Third Department, May, 1921.

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of this appeal. If such stipulation is not given, the judgment should be reversed and a new trial granted, costs to abide the event. Woodward, J.,

concurs.

THE ADIRONDACK TRUST COMPANY, Respondent, v. THE NABOB CONSOLIDATED MINING COMPANY and STEWART MINING COMPANY, Appellants. Orders affirmed, with costs. All concur, except Kiley, J., dissenting.

THE ADIRONDACK TRUST COMPANY, Respondent, v. THE NABOB CONSOLIDATED MINING COMPANY and STEWART MINING COMPANY, Appellants. Order affirmed, with costs. All concur, except Kiley, J., dissenting. MULVENA BERKOWITZ, Appellant, v. HARRY B. ROSEN, Respondent.Judgment and order unanimously affirmed, with costs.

CONTINENTAL INSURANCE COMPANY, Appellant, v. MYRON C. WOOD, as Administrator, etc., of NATHANIEL W. CARMAN, Deceased, Appellant.— Judgment and order affirmed, with costs, under section 1317 of the Code of Civil Procedure. All concur, except Woodward and Kiley, JJ., dissenting. ADDISON GOODRICH, Respondent, v. ARTHUR W. GOODRICH, Appellant.— Judgment unanimously affirmed, with costs.

HUBERT KELLY, Respondent, v. HOME MUTUAL FIRE INSURANCE COMPANY OF BROOME COUNTY, N. Y., Appellant.- Order unanimously affirmed, with ten dollars costs and disbursements.

In the Matter of the Charges against WILLIAM J. CUNNINGHAM, Fire Battalion Chief, Appellant. COMMISSIONER OF PUBLIC SAFETY OF THE CITY OF TROY, NEW YORK, Respondent.- Order unanimously affirmed, with ten dollars costs and disbursements.

In the Matter of the Application and Petition of JOHN F. GALVIN and Others, Constituting the Board of Water Supply of the City of New York, to Acquire Real Estate for and on Behalf of The City of New York, Respondent, under Chapter 724 of the Laws of 1905, and the Acts Amendatory Thereof, in the Towns of Gilboa and Conesville, County of Schoharie; Roxbury, County of Delaware; and Prattsville, County of Greene, in the State of New York, for the Purpose of Providing an Additional Supply of Pure and Wholesome Water for the Use of the City of New York. CHESTER A. PLATNER, Claimant, Appellant.- Order affirmed, with ten dollars costs and disbursements. All concur, except Cochrane, J., dissenting.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of GEORGE HABBERSHAW, Respondent, for Compensation under the Workmen's Compensation Law, v. SHEPARD COMPANY, Employer, Defendant, and THE HARTFORD ACCIDENT AND INDEMNITY COMPANY, Insurance Carrier, Appellant.— Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim for Compensation under the Workmen's Compensation Law, Made by FRED CLARK, Respondent, v. ERIE RAILROAD COMPANY, Employer, Appellant. Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim for Compensation under the Workmen's Compensation Law, Made by MRS. TILLIE SCHWABE, Widow, Respondent, on Account of the

App. Div.]

Third Department, May, 1921.

Death of HERMAN SCHWABE, V. A. M. HAZELL, INC., Employer, and EMPLOYERS' MUTUAL INSURANCE COMPANY OF NEW YORK, Insurance Carrier, Appellants.- Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of JOSEPH SAXON, Respondent, for Compensation under the Workmen's Compensation Law, v. JOHN LITTLE, Employer, and THE TRAVELERS INSURANCE COMPANY, Insurance Carrier, Appellants.- Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of LAMBERT J. ECKERT, Respondent, for Compensation under the Workmen's Compensation Law, v. A. P. W. PAPER COMPANY, Employer, and EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Insurance Carrier, Appellants.- Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of ROSA FULD, Respondent, for Compensation under the Workmen's Compensation Law, v. SIGMUND SOLOMON Co., Employer, and THE OCEAN ACCIDENT AND GUARANTEE CORPORATION, LIMITED, Insurance Carrier, Appellants.- Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of NICHOLAS MARTIN, Respondent, for Compensation under the Workmen's Compensation Law, v. CRAIG & VROOMAN, Employer, and ETNA LIFE INSURANCE COMPANY, Insurance Carrier, Appellants.- Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of ALBERT MEYERS, Respondent, for Compensation under the Workmen's Compensation Law, v. SYDNEY K. JOHNSON, Employer, and ETNA LIFE INSURANCE COMPANY, Insurance Carrier, Appellants.Award modified by deducting therefrom $150, and as modified affirmed. All concur, except Van Kirk, J., who votes for affirmance without modification.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. NEW YORK CENTRAL RAILROAD COMPANY AND ERIE RAILROAD COMPANY V. PUBLIC SERVICE COMMISSION, SECOND DISTRICT, PENNSYLVANIA RAILROAD COMPANY and DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY. (Proceeding to Revoke Certificate of Convenience and Necessity Issued to the Frontier Electric Railway Company.) THE PEOPLE OF THE STATE OF NEW YORK ex rel. NEW YORK CENTRAL RAILROAD COMPANY and ERIE RAILROAD COMPANY V. PUBLIC SERVICE COMMISSION, SECOND DISTRICT, PENNSYLVANIA RAILROAD COMPANY and DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY. (Proceeding by Pennsylvania Railroad Company and Delaware, Lackawanna and Western Railroad Company to Acquire the Capital Stock of the Frontier Electric Railway Company.) — Motion denied.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. NEW YORK CENTRAL RAILROAD COMPANY, Relator, v. PUBLIC SERVICE COMMISSION, SECOND DISTRICT, Defendant.- Motion denied.

