First Department, January, 1921. [Vol. 195. ABRAHAM L. BUSCHMAN, Appellant, v. NATHAN H. BUSCHMAN and Others, Respondents.- Order affirmed, with ten dollars costs and disbursements. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.; Smith, J., dissenting. SOLOMON GREENBAUM and Another, Copartners, etc., Respondents, v. JACOB KEMPF, INC., Appellant.- Order affirmed, with ten dollars costs and disbursements. No opinion. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ.; Clarke, P. J., and Page, J., dissenting. HOWARD MAJOR, Appellant, v. FRANK FRANKEL, Respondent.— Order affirmed, with ten dollars costs and disbursements, the date for the examination to proceed to be fixed in the order. No opinion. Settle order on notice. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. HARRY SAMWICK, Respondent, v. BLINDERMAN & COHEN AMUSEMENT COMPANY, INC., and Another, Impleaded with ELIAS MAYER and Others, Appellants, Impleaded with Others.- Order affirmed, with ten dollars costs and disbursements. No opinion. Present- Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. SOLOMON GOLUB V. ALBERT B. HISE.- Motions to dismiss appeals denied, with ten dollars costs. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. EMPIRE DEVELOPMENT COMPANY and Others v. TITLE GUARANTEE AND TRUST COMPANY.-Motion to dismiss appeal granted, with ten dollars costs. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. JOEL MARKS V. JACOB MAYERS.- Motion to dismiss appeal granted, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. JOSEPH GREENBERG V. RICHARD GODFREY.-Motion to dismiss appeal granted, with ten dollars costs, unless appellant complies with terms stated in order. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. JOHN MULDOON V. DOCK CONTRACTOR COMPANY and Others.- Motion to dismiss appeal granted, with ten dollars costs, unless appellants comply with terms stated in order. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. In the Matter of JENNIE L. BROBST, Deceased.- Motion to dismiss appeal granted, with ten dollars costs. Smith, Page and Greenbaum, JJ. Present - Clarke, P. J., Dowling, In the Matter of JOHN T. PRYER, Deceased.-Motion to dismiss appeal granted, with ten dollars costs. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. 434 BROADWAY REALTY CORPORATION V. STONE & SCHLEIMER, Impleaded, etc.— Application denied, with ten dollars costs. Order signed. PresentClarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. HARRY GORDON V. ASTORIA COGNAC AND LIQUOR RECTIFYING COMPANY, INC., and Others.- Application denied, with ten dollars costs, and stay vacated. Order signed, Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ, App. Div.] First Department, January, 1921. BERNARD PHILLIPS & COMPANY, INC., v. MAYER SHIRT COMPANY.— Application denied, with ten dollars costs. Order signed. PresentClarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. YORKVILLE MOTOR COMPANY, INC., V. SAMUEL P. CRONER.- Application granted. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. MAX MELNICK V. BORE BORDEN.- Application denied, with ten dollars costs. Order signed. Present- Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. AMERICAN NATIONAL BANK OF WAUSAU, Wis., v. HARRY J. BUTLER and Others. Application denied, with ten dollars costs. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. HARRY M. JAMES V. EIGHTH AVENUE RAILROAD COMPANY.- Application denied, with ten dollars costs. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. JUAN ALONZO V. ELBERT & COMPANY, INC.- Application denied, with ten dollars costs, and stay vacated. Order signed. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. WILLIAM LENNOX and Others v. ANTON F. SCIBILIA and Others. Ication denied, with ten dollars costs. Order signed. Present P. J., Dowling, Smith, Page and Greenbaum, JJ. Appli - Clarke, SAMUEL J. GOLDSMITH and Others, Trustees, etc., v. ARTHUR J. BALDWIN and Others, as Surviving Trustees, etc.- Motion denied, with ten dollars costs. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. FIRST NATIONAL BANK OF MISSION V. ROBERT T. COCHRAN and Others.Motion denied, with ten dollars costs. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. BARBARA SCHNATZ V. GEORGE J. SCHNATZ and Others.- Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. HARRY B. JAMES and Others v. GORDON MILLER.- Motion denied, with ten dollars costs. