MEMORANDUM DECISIONS. Robert ADAMSON, as Com'r., v. RICHLAND REALTY CO. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Application denied, with $10 costs. Order signed. Lucy B. ALLEN, respondent, v. Conrad M. BRAKER, Florence L. BRAKER and Florence M. FOX, appellants. (Supreme Court, Appellate Division, Second Department. December 30, 1915.) Judgment and order affirmed, with costs, as to appellant Conrad M. Braker. But A. FRANK WARREN REAL ESTATE as proof of scienter did not involve the other CO., Respondent, v. STRASENBURGH, Ap- defendants who signed the contract, the judgpellant. (Supreme Court, Appellate Division, ment and order as to them must be reversed. Fourth Department. November 24, 1915.) Ac- As they have not separately appeared, this retion by the A. Frank Warren Real Estate Com-versal is without costs. No opinion. Jenks, P. pany against Robert J. Strasenburgh. No opin- J., and Carr, Mills, Rich, and Putnam, JJ., ion. Judgment affirmed, with costs. Alfred E. ALDRIDGE, appellant, v. ETNA LIFE INSURANCE CO., respondent. (Supreme Court, Appellate Division, Fourth Department. January 22, 1916.) Judgment affirmed, with costs. All concur, except KRUSE, P. J., who dissents upon the ground that it should not be held as a matter of law that the untruthful statement with reference to plaintiff's having received medical attention is a warranty, in view of the fact that it was not contained in the copy of the application which was attached to the policy. In the Matter of the Transfer Tax upon the Estate of J. Henry ALEXANDRE, deceased, (Supreme Court, Appellate Division, Second Department. December 17, 1915.) Order of the Surrogate's Court of Richmond County modified, so as to apportion the $9,229.85, fixed as transfer tax, pro rata between petitioner's beneficial interest under the trust fund and her other nontrust interests under the will, following Matter of Title Guarantee & Trust Co., 81 Misc. Rep. 106, 112, 142 N. Y. Supp. 1070, 159 App. Div. 803, 144 N. Y. Supp. 889; 212 N. Y. 551, 106 N. E. 1043, and as so modified affirmed, without costs of this appeal. No opinion. Jenks, P. J., and Thomas, Carr, Stapleton, and Putnam, JJ., concur. concur. ALONG THE HUDSON CO. v. Charles H. AYRES. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Motion denied, with $10 costs. Order filed. ALVEY MFG. CO., appellant, v. INTERBORO BREWING CO., respondent. (Supreme Court, Appellate Division, First Department. December 30, 1915.) Order affirmed, with costs. No opinion. Order filed. AMERICAN MANUFACTURING COMPANY, respondent, v. Edward LINDGREN, and others, appellants. (Supreme Court, Appellate Division, Second Department. December 24, 1915.) Judgment affirmed, with costs. No opinion. Jenks, P. J., and Thomas, Carr, Mills, and Rich, JJ., concur. 1114 COMPANY, appellant. (Supreme Court, Appellate Division, Second Department. January 7, 1916.) Motions denied, without costs. James ASHLEY, respondent, v. NATIONAL HOTEL CO., appellant. (Supreme Court, Appellate Division, Fourth Department. January 22, 1916.) Judgment and order reversed and new trial granted, with costs to appellant to abide event. Held: That the court erred in refusing to charge as requested "that on the evidence the defendant did not maintain any faulty construction, either in the elevator or in the walls or openings or plans and designs of the same." All concur. AUGUST, Respondent, v. ERIE R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. November 17, 1915.) Action by Simon August against the Erie Railroad Company. No opinion. Judgment and order affirmed, with costs. Vincent J. AUNCHMAN v. S. Howard LEGGETT. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Motion granted, with $10 costs. Order filed. George BAGDON, appellant, v. PHILADELPHIA & READING COAL & IRON COMPANY, respondent. (Supreme Court, Appellate January 7, Division, Second Department. 1916.) Motion granted. The question certified is: "Should service of the summons in this action upon the defendant be set aside?" Hyman D. BAKER v. ANCIENT ORDER OF HIBERNIANS._ (Supreme Court, Appellate Division, First Department. January 14, 1916.) Motion denied, with $10 costs. Order filed. Theodore BAKER and others, appellants, v. Emma H. GRIFFITH and Charles E. GRIFFITH, respondents. (Supreme Court, Appellate Division, Second Department. January 7, 1916.) Motion granted, and case set down for Friday, January 14, 1916. the premises described in the complaint, and Albert BARBER, applt., v. W. A. CASE & SON MFG. CO., respt. (Supreme Court, Appellate Division, Fourth Department. January 22, 1916.) Judgment and order affirmed, with costs. All concur. Clara S. BARCLAY as trustee, Respt., v. William H. BARNARD and ano., Respts., V. In re BARNES. (Supreme Court, Appellate November 24, Division, Fourth Department. In the matter of the application of 