CALVIN P. PRESCOTT and ARTHUR W. PRESCOTT, Copartners Doing

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[Vol. 197

Business under the Firm Name and Style of PRESCOTT SUPPLY COMPANY, Respondents, v. M. WILLIAM PROBST, Appellant.- Order unanimously affirmed, with ten dollars costs and disbursements.

HELEN ROBERTSON, Respondent, v. EARL ROBERTSON, Appellant.- Order unanimously affirmed, with ten dollars costs and disbursements.

DAVID C. TAYLOR, Respondent, v. IRINE K. EMBURY, Appellant.Motions denied.

SUSAN THOMPSON, Appellant, Respondent, v. FORT MILLER PULP AND PAPER COMPANY, Appellant, Respondent.- Motion denied.

LOUISE P. TRUEBIG and WILHELMINA P. GOEBEL, Respondents, v. George C. GOEBEL and Others. GEORGE C. GOEBEL, Appellant.- Motion denied. Van Kirk, J., not sitting.

THOMAS WATTS V. MAXWELL BURTIS.- Motion granted by default. MIKE MAYERSAK, Appellant, v. MERRILL H. CLEVELAND, Respondent.Motion granted, with ten dollars costs.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of MEYER LEDERSON, Respondent, for Himself, for Injuries Sustained, under the Workmen's Compensation Law, v. CASSIDY & DORFMAN, Employer, and ROYAL INDEMNITY COMPANY, Insurer, Appellants.— Decision amended so as to read as follows: Award reversed, and matter remitted to the Commission for its further consideration. Opinion by John M. Kellogg, P. J. All concur, except Kiley, J., dissenting, with a memorandum. [Reported in 195 App. Div. 613.]

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of GRACE DELSO and Others, Respondents, for Compensation under the Workmen's Compensation Law, v. CRUCIBLE STEEL COMPANY OF AMERICA, Employer and Self-Insurer, Appellant.- Motion denied.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of PETER NERONSKY, Respondent, for Compensation under the Workmen's Compensation Law, v. COLUMBIAN ROPE COMPANY, Employer, and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Insurance Carrier, Appellants.- Award unanimously affirmed.

NEWARK CHEESE CO., INC., Appellant, v. MASONVILLE CREAMERY COMPANY, INC., Respondent.- Judgment unanimously affirmed, without costs of this appeal to either party. This court makes the following additional finding and modifications of findings of the trial court: In the last week of October, 1919, when the $2,000 note was given, it was agreed between the plaintiff and the defendant that the retaining of the note should be without waiving any rights on the part of the defendant under the contract, and that no more milk would be delivered by the defendant to the plaintiff until said note was paid; that said note should be paid within two or three days, and it was not so paid, and was not paid prior to November 1, 1919; that said note was not accepted in payment of the debt then due, but as collateral security for the said indebtedness. The fifth finding of fact of the trial court is modified by adding the words " and for payments due prior thereto." The sixth finding of fact of the trial court is modified by adding the words "and for milk delivered prior to October, 1919." The

App. Div.]

Third Department, May, 1921.

seventh finding of fact of the trial court is modified by striking out the words "for which plaintiff's note had been given and endorsed by its treasurer, individually." The eleventh finding of fact of the trial court is modified to read as follows: "Eleventh. That it was not intended by defendant to waive prompt payment pursuant to the terms of the contract as to the milk thereafter delivered, which fact was made known to the plaintiff by the defendant's representative during the last week of October, 1919, at the interview between the plaintiff's treasurer and the defendant's representative in New York city."

Petition of the NEW YORK CENTRAL RAILROAD COMPANY, Respondent, under Section 91 of the Railroad Law,* for an Order Determining that the Crossing at Grade in the City of Kingston, of Cornell Street, and the West Shore Railroad Company (Lessor) Shall Be Closed and Discontinued, and a New Piece of Street Be Constructed to Manor Avenue. UNITED STATES LACE CURTAIN MILLS, Appellant.- Order unanimously affirmed, with costs.

VILLAGE OF NEW PALTZ, Respondent, v. NEW PALTZ, HIGHLAND AND POUGHKEEPSIE TRACTION COMPANY, Appellant.- Motion denied.

