Fourth Department, October, 1911.

[Vol. 146. The People of the State of New York ex rel. The New York Central and Hudson River Railroad Company and Others, Relators, v. The Public Service Commission of the State of New York, Second District, and Others, and The Buffalo Frontier Terminal Railroad Company, Respondents.Determination of Public Service Commission confirmed and writ dismissed, with fifty dollars costs and disbursements. All concurred.

Albert H. Hamilton, Respondent, v. Press Publishing Company, Appellant.- Judgment and order reversed and new trial granted, with costs to appellant to abide event, upon the ground that the verdict is grossly excessive. All concurred.

Emma Olsen, Respondent, v. Pennsylvania Railroad Company, Appellant.- Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held, that the verdict is contrary to and against the weight of the evidence. All concurred, except McLennan, P. J., and Kruse, J., who dissented.

August Finck, Jr., Appellant, v. Homer Weston, Respondent.-Judg ment affirmed, with costs. All concurred, except Spring and Williams, JJ., who dissented.

Margaret Guilfoyle, as Administratrix, etc., of James Guilfoyle, Deceased, Respondent, v. Charles McDermott and Clifford Lewis, Jr., as Receivers of the McDermott Contracting Company, Appellants.- Judg ment and order affirmed, with costs. All concurred, except Spring and Robson, JJ., who dissented on the ground that the method used was safe. Valentine Stefaniak, Respondent, v. Hans Schmidt, Appellant.- Judg ment and order reversed and new trial granted, with costs to appellant to abide event, unless the plaintiff shall, within twenty days, stipulate to reduce the verdict to the sum of $4,000 as of the date of the rendition thereof, in which event the judgment is modified accordingly, and as so modified is, together with the order, affirmed, without costs of this appeal to either party. All concurred, except McLennan, P. J., and Robson, J., who dissented and voted for reversal on the ground of errors in the charge and in the reception of evidence.

Mary Brandou, Appellant, v. Town of Kirkland, Respondent.-Judgment reversed and new trial granted, with costs to appellant to abide event. Held, that the evidence presented questions of fact for the jury. All concurred, except Robson, J., who dissented.

Harold C. Keller, by Joseph Keller, His Guardian ad Litem, Respondent, v. Fort Stanwix Knitting Company, Appellant.- Judgment and order affirmed, with costs. All concurred.

Johanna E. O'Brien, as Administratrix, etc., of Patrick H. O'Brien, Deceased, Respondent, v. The City of Auburn, Appellant.- Judgment and order affirmed, with costs. All concurred.

George H. Pletts, Appellant, v. Ellen C. Barton and Others, Respondents. Judgment affirmed, with costs. All concurred.

Max Maximilian, Respondent, v. John B. Porter and Max Maximilian Tool and Machine Company, Appellants, Impleaded with Frederick A. Meyer. Order affirmed, with ten dollars costs and disbursements. All concurred.

App. Div.]

Fourth Department, October, 1911.

Rose E. Radka, as Administratrix, etc., of William H. Radka, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.-Judgment and order affirmed, with costs. All concurred, except Kruse, J., who dissented.

Edward Walstein, Appellant, v. International Railway Company, Respondent.- Order affirmed, with costs. All concurred.

Albert L. Murray, Respondent, v. The Town of Fayette, Appellant.— Judgment and order affirmed, with costs. All concurred.

William Demond, Respondent, v. Harry E. Wood, Appellant. - Judgment and order affirmed, with costs. All concurred.

Harold A. O'Hern, by Mary E. McGee, His Guardian ad Litem, Plaintiff, v. Ludowici-Celadon Company, Defendant.- Plaintiff's exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant upon the nonsuit, with costs. All concurred, except Spring and Kruse, JJ., who dissented upon the ground that the evidence presented questions of fact for the jury.

George Gates, Appellant, v. Edward M. Marilley, Respondent.-Judgment of County Court modified so as to reverse the judgment of the Justice's Court, with costs, and by striking out the provision awarding a new trial in the Justice's Court, and as so modified, affirmed, without costs of this appeal to either party. All concurred.

Albert Sisson, Respondent, v. Charles S. Sprague, Appellant.- Motion granted and appeal dismissed, with ten dollars costs.

In the Matter of Judicial Settlement of the Accounts of Franciska Hourt, as Administratrix, etc., of George Heldman, Deceased.— Motion to dismiss appeal denied, with ten dollars costs.

In the Matter of the Application of Grade Crossing Commissioners of The City of Buffalo, in the Matter of Lands Claimed to Be Owned by Mary A. France and Others. (Proceeding No. 92.)- Appeal of Alice Adele Porter dismissed upon stipulation filed.

In the Matter of the Probate of the Last Will and Testament of George W. Kingsley, Deceased.— Appeal dismissed upon stipulation filed.

