App. Div.]

First Department, November, 1911.

dismiss appeal granted, with ten dollars costs, unless appellant comply with terms stated in order.

Anne E. Lyon v. James T. Murphy.- Motion to dismiss appeal granted, with ten dollars costs.

Mortitz L. Ernst and Others v. David Holzner.- Application denied, with ten dollars costs. Order signed.

Mutual Coal Company v. H. G. Realty Company.- Application granted. Order signed.

Armelia Furculi v. Edmund Bittiner.- Application denied, with ten dollars costs. Order signed.

The Equitable Trust Company v. Samuel H. Moss.- Application granted. Order signed.

In the Matter of C. Clarence Sichel v. Charles H. Stoddard.- Application denied, with ten dollars costs. Order signed.

Catheryn McMahon v. Isaac Schneer's Son & Company.- Motion denied, with ten dollars costs.

Christina Sherman v. Frederick W. Sherman.- Motion denied, with ten dollars costs.

Henry W. Mahar v. Harrington Park Villa Sites and Others.- Motion granted and question certified as stated in order.

Frank Gersten v. Hurtig & Seamon. (2 cases.) — Motions denied, with ten dollars costs.

James F. Mack v. Sanitary Fireproofing and Contracting Company and Others. Motion denied, with ten dollars costs.

Louis Ettlinger v. Theodore Kruger.— Motion denied, with ten dollars costs.

Frank V. Pollock v. The Shubert Theatrical Company.- Motion denied, with ten dollars costs.

Charles P. Morrison and Others v. Hurtig & Seamon.- Motion denied, with ten dollars costs.

In the Matter of Leopold A. Meyer.- Motion denied, with ten dollars costs. Mary Gorlitzer v. Betty Wolfberg, as Administratrix, etc.- Motion denied, without costs.

Marvin F. Butler v. Standard Milk Flour Company, Impleaded, etc.Motion denied, with ten dollars costs.

Simon Anhalt v. James Burrell and Others.- Motion denied, with ten dollars costs. Order to be settled on notice.

The People of the State of New York ex rel. Schwarzschild & Sulzberger Company v. Irving Lehman, a Justice, etc.-- Motion denied.

Walter H. Allen, Appellant, v. United Engineering and Contracting Company, Respondent.— Order affirmed, with costs. No opinion.

The People of the State of New York ex rel. Harry J. Murtha, Relator, v. William F. Baker, as Police Commissioner of the City of New York, Respondent.- Writ dismissed and proceedings affirmed, with fifty dollars costs and disbursements. No opinion.

Catherine Benson, as Administratrix, etc., of Joseph Benson, Deceased, Respondent, v. The City of New York, Appellant.― Judgment and order affirmed, with costs. No opinion,

First Department, November, 1911.

[Vol. 146. Russell Thayer, Appellant, v. Grant B. Schley and Others, Respondents. -Judgment affirmed, with costs, on opinion on former appeal (137 App. Div. 166).

James K. Holly, Appellant, v. Henry C. Copeland, Respondent.-Judgment and order affirmed, with costs. No opinion.

The City of New York, Respondent, v. James W. Hough and John T. McMahon, Impleaded with Ferdinando Gallo and Illinois Surety Company, Appellants. Judgment and order affirmed, with costs. No opinion. Laughlin, J., dissenting, as to defendant Illinois Surety Company on the ground that Gallo was acting merely as a blaster. Order to be settled on notice.

William Morrissey and Annie Morrissey, Respondents, v. Pasquale A. Riche, Appellant.- Judgment and order affirmed, with costs. No opinion. James A. Gross, Appellant, v. Title Guarantee and Trust Company, Respondent.-Judgment affirmed, with costs. No opinion.

In the Matter of the Probate of the Last Will and Testament of Pauline Dastler, Deceased, as a Will of Real and Personal Property. Emilie Degen and Others, Appellants; Oswald F. Rohe, an Executor Named in the Last Will and Testament of Pauline Dastler, Deceased, and Edward F. P. Amend, Respondents.- Decree affirmed, with costs. No opinion.

C. Douglass Green, Appellant, v. L. Gabriel des Garets, Impleaded with Francis Waddington, Respondent.- Judgment affirmed, with costs. No opinion.

The People of the State of New York, Respondent, v. Richard Moore, Appellant.- Judgment and order affirmed. No opinion.

Lyndsay Van Rensselaer, Respondent, v. Stephen W. Dorsey, Appellant. Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs. No opinion.

Fred B. Wilson, Appellant, v. Robert T. Lyons, Respondent.- Judg ment affirmed, with costs. No opinion.

William A. Hauff, Respondent, v. Herrmann Furniture and Plumbers. Cabinet Works, Appellant.-Judgment and order affirmed, with costs' No opinion.

Harris H. Uris, Respondent, v. Cathedral Parkway Realty Company, Impleaded with Simon Uhlfelder and Abraham Weinberg, Appellants.Judgment affirmed, with costs. No opinion.

Mamie Milnis, Appellant, v. Robert C. Cornell, Respondent.— Judgment affirmed, with costs. No opinion.

Jacob Marx, Appellant, v. William J. Gaynor, Mayor of the City of New York, and Others, Respondents.- Order affirmed, with ten dollars costs and disbursements. No opinion.