AARON POCKROSE and Others, Respondents, v. ISRAEL SHAPIRO, Appellant. Order unanimously affirmed, with ten dollars costs and disbursements. GEORGE L. PATTERSON, Respondent, v. WILLA C. PATTERSON, Wife of GEORGE L. PATTERSON, and Others, Defendants. JOHN D. SCHOONMAKER, Appellant. Order unanimously affirmed, with ten dollars costs and disbursements.

-

THE PEOPLE OF THE STATE OF NEW YORK ex rel. UNITED STATES RUBBER COMPANY, Appellant, v. WALTER H. KNAPP and Others, Constituting the State Tax Commission of the State of New York, Respondents.— Determination confirmed, with fifty dollars costs and disbursements. All concur, except Kiley, J., dissenting; Van Kirk, J., not sitting.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN HANKARD, Appellant. Judgment of conviction and order unanimously affirmed. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, V. THOMAS CORBETT, Appellant.- Judgment unanimously affirmed.

THE PEOPLE OF THE STATE OF NEW YORK ex rel. EMELINE F. CLYDE, Relator, v. JAMES A. WENDELL, as Comptroller of the State of New York, Respondent.- Determination confirmed, with fifty dollars costs and disbursements. All concur, except John M. Kellogg, P. J., dissenting.

ELVER L. RICE, Doing Business under the Firm Name and Style of AMERICAN STANDARD JEWELRY COMPANY, Respondent, v. VENUS LEEDER, Appellant. Judgment unanimously affirmed, with costs.

GEORGE WILLIAM BEACH, Appellant, v. A. BARTON HEPBURN, as Treasurer of SERBIAN CHILD WELFARE ASSOCIATION OF AMERICA, Respondent.- Order unanimously affirmed, with ten dollars costs and disbursements. FARMERS SYNDICATE, INC., Appellant, v. F. KIESER & SON Co., INC.,

*Amd. by Laws of 1914, chap. 378.- [REP.

APP. DIV.- VOL. CXCVII. 58

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and KASCO MILLS, INC., Respondents.- Order unanimously affirmed, with ten dollars costs and disbursements.

FARMERS SYNDICATE, INC., Appellant, v. F. KIESER & SON Co., Inc., Respondent. Order unanimously affirmed, with ten dollars costs and disbursements.

WILLIAM F. MILLER, Appellant, v. SAKS & COMPANY, a Corporation, Respondent. Order unanimously affirmed, with ten dollars costs and disbursements.

LEVI PUTMAN, Respondent, v. WILLIAM J. ADAMS, Appellant.- Order unanimously affirmed, with ten dollars costs and disbursements.

ALICE CHASE, as Administratrix, etc., of LELAND H. CHASE, Deceased, Appellant, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Respondent.- Order unanimously affirmed, with costs.

MARTIN CRIPPEN and FRED CRIPPEN, Respondents, v. JULIA CALLAHAN, Appellant. Judgment and orders unanimously affirmed, with costs.

MAUDE H. C. DAVIS, Respondent, v. WILLIAM H. DAVIS, Appellant.— Motion denied.

F. KIESER & SON CO., INC., Respondent, V. CHAUTAUQUA COUNTY FARMERS MILK PRODUCERS ASSOCIATION, Appellant.- Order unanimously affirmed, with ten dollars costs and disbursements.

ELMER E. KNIGHT, Respondent, v. SHERMAN BROWN and HATTIE BROWN, Appellants. Motion granted.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of MRS. SHERMAN JOHNSON and LENA MAY JOHNSON, Respondents, for Compensation under the Workmen's Compensation Law for the Death of EARL SCHRYBER, V. ENDICOTT-JOHNSON CORPORATION, Employer, and EMPLOYERS' LIABILITY ASSURANCE CORPORATION, LTD., Insurance Carrier, Appellants.— Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim for Compensation under the Workmen's Compensation Law, Made by MRS. ANNA C. THORPE, Respondent, for Compensation to Herself, for the Death of CLIFFORD E. THORPE, Her Son, v. J. W. Hook, Employer, and THE OCEAN ACCIDENT AND GUARANTEE CORPORATION, LIMITED, Insurance Carrier, Appellants.- Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of WILLIAM FLANAGAN, Respondent, for Compensation under the Workmen's Compensation Law, v. JONES BROTHERS, Employer, and THE COMMERCIAL CASUALTY INSURANCE COMPANY, Insurance Carrier, Appellants. Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim of HARRY RIVER, Respondent, for Compensation under the Workmen's Compensation Law, v. PRUSSACK ELECTRIC Co., Employer, and ZURICH GENERAL ACCIDENT AND LIABILITY INSURANCE CO., LTD., Insurance Carrier, Appellants.— Award unanimously affirmed.

Before STATE INDUSTRIAL COMMISSION, Respondent. In the Matter of the Claim for Compensation under the Workmen's Compensation Law, Made by LEO T. WALSH, Respondent, v. THE AMERICAN MACHINE AND