SECOND DEPARTMENT, FEBRUARY TERM, 1875.

JAMES É. BUDLONG, RESPONDENT, v. ROBERT F. WESTCOTT, AS PRESIDENT, ETC., APPELLANT.

THIS was an appeal from a judgment, entered on a verdict rendered in favor of the plaintiff, and from an order denying a motion for a new trial, made on the minutes and certain affidavits claiming to set forth newly discovered evidence.

The action was brought to recover $5,000 damages, claimed for injuries to plaintiff from being run against by a vehicle of defendant, through the negligence of the driver, while the plaintiff was crossing South street, over the cross-walk from Fulton Market to Fulton Ferry, New York.

The court, after reviewing the evidence, was of opinion that the verdict was against the weight of evidence, and granted a new trial, with costs to abide the event.

Luke A. Lockwood, for the appellant.

E. New, for the respondent.

Opinion by TAPPEN, J.

Present-BARNARD, P. J., TAPPEN and DONOHUE, JJ.

Judgment and order reversed, and new trial granted, with costs to abide the event.

JOHN WARREN, APPELLANT, v. STEPHEN MEKEEL, RESPONDENT.

APPEAL from a judgment in favor of the defendant, entered upon the report of a referee.

The action was brought for an adjustment of the accounts. between the parties. The court, after a review of the evidence, discovered no finding, so unsupported by evidence as to afford a ground for reversal of the judgment.

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

Silas J. Owen, for the appellant.

Samuel J. Owen, for the respondent.

Opinion by BARNARD, P. J.

Present- BARNARD, P. J., TAPPEN and DONOHUE, JJ.
Judgment affirmed, with costs.

MARY A. WOODGATE, INDIVIDUALLY AND AS EXECUTRIX, ETC., AND ANOTHER, RESPONDENTS, v. MELANCTHON FLEET AND OTHERS, APPELLANTS.

APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

1).

This case has already been passed upon by the General Term (11 Abb. Pr. [N. S.], 52), and the Commission of Appeals (44 N. Y., The General Term held that the only question presented upon this appeal the validity of a trust deed-had been already passed upon, and affirmed the judgment.

Wm. H. Onderdonk, for the appellants.

Dennis McMahon, for the respondents.

Opinion by Donohue, J.

Present BARNARD P. J., TAPPEN and DONOHUE, JJ.

TAPPEN, J., dissented.

Judgment affirmed, with costs.

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

HOWARD ALLISON, AS RECEIVER OF, ETC., RESPONDENT, v. WILLIAM E. WELLER, IMPLEADED WITH THERON WELLER, APPELLANT.

APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

The General Term held that the facts were properly found by the court below, and that there was no merit in the objections made to the form of the decree.

Hulse, Little & Finn, for the appellant.

D. D. McKoon, for the respondent.

Opinion by DONOHUE, J.

Present TAPPEN and DONOHUE, JJ.

Judgment affirmed, with costs.

MARIA T. LORETZ, RESPONDENT, v. JOHN M. LORETZ, JR., IMPLEADED, ETC., APPELLANT.

APPEAL from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.

This appeal presented only questions of fact, and the General Term held, that the findings of the court below were fully sustained by the evidence, and affirmed the judgment.

Tenney & Holt, for the appellant.

S. D. Morris, for the respondent.

Opinion by DONOHUE, J.

Present BARNARD, P. J., and DONOHUE, J.

Judgment affirmed, with costs.

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

JOHN J. RIDER AND EZRA W. CONKLIN, APPELLAnts, v. CORNELIUS S. STRYKER, RESPONDENT.

MOTION for a reargument on the ground that the decision of the court on this appeal was put mainly on the ground that the commissioner for laying out and mapping the towns in Kings county, had not made a map of the premises upon which the wood in dispute was cut, and that this point was not taken in the court below. The court, after considering the proceedings had in the lower court, was of opinion that the point had been raised there.

Benjamin G. Hitchings, for the appellant.

D. P. Barnard, for the respondent.

Opinion by BARNARD, P. J.

Present BARNARD, P. J., TAPPEN and DONOHue, JJ.

Motion denied.*

PATRICK FORD, APPELLANT, . THE BROOKLYN GASLIGHT COMPANY, RESPONDENT.

Chap. 311 of the Laws of 1859.

APPEAL from a judgment of the County Court of Kings county, and from an order denying a new trial.

The action was brought in the Justice's Court of the city of Brooklyn, for damages for cutting off plaintiff's gas, and resulted in a judgment for the plaintiff for $150. On appeal to the County Court a new trial was had, on which the plaintiff's complaint was dismissed. The plaintiff made a deposit of fifteen dollars with defendant, October, 1872. A bill for gas was rendered 11th January, 1873, by which it appeared that plaintiff was consuming gas at the rate of forty-five dollars per month. Plaintiff was requested. to pay the bill, and also to increase the amount of his deposit. The

*See 2 Hun, 115, for decision on the appeal.

SECOND DEPARTMENT, FEBRUARY TERM, 1875.

request was repeated, January thirteenth, and being refused, the gas was cut off. The court was of opinion that chapter 311, of the Laws of 1859, authorized the act of the defendant, and affirmed the judgment, with costs.

T. O'Connor, for the appellant.

Winchester Britton, for the respondent.

Opinion by TAPPEN, J.

Present- BARNARD, P. J., TAPPEN and DONOHUE, JJ.

BARNARD, P. J., dissented.

Judgment affirmed, with costs.

GERMAN SMITH, RESPONDENT, v. E. P. BELDEN, IMPLEADED, ETC., APPELLANT.

APPEAL from a judgment in favor of the plaintiff, entered on an inquest at the Westchester County Circuit. The action was for goods sold, and the defendant, Belden, was sought to be charged as a partner. The defendant moved to postpone the trial when the case was called, showing the absence of material witnesses. The motion was denied, and the case went over to the next day, when an inquest was taken. The defendant then moved, at Special Term, to open the default, which motion was denied. On appeal to the General Term the denial was affirmed. On this appeal from the judgment, it was held that the adjudication on the former appeal prevented further review, and that in any event the discretion of the circuit judge was properly exercised.

H. Brewster, for the appellant.

W. H. Townley, for the respondent.

Opinion by TAPPEN, J.

Present-TAPPEN and DONOHUE, JJ.

Judgment affirmed, with costs.