In the Matter of the Application of the Grade Crossing Commissioners of the City of Buffalo for the Appointment of Commissioners to Ascertain the Compensation to Be Paid to the Owners of and Parties Interested in Lands Claimed to Be Injured by the Change of the Grade of Broadway and Claimed to Be Owned by Clinton K. De Groat and Others, Respondents. (Proceeding No. 89.) The New York Central and Hudson River Railroad Company, Appellant.- Appeal dismissed as to Louise J. Nenno upon stipulation filed.

Margaret A. Austin, as Administratrix, etc., Appellant, v. Onondaga County Fair Association, Respondent.― Motion to dismiss appeal granted, with costs.

The People of the State of New York ex rel. George H. Williams, Respondent, v. Francis G. Ward, Commissioner of Public Works of the City of Buffalo, Appellant.- Appeal dismissed upon stipulation filed.

Walter S. Coffin, Appellant, v. James J, Barber and Others, Respond

Fourth Department, October, 1911.

[Vol. 146.

ents.- Judgment affirmed, with costs. All concurred, except Kruse, J., who dissented.

William E. Kent, as Administrator, etc., of Charles Thompson, Deceased, Respondent, v. Jamestown Street Railway Company, Appellant.― Judgment and order affirmed, with costs. All concurred.

Joseph S. Meli, Respondent, v. City of Jamestown, Appellant.- Judgment and order affirmed, with costs. All concurred.

William H. Collins, Respondent, v. Victoria Paper Mills Company, Appellant.- Judgment and order affirmed, with costs. All concurred, except Williams, J., who dissented upon the ground of errors in the charge, among others the submission to the jury of the question of a safe place, which was not raised by the pleadings.

Edward K. Fenno, Respondent, v. Ontario Construction Company, Appellant.- Judgment affirmed, with costs. All concurred.

George M. Trefts, Respondent, v. Buffalo Fertilizer Company, Appellant.― Judgment and order affirmed, with costs. All concurred.

In the Matter of the Application for a Decree Revoking Letters Testamentary Issued to Lawrence R. Boyd, as Executor, etc., of Emma C. Sawyer, Deceased. Lawrence R. Boyd, Individually and as Executor, etc., of Emma C. Sawyer, Deceased, Appellant; Eugene L. Sawyer, Respondent. Decree affirmed, with costs. All concurred; McLennan, P. J., not sitting.

Ada L. Ballard, Respondent, v. The Village of Hamburg, Appellant.— Judgment and order affirmed, with costs. All concurred; McLennan, P. J., not sitting.

Eliza J. Miller, Respondent, v. Crosstown Street Railway Company of Buffalo, Appellant.- Judgment and order affirmed, with costs. All concurred; Spring, J., not sitting.

In the Matter of the Application of the Lake Shore and Michigan Southern Railway Company, Appellant, for the Appointment of Commissioners to Ascertain the Compensation to Be Made to the Owners of and Parties Interested in Certain Lands Situated in the Town of Hanover, County of Chautauqua and State of New York, and Proposed to Be Taken by the Lake Shore and Michigan Southern Railway Company, and Claimed to Be Owned by Ida Dickinson and Others, Respondents.- Report of commissioners set aside and the order confirming the same reversed, and matter remitted to the Special Term for the appointment of new commissioners, with costs of this appeal to appellant. Held, that the submission of the printed record and briefs on the former appeal to Commissioner Palmer without the knowledge of the appellant was improper, requiring a reversal of the order. All concurred.

John E. Sommer, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.- Judgment and order affirmed, with costs. All concurred.

Patrick J. McCaffrey, Respondent, v. Benjamin E. Foster and Louis B. Manning, Appellants.- Judgment affirmed, with costs. All concurred, except McLennan, P. J., who dissented upon the ground that in order to entitle the plaintiff to recover it was a prerequisite that he should procure

App. Div.]

Fourth Department, October, 1911.

the certificate of the architect that the building was completed and the full amount due, and the complaint not stating that fact, nor any proof being made in that regard, the plaintiff is not entitled to recover.

Esther O. Burns, as Administratrix, etc., of Benjamin R. Burns, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.- Judgment affirmed, with costs. All concurred.

William J. Lieber, Respondent, v. International Railway Company and Crosstown Street Railway Company of Buffalo, Appellants.- Judgment and order affirmed, with costs. All concurred, except Williams, J., who dissented upon the ground that the verdict is excessive and that errors were committed in the reception of evidence; Spring, J., not sitting.

Charles S. Averill, Plaintiff, v. Frank M. Andrews, Defendant.- Plaintiff's exceptions overruled, motion for new trial denied, with costs, and judgment directed for the defendant upon the nonsuit, with costs. All concurred.

The People of the State of New York, Respondent, v. Vernon Earing, Appellant. Judgment affirmed on opinion of Ross, County Judge. (Reported in 71 Misc. Rep. 615.) All concurred, except Kruse and Robson, JJ., who dissented.

