ment. September 15, 1914.) Proceeding by the People of the State of New York, on the relation of the Empire State Dairy Company, against William Sohmer, as Comptroller of the State of New York. PER CURIAM. Determination of the comptroller confirmed, with $50 costs and disburse ments. SMITH, P. J., and HOWARD, J., vote for modification, by remitting the tax of threefourths of a mill upon the new stock declared as dividend. PEOPLE ex rel. GOLDSTEIN v. MURPHY. (Supreme Court, Appellate Division, First Department. October 30, 1914.) Proceeding by the People of the State of New York, on the relation of Maurice Goldstein, against John J. Murphy. No opinion. Motion granted, with $10 costs. Order filed. PEOPLE ex rel. GREENWALD, Appellant, V. PRENDERGAST, Comptroller, Respondent. (Supreme Court, Appellate Division, First Department. November 13, 1914.) Proceeding by the People of the State of New York, on the relation of Daniel Greenwald, against William A. Prendergast, as Comptroller. M. Shlivek, of New York City, for appellant. T. Farley, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. PEOPLE ex rel. HAWTHORNE v. WALDO, Police Com'r, Respondent. (Supreme Court, Appellate Division, Second Department. November 6, 1914.) Proceeding by the People of the State of New York, on the relation of George B. Hawthorne, against Rhinelander Waldo, as Police Commissioner of the City of New York. upon PER CURIAM. The determination of the commissioner, removing the relator grounds stated in writing, and after an opportunity given him to make an explanation, was within the commissioner's powers, and in accordance with section 1543 of the City Charter (Laws 1901, c. 466). The reasons filed in the department, upon their face, are adequate to justify the relator's dismissal. Hence the relator's removal was not reviewable by certiorari. People ex rel. Kennedy v. Brady, 166 N. Y. 44, 59 N. E. 701. The determination of the commissioner is therefore confirmed, and the writ quashed, with $50 costs and disbursements. PEOPLE ex rel. HOME BUREAU, Appellant, v. BELL, Respondent. (Supreme Court, Appellate Division, First Department. October 30, 1914.) Proceeding by the People of the State of New York, on the relation of the Home Bureau, against George H. Bell, as Commissioner. L. W. Booth, of New York City, for appellant. T. Farley, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. PEOPLE ex rel. HOWLEY, Appellant, v. HENDERSON, Respondent. (Supreme Court, Appellate Division, First Department. October 16, 1914.) Proceeding by the People of the State of New York, on the relation of John J. Howley, against James A. Henderson, as Superintendent. M. M. Goldsmith, of New York City, for appellant. W. E. C. Mayer, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. PEOPLE ex rel. JIMESON et al., Appellants, v. SHONGO et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 7, 1914.) Proceeding by the People of the State of New York, on the relation of Glennie M. Jimeson and others, against Moses Shongo and others. No opinion. Motion granted to amend, nunc pro tune, the order of affirmance entered July 7, 1914 (148 N. Y. Supp. 1137), so as to state that the decision was made upon questions of law only, and not in the exercise of any discretion. Motion for leave to appeal to Court of Appeals denied, upon the ground that leave to appeal is not necessary. PEOPLE ex rel. JEMISON et al., Appellants, v. SCOTT et al., Respondents. (Supreme Court, Appellate Division, Fourth Department. October 7, 1914.) Proceeding by the People of the State of New York, on the relation of George A. Jemison and others, against King Scott and others. PER CURIAM. Motion granted to amend, nunc pro tunc, the order of affirmance entered July 7, 1914 (148 N. Y. Supp. 1137), so as to state that the decision was made upon questions of law only, and not in the exercise of any discretion. Motion for leave to appeal to Court of Appeals denied, upon the ground that leave to appeal is not necessary. PEOPLE_ex_rel. JENNY, Respondent, v. ROME & O. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 7, 1914.) Proceeding by the People of the State of New York, on the relation of Rudolph Jenny, against the Rome & Osceola Railroad Company. No opinion. Judgment and order affirmed, with costs. PEOPLE ex rel. KENNEDY, Respondent, v. CALKINS. Appellant. (Supreme Court, Appellate Division, Third Department. November 11, 1914.) Proceeding by the People of the State of New York, upon the relation of T. Francis Kennedy, against James S. Calkins. No opinion. Order affirmed, with $10 costs and disbursements. PEOPLE ex rel. LEAKE & WATTS OR- | the_relation of Henry W. Phillips, against John PHAN HOUSE v. NEVILLE et al. (Supreme J. Hanley, Warden, etc. No opinion. Motion deCourt, Appellate Division, Second Department. nied. Order filed. See, also, 149 