Sarony Company, impleaded. M. Goodman, for appellant. Y. Allen, for respondent. PER CURIAM. Order affirmed, with $10 costs and disbursements. Order filed. PATTERSON, P. J., and CLARKE, J., dis |