Herbert H. Putnam, Appellant, v. Mary K. Putnam and Others, Respondents, Impleaded with Fred N. Putnam and Others, Appellants.Judgment affirmed, with costs. All concurred.

Arthur L. Drysdale, an Infant, by Laney Drysdale, His Guardian ad Litem, Appellant, v. New York State Railways, Respondent.- Order affirmed, with costs. All concurred.

In the Matter of George F. Paddock, an Alleged Incompetent Person, Appellant. Olive A. Paddock, Respondent.— Order affirmed, with ten dollars costs and disbursements. All concurred, except Robson, J., who. dissented; Williams, J., not sitting. Jason Abbey, Respondent, v. Peter B. Colgan, Appellant.- Judgment and order affirmed, with costs. All concurred.

John O'Leary, Respondent, v. and order affirmed, with costs.

Village of Clayton, Appellant.-Judgment
All concurred.

John G. Elbs, Appellant, v. Rochester Egg Carrier Company, Respondent.- Order affirmed, with ten doilars costs and disbursements. Held, that it does not appear that the court at Special Term improperly exercised its discretion in denying plaintiff's application for a preliminary injunction. All concurred.

John A. Donaldson, as Trustee of the White Dairy, Bankrupt, Appellant, v. Charles F. Filbrick and Others, Respondents.- Order affirmed, with ten dollars costs and disbursements. All concurred.

Sanitary Carpet Cleaner, Respondent, v. Reed Manufacturing Company, Appellant.-Order affirmed, with ten dollars costs and disbursements. All concurred.

Bernard A. Schweid and Harry A. Schweid, Respondents, v. Christina Oothout, Appellant.- Order affirmed, with ten dollars costs and disbursements. All concurred.

Fourth Department, October, 1911.

[Vol. 146.

Knowlton Mixer, Appellant, v. James N. Adam, as Mayor of the City of Buffalo, and Others, Respondents.-Orders affirmed, with ten dollars costs and disbursements. All concurred.

Henry W. Watson, as Committee, etc., of Evalena Beadle, an Incompetent Person, Respondent, v. Lucios, Appellant.-Order affirmed, with ten dollars costs and disbursements. All concurred.

Adolph Wnuck, as Administrator, etc., of Herman Skrobuck, Deceased, Respondent, v. Charles F. Wisehoon and Others, Individually and as Copartners, Doing Business under the Firm Name and Style of Charles F. Wisehoon & Son, Defendants, and John P. Hier, Appellant.-Order affirmed, with ten dollars costs and disbursements. All concurred.

The People of the State of New York, Respondent, v. New York Central and Hudson River Railroad Company, Appellant. (No. 2.)- Order affirmed, with ten dollars costs and disbursements. All concurred, except McLennan, P. J., who dissented upon the ground that under the circumstances disclosed by the affidavits in this case the court had no power to compel the witnesses named to submit to an examination.

The People of the State of New York, Respondent, v. Millie J. Newcomb, as Administratrix, etc., of Sarah A. Wiggins, Deceased, Appellant.- Order affirmed, with ten dollars costs and disbursements. All concurred, except Kruse, J., who dissented upon the ground that the Court of Appeals having ordered a new trial against the substituted defendant, administratrix, and the plaintiff having proceeded without asking for a modification of the decision, and the defendant having succeeded on the trial, she is now entitled to costs under the decision of that court.

Otto Bronold, Appellant, v. Maggie Theuer, Respondent.— Order reversed, with ten dollars costs and disbursements, and motion denied. Held, that the action is one in equity. All concurred, except Spring, J., .who dissented.

Theodore Searle, Respondent, v. George S. Waterman, Appellant.Judgment affirmed, with costs. All concurred.

William Howley, Appellant, v. Frank Hopkins, as Committee of Michael J. (Otherwise Known as Mitchel) Howley, an Incompetent Person, Respondent.- Judgment affirmed, with costs. All concurred.

Elizabeth J. Campbell, Appellant, v. Louis Black, Respondent.- Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Held, that the complaint states but one cause of action. All concurred, except Robson, J., who dissented; McLennan, P. J., not sitting.

Henry K. Williams, a Taxpayer of the City of Dunkirk, New York, Respondent, v. Harry James, as Mayor of the City of Dunkirk, Respondent, Impleaded with Richard Heppell, as Clerk of the City of Dunkirk, and Others, and Joseph Stejakowski, as Councilman, and Others, Appellants. (No. 1.)- Order affirmed, with ten dollars costs and disbursements. All concurred.

Henry K. Williams, a Taxpayer of the City of Dunkirk, New York, Respondent, v. Harry James, as Mayor of the City of Dunkirk, Respondent, Impleaded with Richard Heppell, as Clerk of the City of Dunkirk,