uary 7, 1916.) Motion denied on condition that within three days appellant comply with the conditions of the order of December 6, 1915, place the case on the calendar for Friday, January 14, 1916, and be ready for argument when reached; otherwise, motion granted, with $10 costs. ROSE, Respondent, v. INTERNATIONAL RY. CO. et al., Appellants. (Supreme Court, Appellate Division, Fourth Department. November 17, 1915.) Action by Elsie Rose, as administratrix, etc., against the International Railway Company and another. No opinion. Judgment and order affirmed, with costs. ROSENBERG, Respondent, v. NEW YORK CONSOL. RY. CO., Appellant. (Supreme Court, Appellate Division, Second Department. December 10, 1915.) Action by Sophia Rosenberg against the New York Consolidated Railway Company. No opinion. Order of the County Court of Kings County affirmed, costs to abide the event. Bernhard ROSENSTOCK and ano., Applts., V. CUSHMAN BREAD CO. and ano., Respts. (Supreme Court, Appellate Division, First Department. December 24, 1915.) Judgment affirmed, with costs. No opinion. Order filed. ST. BERNARD'S SEMINARY OF Charles G. ROSS, appellant, v. LONG ISLAND RAILROAD COMPANY, respondent. CHARLES ROSS & SON COMPANY, appel- GREECE, N. Y., plff., v. Frank DOBSON, Sulant, v. LONG ISLAND RAILROAD COM-pervisor, et al., defts. (Supreme Court, AppelPANY, respondent. (Supreme Court, Appel- late Division, Fourth Department. January late Division, Second Department. December 24, 1915.) Applications denied, with $10 costs in one case. 22, 1916.) Action upon the submission dismissed without costs, for want of jurisdiction. Held: 1. On the facts agreed to by the parties the case is not one in which plaintiff could have maintained an action and, therefore, does Mabel G. ROTHSCHILD, etc., respondent, v. not come within the provisions of section 1279 George EICKEMEYER et al., defendants; of the Code of Civil Procedure. 2. The suppleHenry L. Twine and Albert M. Keene, appel- mentary statement in the form of the stipulalants. (Supreme Court, Appellate Division, Section of the counsel is unauthorized and cannot ond Department. December 24, 1915.) Order be the basis of a judgment under section 1279 affirmed, with $10 costs and disbursements. No of the Code of Civil Procedure. All concur. opinion. Jenks, P. J., and Thomas, Stapleton, Rich, and Putnam, JJ., concur. In the matter of Jacob ROUSS. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Motion denied. Settle order on notice. George E. ROWE, respt. v. David B. HENDRICKS, applt. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) Judgment and order reversed upon the ground that the verdict is against the weight of the evidence as to the defendant's negligence and the plaintiff's contributory negligence, and a new trial granted, with costs to appellant to abide event. All concur. Cochrane, J., not sitting. RUOCCO v. JOSEPH GALLICK CONTRACTING CO. (Supreme Court, Appellate Division, First Department. December 10, 1915.) Action by Raffaele Ruocco against the Charles ST. JOHN, respondent, v. STEINHILBER and Katherine Steinhilber, appellants. (Supreme Court, Appellate Division, Second Department. December 17, 1915.) Judgment and order reversed, and complaint dismissed, with costs, upon the ground that the plaintiff did not produce a purchaser, willing, able and ready to buy upon the terms prescribed by the defendants. Jenks, P. J., and Carr, Mills, Rich, and Putnam, JJ., concur. In the matter of the applications of the ST. REGIS PAPER CO. (respt.), for the removal of Mike ADAMS, Dominick Bendetto, F. E. Benway, Frank Blasgoroski, John Bura, Salvatore Coreli, Harley Derby, William Dorsi. Sam Dubriski, Dominick Dutko, Paul Flirk, Thomas Gaines, John Genge, James Gerace, Eugene Godfrey, Joe Halco, Simon Jojurski, Harry Klash, Mikoli Kocoubinski, Mike Kozliki, Nick La Tempa, Frank McTaggert, Andrew Merterke, Mike Metrik, Fred A. Mitchell, Sam Mlcki, Mike Moscow, M. F. O'Keefe, Mike Padoleski, Salvatore_Pangallo, Narco Pargone, | 1915.) Judgment (151 N. Y. Supp. 429) affirmTony Peltz, Ed. Peters, Waldek Pseztase, ed, with costs. No opinion. Dowling and Howard Rhines, John Rosenbarker, Charles Smith, JJ., dissenting. Order filed. Shue, Adolph Siediska, Joseph Siediska, Dominick Spina, Mike Szmuki, Mike Toper, John Tunia, Joseph Turpin, Frank Vellutino, Mert Williams, and H. F. Zimmerman (applts.) from certain real property. (Supreme Court, Appellate Division, Fourth Department. January 22, 1916.) Order affirmed, with $10 costs and disbursements. All concur. Frank SALERNO and one, respts., v. John McKAIG et al., applts. (Supreme Court, Appellate Division, Fourth Department. January 5, 1916.) Motion granted and appeal dismissed. Tillie SALVIN, Respt., v. Herman ROSENBAUM, Applt. (two cases). (Supreme Court, Appellate Division, First Department. December 30, 1915.) Orders affirmed, with $10 costs and disbursements. No opinion. Orders filed. Thomas SANDERS, Jr., Applt., v. Kenneth T. BARNABY, Respt. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed. In the matter of the claim of John SANDERS, for compensation arising out of personal injuries, v. LEHIGH VALLEY RAILROAD COMPANY, employer. (Supreme Court, Appellate Division, Third Department. January 5, 1916.) Award unanimously affirmed, on the authority of Matter of Winfield v. N. Y. C. & H. R. R. R. Co., 216 N. Y. 284, 110 N. E. 614. Kellogg, P. J., not sitting. Paul H. SANDRESKY, respt., v. ERIE R. R. CO., applt. (Supreme Court, Appellate Division, Fourth Department. December 8, 1915.) Judgment (91 Misc. Rep. 67, 153 N. Y. Supp. 612) affirmed with costs. All concur. Frank J. SAUER, respt., v. Harry HOLTZMAN et al., applts. (Supreme Court, Appellate Division, Fourth Department. January 22, 1916.) Appeal dismissed without costs upon stipulation filed. Alfred SCHMITT, respt., v. PENNSYLVANIA R. R. CO., applt. (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: (1) That the so-called "Safety Appliance Act," requiring 85 per cent. of the cars in a train to be equipped with air brakes, has no application to a switching oper ation such as is disclosed by the evidence in this case, and that the submission to the jury of that issue was error. U. S. v. Erie R. R. Co., 237 U. S. 402, 35 Sup. Ct. 621, 59 L. Ed. 1019. (2) That at the time of the accident the defendant was engaged in interstate commerce. (3) That upon the issue of the negligence of the defendant, the verdict is against the weight of the evidence. All concur. RISON, applt. (Supreme Court, Appellate Di- cur. Julius SCHWARTZ, respt., v. HOOKER ELECTRO-CHEMICAL CO., applt. (Supreme Court, Appellate Division, Fourth Department. January 5, 1916.) Judgment and order affirmed with costs. All concur. Julius SCHWARTZ, respt., v. HOOKER ELECTRO-CHEMICAL CO., applt. (Supreme Court, Appellate Division, Fourth Department. January 22, 1916.) Motion to appeal to Court of Appeals denied, with $10 costs. GRAPH CO., Respondent. (Supreme Court, SCHWARZ, Appellant, v. OTIS LITHOAppellate Division, First Department. December 10, 1915.) Action by Eloise G. Schwarz against the Otis Lithograph Company. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. Blanche SEAVEY, as admx., etc., respt., v. Charles P. HUNT, applt. (Supreme Court, ApIn the matter of the claim of Mary V. SAX-pellate Division, Fourth Department. January ON, for compensation under the Workmen's 5, 1916.) Judgment and order affirmed with Compensation Law, v. ERIE RAILROAD costs. All concur. COMPANY, employer and self-insurer. (Supreme Court, Appellate Division, Third Department. January 5, 1916.) Award unanimously affirmed, on the authority of Matter of Winfield v. N. Y. C. & H. R. R. R. Co., 216 N. Y. 284, 110 N. E. 614. Bernard SCHLENGER v. William STETLER and ano. (Supreme Court, Appellate Division, First Department. December 24, 1915.) Motion granted, with $10 costs. Order filed. James M. SCHLEY, Jr., Applt., v. Morna C. ANDREWS, Respt. (Supreme Court. Appellate Division, First Department. December 30, Louis E. SEDDON et al., appellants, v. KELLNER CONSTRUCTION COMPANY, respondent. (Supreme Court, Appellate Division, Second Department. December 24, 1915.) Application denied, with $10 costs. SEVENTY-EIGHTH ST. & BROADWAY CO. v. PURSSELL MFG. CO. (Supreme Court, Appellate Division, First Department. December 10, 1915.) Action by the SeventyEighth Street & Broadway Company against the Pursell Manufacturing Company. No opinion. Application granted. Order signed. See, also, 92 Misc. Rep. 178, 155 N. Y. Supp. 259. SHALEK v. JETTER. (Supreme Court, Appellate Division, First Department. December 10, 1915.) Action by Frederick J. Shalek against J. Edward Jetter. No opinion. Motion denied, with $10 costs. Order filed. See, also, 155 N. Y. Supp. 975. SHAPIRO v. ROSENTHAL. (No. 8126.) (Supreme Court, Appellate Division, First Department. December 24, 1915.) Appeal from Trial Term, New York County. Action by Joseph Shapiro against Benjamin Rosenthal. From a judgment dismissing the complaint at the close of plaintiff's case on a trial, plaintiff appeals. Reversed, and new trial ordered. PER CURIAM. We think upon this evidence the court was required to submit the question as to the defendant's liability to the jury. The judgment is therefore reversed and a new trial ordered, with costs to appellant to abide the event. Order filed. Ingraham, P. J., and Dowling, J., dissenting and voting to affirm. Joseph SHEAVE v. LEHIGH VALLEY COAL CO. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Motion denied, with $10 costs. Order filed. Joseph SHENK, Applt., v. Michael GRAZIANO, impld., Respt. (Supreme Court, Appellate Division, First Department. December 24, 1915.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed. In the matter of the claim of William SHERIDAN for compensation under the Workmen's Compensation Law, respondent, v. P. J. GROLL CONSTRUCTION COMPANY, employer, and Employers' Liability Assurance Corporation, Ltd., insurance carrier, appellants. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) Motion granted. SILVERMAN et al. v. BALE-SNEDEKER CO. (Supreme Court, Appellate Division, First Department. December 10, 1915.) Action by Abraham I. Silverman and others against the Bale-Snedeker Company. No opinion. Application denied, with $10 costs. Order signed. In re Simon NAGER, JR., Inc. (Supreme Court, Appellate Division, Second Department. December 10, 1915.) In the matter of the voluntary dissolution of Simon Nager, Jr., Incorporated, etc. Susquehanna Coal Company, appellant. No opinion. Judgment and order affirmed, with costs. Jenks, P. J., not voting. Winan H. SMITH, as surviving partner, etc., applt., v. Edward A. EAMES, as surviving executor, etc.. respt. (Supreme Court, Appellate Division, Fourth Department. January 12, 1916.) Order affirmed with costs. All concur. Reuben L. SMITH, as administrator, etc., of Betsey A. Phillips, deceased, applt., v. William LAUGHLIN and Ida Laughlin, respts. (Supreme Court, Appellate Division, Third Department. January 5, 1916.) Judgment unanimously affirmed, with costs. SMITH V. VILLAGE OF LARCHMONT. (Supreme Court, Appellate Division, Second Department. December 10, 1915.) Appeal from Westchester County Court. Action by Mabel Wood Smith against the Village of Larchmont. Judgment for plaintiff, and defendant appeals. Affirmed. See, also, 153 N. Y. Supp. 1145. PER CURIAM. Judgment and order of the County Court of Westchester County affirmed, with costs. PUTNAM, J. (dissenting). Under Railroad Law (Consol. Laws, c. 49) § 178, the street railroad company was to keep in permanent repair the portion of the street two feet in width outside the trolley tracks. While the municipality is liable for defects within these lines, it is secondarily answerable, and hence may hold the railroad company for repayment of damages incurred through the company's neglect of its duty. City of Brooklyn v. Brooklyn City R. R. Co., 57 Barb. 497, 47 N. Y. 475, 7 Am. Rep. 469. Plaintiff on cross-examination admitted she had "settled" with the railroad company for $50, but had reserved her right to sue the village. While the writings are not before us, the reference plainly is to the statutory discharge of one tort-feasor, reserving the cause of action as to the others. Debtor and Creditor Law, § 230; Consol. Laws, ch. 12. The reservation of the right to sue the village, I think, imports a written instrument. Walsh v. N. Y. C. & H. R. R. R. Co., 204 N. Y. 58, 97 N. E. 408, 37 L. R. A. (N. S.) 1137, does not govern the disposition of this appeal, in my view. In the Walsh Case, defendant sought to raise the inference that by the word "settled" plaintiff had released and extinguished the entire cause of action. An artificial rule was invoked, without the premise to sustain it. But here we are taking plaintiff's own words in their natural and common meaning. She took $50 from the railroad, and let it out, and kept her cause of action (so far as she could) against the village. Thomas SNYDER, respt., v. Charles P. Bessie SNYDER, as admx., etc., respt., v. SOCIÉTÉ FRANÇAISE DES FILMS ET John SOLINSKIE, appellant, v. Philadelphia In the matter of the claim of Angelina In the Matter of the Assignment of Thomas Fred K. SPEER, applt., v. City of JAMES- Richard A. SPRINGS et al., Respts., v. In the matter of the claim of John SULLI- plainly inadequate