1915.) James M. Barnes for the appointment of commissioners to ascertain the damage to his propin Cuba Village. No opinion. Judgment aferty caused by the change of grade of street firmed, with costs, upon stipulation filed. one, Charles P. BARNES, applt., v. Oliver DE Charles P. and respts. RIDDER BARNES, applt., v. Simon H. AGNEW_and sion, Fourth Department. January 5, 1916.) Dickerson G. BAKER and another, appel-one, respts. (Supreme Court, Appellate Divilants, v. Frank H. PAGE et al., respondents. Judgment affirmed, with costs. All concur. (Supreme Court, Appellate Division, First Department. December 24, 1915.) Order affirmed, with $10 costs and disbursements. opinion. Order filed. No John W. BAKER, applt., v. TOWN OF GROVE, respt. (Supreme Court, Appellate Division, Fourth Department. January 5, 1916.) Judgment and order affirmed with costs. All concur. BARBER, Respondent, v. KNAPP et al., Appellants. (Supreme Court, Appellate Division, AcFourth Department. November 17, 1915.) tion by Mina C. Barber, against Martha A. Knapp and another. No opinion. Findings of fact numbered sixth and ninth disapproved, in so far as it is therein found that Rena P. Knapp made an agreement to sell or sold gravel from Retta H. BARRANGER, Applt., v. JAMES (Supreme Court, ApBUTLER, Inc., Respt. January pellate Division, First Department. 14, 1916.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed. Van R. BARRETT, respt., v. William J. BRADY, applt. (Supreme Court, Appellate January 5, Division, Fourth Department. 1916.) Judgment and order reversed and new trial granted, with costs to appellant to abide Held: 1. That the exception taken to event. the refusal of the court to dismiss the first cause of action stated in the complaint because 2. That the finding of of the failure of evidence to support it, constituted reversible error. the jury upon the second cause of action stated in the complaint is against the weight of the evidence on the question of the alienation of | First Department. December 10, 1915.) Acthe affections of the plaintiff's wife, or that any tion by Robert Beckett and another against damage was caused thereby. All concur. Julius Blum. No opinion. Judgment affirmed, with costs. Order filed. Laughlin and Smith, JJ., dissent. Nicholas J. BARRETT as exr., Respt., v. Thomas KERATSAS and ano., Applts. (Supreme Court, Appellate Division, First Department. December 30, 1915.) Order affirmed, with costs. No opinion. Order filed. BARTHOLOMAY BREWERY CO. O'BRIEN et al. (Supreme Court, Appellate Division, Fourth Department. November 17, 1915.) Action by the Bartholomay Brewery Company against Dennis O'Brien and another; Hugh J. O'Brien, appellant. No opinion. Motion to dismiss appeal held to be heard upon the argument of the appeal. See, also, 155 N. Y. Supp. 1093. Harriet W. BEAULEY V. PRESS PUBLISHING CO. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Motion granted, with $10 costs. Order filed. BEIGLER, Respondent, v. INTERNATIONAL RY. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. December 1, 1915.) Action by Abbie Beigler against the International Railway Company. No opinion. Judgment and order affirmed, with costs. AGARA, LOCKPORT & ONTARIO POWER. BELLA, Respondent, v. NEW YORK CENT. & H. R. R. CO., Appellant. (Supreme Court, Appellate Division, Fourth Department. November 24, 1915.) Action by Margaret Bella, as administratrix, etc., against the New York Central & Hudson River Railroad Company. No opinion. Appeal dismissed, without costs, upon stipulation filed. C. CLANCIOLO, respt. (Supreme Court, ApVincenzo BELLANCA, applt., v. Guiseppina pellate Division, Fourth Department. January 5, 1916.) Appeal dismissed without costs upon stipulation filed. H. Ephraim BENGUIAT and ano., Applts., v. Court, Appellate Division, First Department. Vitall BENGUIAT and ano., Respts. (Supreme December 24, 1915.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed. In the matter of the estate of William BEN HAM, deceased. John D. BENHAM, petitioner, and Seaver A. Miller, as Committee, etc., applts., v. Willis E. BENHAM, administrator, respt. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) Decree modified, by reducing the costs to $120 and disbursements, and as so modified unanimously affirmed, without costs. In the matter of the claim of John Frederick BENTON for compensation under the WorkBEAVERKILL STREAM CLUB, respt., v. men's Compensation Law, v. George H. FRAElizabeth C. LEMMI (formerly Leighton), do- SER, employer, and Zurich General Accident ing business under the registered trade-name of and Liability Company, Limited, insurance carthe Arthur Leighton Company, applt. (Su- rier. (Supreme Court, Appellate Division, Third preme Court, Appellate Division, Third Depart- Department. January 5, 1916.) Award unaniment. January 5, 1916.) Judgment unanimously affirmed. Cochrane, J., not sitting. mously affirmed, with costs. BEAVERKILL STREAM CLUB, respt., v. Elizabeth C. LEMMI (formerly Leighton), doing business under the registered trade-name of Arthur Leighton Co., applt. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) Motion denied. BECKETT et al., Appellants, v. BLUM, Respondent. (Supreme Court, Appellate Division, In the matter of the claim of Charles BERLINER, claimant, for compensation under the Workmen's Compensation Law, and State Industrial Commission, respts., v. RITCHIE & CORNELL, employer, and Globe Indemnity Company, insurance carrier, applts. (Supreme Court, Appellate Division, Third Department. January 5, 1916.) Award affirmed. All concur, except Lyon and Woodward, JJ., dissenting. Angelo BIASI, an infant, etc., applt., v. ACME ENGINEERING & CONTRACTING CO., respt. (Supreme Court, Appellate Division, Fourth Department. January 22, 1916.) Judgment reversed and new trial granted, with costs to appellant to abide event. Held: That the notice is a part of the complaint and should be read in connection therewith, and when so read the complaint states a cause of action. 2. Even if the complaint was defective, the court had power under the circumstances of this case, to allow the amendment asked. All concur. Joseph BIELSKI, respt., v. HALCOMB STEEL CO., applt. (Supreme Court, Appellate Division, Fourth Department. January 12, 1916.) Appeal dismissed, without costs, upon stipulation filed. Elsie H. BIRD and one, as executors, etc., respts., v. INTERNATIONAL RAILWAY CO. impleaded, etc., applt. (Supreme Court, Appellate Division, Fourth Department. December 8, 1915.) Judgment and order affirmed, with costs. All concur, except Foote, J., who dissents upon the ground that the court erred in charging the jury that the defendant was called upon to have the car approach the usual stopping place under control. Charles BIRD, applt., v. James W. SHERMAN et al., respts. (Supreme Court, Appellate Division, Fourth Department. January 5, 1916.) Judgment affirmed, with costs. All concur. In the matter of Clarence F. BIRDSEYE. (Supreme Court, Appellate Division, First Department. December 30, 1915.) Application granted. Settle order on notice. Jacob BITTERFIELD, Respt., v. Adolf ASCHENGREN, Applt. (Supreme Court, Appellate Division, First Department. December 24, 1915.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed. BLAISDELL, Appellant, v. LONG ISLAND R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. December 10, 1915.) Action by William Blaisdell against the Long Island Railroad Company. No opinion. The parties hereto having stipulated in open court that this case may be disposed of by a court of four, the decision is as follows: Judgment unanimously affirmed, with costs, for the reasons stated in Blaisdell v. Long Island Railroad Co., 152 App. Div. 218, 136 N. Y. Supp. 768, on the question of liability. Any evidence received upon the second trial, not adduced upon the first, is purely cumulative, and does not piece out a cause of action. See, also, 131 N. Y. Supp. 14. In the matter of the claim of Ella BLOOMFIELD for compensation under the Workmen's Compensation Law v. S. NOVEMBER, employer, and Zurich General Accident and Liability Insurance Company, Limited, insurance carrier, [appellants. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) Award unanimously affirmed. Henrietta I. BOLLINGER, Respt., v. Andrew ALBRIGHT, Applt. (Supreme Court, Appellate Division, First Department. December 24, 1915.) Judgment and order affirmed, with costs. No opinion. Order filed. Henrietta I. BOLLINGER, v. Andrew ALBRIGHT. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Motion denied, with $10 costs. Order filed. Matter of BOUKER CONTRACTING CO., Applt., v. W. H. Callahan Contracting Co., Respt. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Determination (92 Misc. Rep. 241, 155 N. Y. Supp. 543) affirmed, with costs, on opinion of Lehman, J., at Appellate Term. Order filed. Isadore BRANDES, an BRADLEY inft., Respt., v. CONTRACTING (Supreme Court, Appellate Division, First DeCO., Applt. partment. December 30, 1915.) Judgment and order affirmed, with costs. No opinion. Order filed. Francesca BRUNO, applt., v. John P. KING, respt. (Supreme Court, Appellate Division, Fourth Department. January 5, 1916.) Appeal dismissed, without costs, upon stipulation filed. & DENNIS CO., Respondent. (Supreme Court, BUCCIARELLI, Appellant, v. RINEHART Appellate Division, Second Department. December 10, 1915.) Action by Ugo Bucciarelli, an infant, by Vincenzo Bucciarelli, his guardian ad litem, against the Rinehart & Dennis Company. No opinion. The evidence is confused, and some of the witnesses so changeful in their testimony as to awaken incredulity. But, unopposed, the evidence is not so utterly destitute of