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. THE PEOPLE OF THE STATE OF NEW YORK ex rel. PoST & MCCORD, INC., v. JACOB A. CANTOR and Others, etc.- Motion granted. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. SAMUEL LASHER V. METROPOLITAN SAVINGS BANK.-Motion denied, with ten dollars costs. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. UNION EXCHANGE NATIONAL BANK OF NEW YORK V. SAMUEL L. JOSEPH.-Motion granted; question certified. Present - Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. In the Matter of JAMES BUCHANAN BRADY, Deceased.— Motion denied, with ten dollars costs. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. In the Matter of NEWTOWN GAS COMPANY V. PUBLIC SERVICE COM Second Department, January, 1921. MISSION. Motion denied, with ten dollars costs. Present [Vol. 195. Clarke, P. J., HARRY SAMWICK V. BLINDERMAN & COHEN Amusement Company, Inc., and Another, Impleaded with ELIAS MAYER and Others. Motion denied, with ten dollars costs. Present- Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. CHARLES J. SILVER V. AKRON TIRE COMPANY OF DELAWARE and Others.Motion for stay pending appeal granted. Settle order on notice. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. LITTLEFIELD-SHEPPERD COMPANY, INC., V. JOHN C. DUNN.- Motion denied, with ten dollars costs, and stay vacated. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. In the Matter of JENNIE L. BROBST, Deceased. Motion denied, with ten dollars costs. Present- Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. MABEL A. LUDLAM V. HENRY LUDLAM and Others.- Motion for allowance denied, except as allowed by the order of reversal entered herewith. Present - Clarke, P. J., Laughlin, Dowling, Page and Greenbaum, JJ. MABEL A. LUDLAM V. HENRY LUDLAM and Others.- Motion for restitution denied, except as allowed by the order of reversal entered herewith. Present Clarke, P. J., Laughlin, Dowling, Page and Greenbaum, JJ. SECOND DEPARTMENT, JANUARY, 1921. DONALD MCKELLAR, Respondent, v. AMERICAN SYNTHETIC DYES, INC. Appeal - Appellant. amendment of order and judgment of Appellate Division to specify particular question of fact on which reversal based. Motion to amend the order and judgment of the Appellate Division, Second Department, entered upon its decision (181 App. Div. 371), so as to specify the particular question of fact upon which the reversal is based. JENKS, P. J.: The order entered upon our decision herein (181 App. Div. 371) simply reversed the judgment and order appealed from and granted a new trial. After motion made in the Court of Appeals, and by permission of that court (229 N. Y. 603), the defendant moves that we amend the order and judgment to specify the particular question of fact upon which our reversal is based. Our opinion states that we found error in the charge to the jury. Inasmuch as the error was not the subject of objection, exception or request, the Court of Appeals decided that the erroneous ruling constituted a question of fact," in that the question presented is whether the party has had a fair trial. (Mc Kellar v. American Synthetic Dyes, Inc., 229 N. Y. 106.) We amend our judgment and order so that said judgment and order state that this court in the exercise of its 66 App. Div.] Second Department, January, 1921. discretion determines and adjudges that the defendant did not have a fair trial, and, therefore, the judgment and order should be reversed and a new trial should be granted, with costs to abide the event, and that such reversal is based upon the question of fact that the court erred in charge and instruction to the jury as to the meaning of the contract of employment and as to what was to be found by the jury in order to entitle the plaintiff to a verdict upon said contract. Mills, Rich, Putnam and Blackmar, JJ., concur. Motion to resettle order granted nunc pro tunc as of November 5, 1920. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. THE LONG ISLAND RAILROAD COMPANY and THE STATEN ISLAND RAPID TRANSIT RAILWAY COMPANY, Appellants. Appeal by the defendants from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 31st day of December, 1920, enjoining them, pendente lite, from increasing certain rates. JENKS, P. J. (orally): I am ready to announce the decision. Without passing upon the merits of any question presented, we are of opinion that the jurisdiction was exclusively that of the Federal courts. Disposing of this appeal upon that point only, we reverse the order which granted the injunction, without costs, and deny the injunction, without costs. If the case is relieved of injunction, we grant the application for appeal. You may submit an order with the proposed question. If the Attorney-General will serve upon Mr. Keany a copy of the proposed order, Mr. Keany may present his proposed order to me. The motion for a stay will be denied. Rich, Putnam, Blackmar and Jaycox, JJ., concur. Order reversed, without costs, and motion denied, without costs. Motion for leave to appeal to the Court of Appeals granted. Settle order granting leave to appeal before the Presiding Justice. PATRICK J. DRISCOLL, Respondent, v. MARY A. DRISCOLL, as Administratrix, etc., of JOHN J. DRIS COLL, Deceased, Appellant.-Motion denied, without costs. Present Jenks, P. J., Mills, Blackmar, Kelly and Jaycox, JJ. ARTHUR M. FLADE, Respondent, v. MATHILDA M. GERHOLD and Others, Appellants. Motion denied on condition that appellants perfect the appeal, place the case on the calendar for the February term and be ready for argument when reached; otherwise, motion granted, with ten dollars costs. Present Jenks, P. J., Mills, Blackmar, Kelly and Jaycox, JJ. In the Matter of an Application for Leave to Enter into Possession and to Manage and Control and Receive the Rents of Real Property Left by CHARITY C. MOULD, Deceased.— Motion denied, without costs. Present Jenks, P. J., Mills, Blackmar, Kelly and Jaycox, JJ. In the Matter of the Application of the TRANSIT CONSTRUCTION COMMISSIONER for the Appointment of Three Commissioners, etc. Modification Second Department, January, 1921. [Vol. 195. Eastern Line. Route No. 68. Motion denied, of Fourteenth Street without costs. Present - Kelly, JJ. In the Matter of the Estate of JERONEMUS S. UNDERHILL, Deceased.Motion denied, without costs. Kelly and Jaycox, JJ. Present - Jenks, P. J., Mills, Blackmar, VIRA CORNELL KINEON, Respondent, v. OSCAR N. HOFFMAN and HELEN GREIFF, Appellants, Impleaded with Others.- Motion for reargument denied. Motion for leave to appeal to the Court of Appeals denied, without costs. But the appellants are granted a stay of thirty days of sale of the stock by the receiver to afford opportunity to apply to the Court of Appeals for leave to appeal to that court. Present - Jenks, P. J., Mills, Blackmar, Kelly and Jaycox, JJ. ANNA LEVINE, Respondent, v. HENRY GORDON, as Executor, etc., Appellant. Motion denied on condition that appellant perfect the appeal, place the case on the calendar for the February term and be ready for argument when reached; otherwise, motion granted, with ten dollars costs. Present Jenks, P. J., Mills, Blackmar, Kelly and Jaycox, JJ. ANTONIO MAROTTA, Respondent, v. LINDLEY M. GARRISON, as Receiver of the CONEY ISLAND AND BROOKLYN RAILROAD COMPANY, Appellant.- Jenks, P. J., Mills, Blackmar, Motion denied, without costs. Present Kelly and Jaycox, JJ. CITY OF NEW YORK, Respondent, v. CHARLES STEEN, INC., Appellant. (Appeal No. 1.) — Order of the Appellate Term affirmed, with costs. No opinion. Mills, Rich, Blackmar and Jaycox, JJ., concur; Jenks, P. J., dissents. CITY OF NEW YORK, Respondent, v. CHARLES STEEN, INC., Appellant. (Appeal No. 2.) — Order of the Appellate Term affirmed, with costs. No opinion. Mills, Rich, Blackmar and Jaycox, JJ., concur; Jenks, P. J., dissents. THE COMMISSIONER OF PUBLIC CHARITIES OF THE CITY OF NEW YORK, on Complaint of MAUD CORDES, Respondent, v. SIGMUND MILAU, Appellant. Order of filiation of the Court of Special Sessions affirmed, with costs. No opinion. Jenks, P. J., Mills, Rich, Blackmar and Jaycox, JJ., concur. JULIA DEITEL, as Administratrix, etc., of LOUIS DEITEL, Deceased, Respondent, v. JACOB GROSSMAN, Appellant.- Order affirmed, with ten Jenks, P. J., Mills, Putnam, dollars costs and disbursements. No opinion. Blackmar and Kelly, JJ., concur. JOSEPH DOWLING, Appellant, v. AMERICAN ELEVATOR COMPANY and Another, Respondents.― Judgment and order unanimously affirmed, with - Jenks, P. J., Mills, Rich, Blackmar and costs. No opinion. Present Jaycox, JJ. LYMAN B. JORDAN, Appellant, v. THE VILLAGE OF PORT CHESTER, Respondent. Judgment reversed and new trial granted, with costs to abide the event, upon the ground that the preliminary notice was sufficient under the authority of Sheehy v. City of New York (160 N. Y. 139) and |