N. Y. Supp. October 2, 1914.) Proceeding by the People of 452. the State of New York, on the relation of the Leake & Watts Orphan House, against Robert H. Neville and others. No opinion. Motion denied, on condition that the appellant perfect the appeal, place the case on the November calendar, and be ready for argument when reached; otherwise, motion granted. PEOPLE ex rel. LYONS, Appellant, v. HOPPER, Respondent. (Supreme Court, Appellate Division, First Department. October 16, 1914.) Proceeding by the People of the State of New York, on the relation of John J. Lyons, against John J. Hopper, as Register, etc. A. J. Talley, of New York City, for appellant. E. C. Kindleberger, of New York City; for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. PEOPLE ex rel. MOORE, Respondent, v. DOOLEY, Appellant. (Supreme Court, Appellate Division, First Department. October 30, 1914.) Proceeding by the People of the State of New York, on the relation of Benjamin E. Moore, against John Dooley, as President, etc. B. J. Wright, of New York City, for appellant. T. A. McCole, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. PEOPLE ex rel. NATIONAL NASSAU BANK. Appellant, v. PRENDERGAST, Comptroller, Respondent. (Supreme Court, Appellate Division, First Department. October 16, 1914.) Proceeding by the People of the State of New York, on the relation of the National Nassau Bank, against William A. Prendergast, as Comptroller, etc. S. Bacon, of New York City, for appellant. C. J. Nehrbas, of New York City, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. der filed. Or PEOPLE ex rel. RYAN v. McKAY. (Supreme Court, Appellate Division, First Department. November 13, 1914.) Proceeding by the People of the State of New York, on the relation of John T. Ryan, against Douglas I. McKay, as Commissioner. No opinion. Motion granted, with $10 costs. Order filed. PEOPLE ex rel. WILKINSON v. FROTHINGHAM. (Supreme Court, Appellate Division, First Department. October 30, 1914.) Proceeding by the People of the State of New York, on the relation of James Wilkinson, against Edgar V. Frothingham. No opinion. Motion granted, with $10 costs. Order filed. PEOPLE ex rel. YOUNG et al., Respondents, V. GULVIN et Court, Appellate Division, Fourth Department. al., Appellants. (Supreme October 7, 1914.) Proceeding by the People of the State of New York, on the relation of G. B. Young and others, against Reuben H. Gulvin and others. PER CURIAM. Judgment (149 N. Y. Supp. 117) affirmed, with costs, upon the opinion of SUTHERLAND, J., delivered at the Trial Term. ROBSON, J., not sitting. ent. PEOPLE'S NAT. BANK OF BROOKLYN See, also, 153 App. Div. 937, 138 N. Y. Supp. IN NEW YORK, Respondent, v. SCHISSEL, 1137. W. J. Wetherbee, of Buffalo, for appelAppellant. (Supreme Court, Appellate Divi- lant. D. J. Kenefick, of Buffalo, for respondsion, Second Department. November 6. 1914.) Action by the People's National Bank of Brooklyn in New York against Paul Schissel. No opinion. Judgment and order affirmed, with costs. PERHAM, Respondent, v. COTTLE et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. October 21, 1914.) Action by B. Frank Perham, individually and as administrator, etc., against Jennie Williams Cottle, individually and as executrix, etc., and others. No opinion. Order affirmed, with $10 costs and disbursements. PERHAM V. COTTLE et al. (Supreme Court, Appellate Division, Fourth Department. October 21, 1914.) Action by Henrietta F. Perham against Jennie Williams Cottle, individually and as executrix, etc., and others, impleaded with Edmund P. Cottle. No opinion. Interlocutory judgment affirmed, with costs, with leave to the appellant to plead over within 20 days, upon payment of the costs of the demurrer and of this appeal. In re PERRIN, (Supreme Court, Appellate Division, Fourth Department. September 23, 1914.) In the matter of the application of Frances H. Perrin for the appointment of commissioners to determine and assess the damages against the city of Rochester resulting to her property from a change of grade upon East avenue in said city. No opinion. Motion to dismiss appeal denied, with $10 costs. Argument of appeal set down for October 9th. PERRY, Respondent, v. PETER KEELER BLDG. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. October 21, 1914.) Action by George H. Perry against the Peter Keeler Building Company. No opinion. Motion granted to dismiss appeal, unless appellants file and serve briefs not later than October 20, 1914. In re PETZE. (Supreme Court, Appellate Division, First Department. November 13. 