probable_truth as to permit its rejection by the court. It tends to show, rather faintly, it is true, but sufficiently to demand submission to the jury, subject to review as to the weight of | it, that the defendant's servants had been using similar caps for blasting near the place of the accident, and had left the cap. Whether the defendant was negligent in such regard, whether such negligence was the proximate cause of the injury, and whether the plaintiff or his parents were guilty of contributory negligence, were questions for the jury to determine. Judgment of nonsuit reversed and new trial granted, costs to abide the event. Appellate Division, Second Department. December 10, 1915.) Action by Edwin C. Chamberlin and another against Josephine L. Chamberlin and others. No opinion. Judgment modified, to the extent of reducing the extra allowances to the various defendants to one-half thereof, and as so modified affirmed, without costs. Settle order on notice before Mr. Justice Carr. Clark T. CHAMBERS, respondent, v. NEW YORK THEATRE COMPANY, appellant. John L. BUNNELL, respt., v. N. Y. CEN-(Supreme Court, Appellate Division, Second DeTRAL R. R. CO., applt. (Supreme Court, Ap-orders unanimously affirmed, with costs. No partment. December 17, 1915.) Judgment and pellate Division, Fourth Department. January opinion. 5, 1916.) Judgment and order affirmed, with costs. All concur. Clark T. CHAMBERS, respondent, v. NEW In the matter of the claim of George BUR-YORK THEATRE COMPANY, appellant. TON for workmen's compensation v. JAMES (Supreme Court, Appellate Division, Second DeA. WHELEN & SONS, employer, Commercial partment. January 7, 1916.) Motion denied. Casualty Insurance Company, insurer, applts. (Supreme Court, Appellate Division, Third Department. January 5, 1916.) Award unanimously affirmed. James G. BUSSING, respt., v. The N. B. FAILS LUBRICATING CO., applt. (Supreme Court, Appellate Division, Fourth Department. January 12, 1916.) Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs to abide event. All concur. In re CALDWELL'S ESTATE. (Supreme Court, Appellate Division, Fourth Department. December 1, 1915.) In the matter of transfer tax upon the estate of Isabel Caldwell, deceased. No opinion. Order affirmed, with costs. Frances E. CALLISTER, respt., v. Sarah A. MEECH, impleaded, etc., applt. (Supreme Court, Appellate Division, Fourth Department. January 12, 1916.) Judgment affirmed, with costs. All concur. CARMAN v. FELDSTEIN. (Supreme Court, Appellate Division, First Department. December 10, 1915.) Action by Nelson G. Carman against Herman H. Feldstein. No opinion. Application denied, with $10 costs. Order signed. Vahan CARDASHIAN, Respt., v. Henry B. ENDICOTT et al., Applts. (Supreme Court, Appellate Division, First Department. December 24, 1915.) Order reversed, with $10 costs and disbursements, and motion granted. No opinion. Order filed. William D. CHAPIN, respondent, v. Freeman A. GODFREY and William Keeler, copartners, etc., appellant. (Supreme Court, Appellate Division, Second Department. December 24, 1915.) Application denied, with $10 costs. George H. CHAPMAN, respt., v. NIAGARA SILK MILLS, applt. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) On the record and the stipulation filed, order unanimously affirmed, with $10 costs and disbursements, without prejudice to the right of the presiding judge at the trial to order a reference if in his judgment it should be done. = In the matter of the claim of Martha CHAPPELLE, widow of Joseph T. Chappelle, deceased, v. FOUR HUNDRED AND TWELVE BROADWAY COMPANY, employer, and Zurich General Accident and Liability Insurance Company, Limited, insurance carrier, applts. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) Motion granted. Giles A. CHASE, respt., v. Leslie A. SIMPSON, applt. (Supreme Court, Appellate Division, Third Department. January 5, 1916.) Judgment unanimously affirmed, with costs. Nora CHILDERS, as administratrix, etc., of Alfred Thomas Childers, deceased, appellant, v.. BROOKLYN EASTERN DISTRICT TERMINAL, respondent. (Supreme Court, Appellate Division, Second Department. December 24, 1915.) Judgment and order unanimously affirmed, with costs. No opinion. In the matter of the application of Vincent A. CASHIN, for admission to the bar. (Su- for compensation under the Workmen's ComIn the matter of the claim of Joseph CINO, preme Court, Appellate Division, Second Depart-pensation Law, claimant-respondent, v. NORDecember 24, 1915.) Application denied. TON & GORMAN CONTRACTING COMSee Matter of McGarey, 167 App. Div. 931, 152 N. Y. Supp. 324. ment. CHAMBERLIN et al., Appellants, v. CHAMBERLIN et al., Respondents. (Supreme Court, PANY, employer, and Casualty Company of America, insurance carrier, appellants. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) Award unanimously affirmed. |