Paul Le Moyne, as Administrator, etc., of Joseph Ray Le Moyne, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.- Order reversed and motion granted to the extent of requiring defendant to furnish the particulars called for in the 4th and 5th paragraphs of the plaintiff's demand, without costs to either party. No opinion. Order to be settled on notice.

Eva Speiser, an Infant, by Muriel Speiser, Her Guardian ad Litem,

App. Div.]

First Department, November, 1911.

Respondent, v. The A. Luban Company, Appellant.-Order affirmed, with ten dollars costs and disbursements. No opinion.

The People of the State of New York ex rel. Henry E. Westbay, Appellant, v. Michael Delaney, Respondent. - Order affirmed, on opinion of Lehman, J., at Special Term. (Reported in 73 Misc. Rep. 5.)

In the Matter of the Application of Isaac Sloboder, Appellant, for the Examination of Samuel Karger, an Expected Defendant in an Action About to Be Brought, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion.

Alfred E. Cortis, Respondent, v. Great Southern Lumber Company, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. (Laughlin, J., dissented.)

James F. Kinkade, Respondent, v. Live Oak Copper Mining and Smelting Company, Appellant, Impleaded with Others.- Motion granted. Amended case on appeal to be refiled within ten days.

James T. Bunt, as Trustee, in Bankruptcy of Thomas O'Brien, Bankrupt, Respondent, v. Catherine O'Brien and Thomas O'Brien, Appellants, Impleaded with Mary McNamara.- Order affirmed, with ten dollars costs and disbursements. No opinion.

In the Matter of the Application of M. J. Walsh, as Deputy Comptroller of the State of New York, Respondent, for an Order Transferring Certain Court and Trust Funds from the New York Life Insurance and Trust Company of the County of New York, Appellant, to the Chamberlain of the City of New York.- Order affirmed, with ten dollars costs and disbursements. No opinion.

Louis Oppenheimer, Respondent, v. Emanuel Van Raalte and Zealie Van Raalte, Copartners Doing Business under the Firm Name of S. Oppenheimer & Levy, Appellants.- Order affirmed, with ten dollars costs and disbursements. No opinion.

In the Matter of Frederick Daniel Hughes, Deceased. In the Matter of the Judicial Settlement of the Account of Clara Hadfield Hughes, as Executrix, etc., of Frederick Daniel Hughes, Deceased, Appellant; Elizabeth Hughes Blakeman and Hattie M. Ryder, Respondents. — Order affirmed, with ten dollars costs and disbursements. No opinion..

Cora N. Kaiser, Respondent, v. James S. Harris, Appellant, Impleaded with Thomas R. Harris. - Order affirmed, with ten dollars costs and disbursements. No opinion. (Laughlin, J., dissented.)

Louis Lichtenhein and James Stern, Respondents, v. Ferdinand Jacob-. son and Joseph C. Jacobson, Appellants.- Order affirmed, with ten dollars costs and disbursements. No opinion.

INDEX.

ABATEMENT.

Death of plaintiff in negligence action after judgment for defendant –
appeal.

See PRACTICE, 4.

ACCORD AND SATISFACTION.

Municipal contract for disposal of rubbish-deductions for failure to
perform - acceptance of reduced payment by contractor.

See CONTRACT, 6.

ACCOUNT STATED.

Action by assignee — affidavits on attachment.
See ATTACHMENT, 1.

Facts insufficient to establish the same.

See BANKING, 1.

Allegation as to non-payment.
See PLEADING, 6.

Repudiation of account by debtor.

See PRINCIPAL AND AGENT, 2.

ACCOUNTING.

Bank receiver- when accounts will not be surcharged with sum lost
through negligence of attorney.

See BANKING, 2.

Action against treasurer of corporation — examination of plaintiff before
trial.

See DISCOVERY, 2.

Examination of defendant before trial.

See DISCOVERY, 3.

AGENCY.

See PRINCIPAL AND AGENT.

ANNULMENT.

Former marriage in force —custody of children — legitimacy.

See HUSBAND AND WIFE, 3.

APPEAL.

1. Dismissal of complaint — offer of proof. On an appeal from a judg
ment dismissing the complaint it will be assumed that the plaintiff could
have established all facts which he offered to prove. Alaska Banking
& Safe Deposit Co. v. Van Wyck, 5..

2. Dismissal — reserved motion — exception — correction of defect in
notice of appeal. Where the court reserved the decision of a motion to
dismiss the complaint without objection and, the jury having disagreed,
reserved the decision of a renewed motion to dismiss, which it granted
after the trial was over, the plaintiff may appeal from the judgment and
order of the court, although he took no exception to the dismissal of
the complaint.

The court, as a matter of course, will grant leave to correct a notice of
appeal containing a slight misdescription of the order appealed from, if
it be plain that there was an intention to appeal from the judgment
and order upon which it was entered. Monaco v. Lange, 18.

3. Powers of Appellate Division — what questions for jury. While it is
the duty of the Appellate Division to review the facts and to set aside
verdicts which it regards as excessive or against the evidence, disputed
questions of fact must ultimately be settled by the jury.

The jury is in the last analysis the final arbiter of the amount of damages
in negligence actions.