as to require a reversal of COCK MUTUAL LIFE INS. CO., applt. (SuElmer J. TAYLOR, respt., v. JOHN HANpreme Court, Appellate Division, Fourth Department. January 5, 1916.) Judgment affirmed with costs. All concur. Mary SUTKAR, by Joseph Sutkar, her guardian ad litem, appellant, v. The NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, respondent. Joseph THEATRES CO. OF AMERICA, AppelSUTKAR, respondent, v. SAME, appellant. lant, v. GAUMONT CO., Respondent. (Su(Supreme Court, Appellate Division, Second De- preme Court, Appellate Division, Fourth Department. December 24, 1915.) Motions department. November 24, 1915.) Action by the nied. Halstead SWAN, respondent, v. Florence Berry SWAN, appellant. In re Lester P. DEEVES. (Supreme Court, Appellate Division, Second Department. January 7, 1916.) Motion granted. William SWANSON and Gustav Swanson, respondents, v. Alice DAVIS, appellant. (Supreme Court, Appellate Division, Second Department. December 30, 1915.) Order affirmed, with $10 costs and disbursements. No opinion. Jenks, P. J., and Thomas, Carr, Mills, and Rich, JJ., concur. Luella SWARTWOOD, as sole administratrix, etc., of Harleigh Swartwood, deceased. respt., v. LEHIGH VALLEY RAILROAD COMPANY, applt. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) Motion denied. TAISHOFF et al., Appellants, v. ELKEMA et al., Respondents. (Supreme Court. Appellate Division, First Department. December 10, 1915.) Action by Benjamin Taishoff and another against Annie V. Elkema and anothNo opinion. Order affirmed, with $10 costs er. and disbursements. Order filed. In the Matter of Reuben TALLY. (Supreme Court, Appellate Division, First Department. December 24, 1915.) Motion denied, with $10 costs. Settle order on notice. Mariam TASHJIAN, as Admx., etc., Appellant, v. Edward A. SPENGEMAN, Respondent. (Supreme Court, Appellate Division, First Department. December 30, 1915.) Appeal from Trial Term, New York County. Action by Mariam Tashjian, as administratrix, against Edward A. Spengeman. From a judgment for plaintiff, and order denying new trial, defendant appeals. PER CURIAM. We think there was a question of fact for the jury as to the negligence of the defendant and the absence of contributory negligence on the part of the plaintiff. The jury having had those questions submitted to them and having found a verdict of six cents for the plaintiff, such damages are so Theatres Company of America against the Gaumont Company. No opinion. Order reversed, with $10 costs and disbursements, and motion denied, with $10 costs. Held, that the papers considered upon the motion were insufficient to warrant the granting of the motion. THEDFORD-ELTZ COAL CO. v. HYMAN et al. (Supreme Court, Appellate Term, First Department. November 23, 1915.) Appeal from Municipal Court, Borough of Manhattan, Third District. Action by the Thedford-Eltz Coal Company against Isaac B. Hyman and another. From a judgment for defendants, plaintiff appeals. Affirmed. PER CURIAM. Judgment affirmed. SHEARN, J. (dissenting). I think this judgment is clearly against the weight of evidence. There is no question that the coal was delivered, and the attempt to avoid payment because of the transfer of the property to defendants' wives, and then to a corporation formed by defendants' wives, is an obvious cheat and fraud, and based upon highly technical grounds, which are overcome by the evidence establishing the agency of Ellis Hyman, father of the defendants, in fact as well as by implication and estoppel, which agency, so far as plaintiff is concerned, continued during the period represented by the bill in suit. Plaintiff refused to change the billing of the coal to the corporation, and the subsequent receipt of the coal and bills made out as theretofore were a ratification of the acts of the agent Ellis Hyman. and judgment directed in favor of the plainI recommend that the judgment be reversed, tiffs, with costs. In the Matter of Charles THURBER, decd. (Supreme Court, Appellate Division, First Department. January 14, 1916.) Motion granted, with $10 costs. Order filed. Margaret TIDD, respondent, v. C. B. SKINNER and S. W. Skinner, doing business under the name, style and title of C. B. Skinner & Company, appellants. (Supreme Court, Appellate Division, Third Department. January 18, 1916.) Motion granted. Robert S. TIERNAN, respondent, v. George L. HAVENS, appellant. (Supreme Court, Appellate Division, Second Department. Decem |