1914.) In the matter of William R. Petze. No opinion. Motion granted, unless appellant complies with terms stated in order. Order filed. PFEIFFER V. IRON ELEVATOR & TRANSFER CO. (Supreme Court, Appellate Division, Fourth Department. October 14, 1914.) Appeal from Trial Term. Action by Ida Pfeiffer, as administratrix of the estate of Gustave Pfeiffer, deceased, against the Iron Elevator & Transfer Company. Judgment for defendant, and plaintiff appeals. Affirmed. verdict was held to be "contrary to and against PER CURIAM. Upon the former appeal the the weight of the evidence." We now hold, upon the present record, not only that the weight of the evidence is against the plaintiff upon the question of defendant's negligence, but also that as matter of law the evidence is insufficient to establish actionable negligence against the defendant. The record discloses no reversible error, and therefore the plaintiff's exceptions should be overruled, the motion for a new trial denied, and judgment having been entered, and an appeal also taken therefrom, the judgment should be affirmed, with costs. PIERCE v. SUN INS. OFFICE. (Supreme Court, Appellate Division, First Department. November 13, 1914.) Action by Fred E. Pierce against the Sun Insurance Office. No opinion. Application granted. Order signed. See, also, 86 Misc. Rep. 1, 147 N. Y. Supp. 947. PLINUS v. FIELDSTEEL. (Supreme Court, Appellate Term, First Department. November. 19, 1914.) Appeal from Municipal Court. Borough of Manhattan, Third District. Action by Adele Plinus against Charles S. Fieldsteel. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted. Otto A. Glasberg, of New York City, for appellant. Nathaniel Choloney, of New York City, for respondent. cover on a check made and delivered by defendBIJUR, J. This action was brought to reant to plaintiff's assignors. The record is meager and exceedingly unsatisfactory. Respondent does not attempt to explain the fact that the judgment was rendered for $100.23 damages, although the check is for $101.54. Moreover. it seems quite evident on the record that the defendant was entitled to be allowed at least one of the counterclaims interposed by him, for $10.15 costs, awarded in a previous action brought by the same plaintiff against him, evidence of which was admitted at the trial. Under the circumstances, it is evident that the issues presented by the pleadings should receive a deliberate trial, and a judgment be rendered in accordance with the resulting evidence. Judgment reversed, and a new trial granted. with costs to appellant to abide the event. All concur. PLUEMER, Appellant, v. BERWIND, Respondent. (Supreme Court, Appellate Division. First Department. October 23, 1914.) Action by Adolph Pluemer against Edward J. Berwind. J. P. Everett, of New York City, for appellant. J. W. Welsh, of New York City, for respondent. No opinion. Judgment affirmed, with costs. Order filed. POLLAK, Appellant, v. DODGE MFG. CO.,, plaintiff could apply for an open commission unRespondent. (Supreme Court, Appellate Divi- der section 893 of the Code of Civil Procedure. sion, First Department. October 16, 1914.) The trial should not be stayed to compel a deAction by Henry Pollak against the Dodge Man- fendant to come back and take up his residence ufacturing Company. L. C. Ferguson, of New in this state, where the course laid down by the York City, for appellant. M. B. Clarke, of Code to take such testimony has not been folNew York City, for respondent. No opinion. lowed. Order affirmed, with $10 costs and disbursements. Order filed. See, also, 81 Misc. Rep. 216, 142 N. Y. Supp. 495. PRATT, Respondent, v. McKEE et al., Appellants. (Supreme Court, Appellate Division, Second Department. November 6, 1914.) Action by Michael Pratt against Henry D. McKee and another, etc. PER CURIAM. Order of June 29, 1914, reversed, and stay vacated, without costs. Appeal from order of July 6th, refusing to modify the prior order, dismissed, without costs. The removal of defendant Beers to Honolulu since the last trial affords no ground to stay proceed ings, or to impose the condition that such defendant shall again acquire a residence address within this state. Such a defendant now living without the state may be examined by deposition under chapter 9, tit. 4, art. 3, of the PRENSKY v. ALPERT. (Supreme Court, Appellant Division, First Department. October 16, 1914.) Action by Samuel Prensky against Max Alpert. No opinion. Motion granted, with $10 costs. Order filed. R. A. SCHOENBERG & CO v. HALL et al. (No. 6148.) (Supreme Court, Appellate Divi Appeal from Special Term, New York County. Action by R. A. Schoenberg & Co. against Sarah J. A. Hall and others. From an order granting defendants' motion to vacate an order for examination of the defendants before trial, plaintiff appeals. Reversed. M. L. Heidenheimer, of New York City, for appellant. Thomas J. Whalen, of New York City, for respondents. PER CURIAM. The order appealed from is reversed, with $10 costs and disbursements, and the order for examination modified, by limiting the examination to facts tending to prove the plaintiff's cause of action. |