App. Div.] Second Department, April, 1921. Clarke, P. J., Dowling, affirmed, with costs. No opinion. Present Present SIMON BRINN and Another, Respondents, v. HARRY HINDLEMANN, INC., Appellant.― Judgment affirmed, with costs. No opinion. Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. GRAY-ANDREWS CORPORATION, Respondent, v. LEASE BROS. MOTOR CO., INC., Appellant.- Judgment and order affirmed, with costs. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. --- JOHN JONSCHEKOWITZ, Respondent, v. JOHanna JonscheKOWITZ, Appellant. Judgment affirmed, without costs. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. - VICTOR YALO, Respondent, v. LENOX SAND & GRAVEL CO., INC., Appellant.- Judgment and order affirmed, with costs. No opinion. Present Clarke, P. J., Dowling, Smith, Page and Greenbaum, JJ. SECOND DEPARTMENT, APRIL, 1921. PEDER PEDERSEN, Respondent, v. HYMAN DOLGER, Appellant. Motor vehicles · bill of particulars not limiting general charges of negligence · evidence sustaining verdict. -- Appeal by defendant from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 24th day of May, 1920, upon the verdict of a jury for $10,000 in an action to recover damages for negligent injury, and also from an order entered in said clerk's office on the 12th day of July, 1920, denying defendant's motion for a new trial made upon the minutes. PER CURIAM: We find no material variance between the bill of particulars and the evidence. The order for the bill of particulars, if there was an order, is not printed in the record, and the statement in paragraph 2 of the bill of particulars does not limit the general charges of negligence in the complaint. And in any case defendant was not misled or prejudiced. The facts on both sides were fully gone into. There was evidence that plaintiff was thrown twenty feet by the impact and that defendant's automobile traveled the twenty feet and did not stop until it stood over the plaintiff's body. Defendant testified that his automobile could have been stopped in two or three feet. On these facts, as well as the severe injuries sustained by plaintiff, the jury could find excessive speed. Plaintiff's witness Connaughton testified that after the accident, with the plaintiff underneath, defendant's automobile pointed east, towards Prospect Park, which negatived defendant's rather unusual claim that coming north on Coney Island avenue, or Prospect Park Southwest, on his way to Manhattan, and desiring to reach Fourth avenue, Brooklyn, he was endeavoring to leave Coney Island avenue, the direct road, to turn to the west into Seeley street, which did not lead to Fourth avenue. The questions of negligence and Second Department, April, 1921. [Vol. 196 contributory negligence were clearly for the jury. The judgment and order should be affirmed, with costs. Blackmar, P. J., Mills, Rich, Putnam and Kelly, JJ., concur. Judgment and order affirmed, with costs. In the Matter of the Application of CHARLES PASCHAL BARRE for Admission to the Bar. (From the State of South Carolina.) — Application granted. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. In the Matter of the Application of WALTER A. HARDMAN for Admission to the Bar. (From the District of Columbia.) - Application granted. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. In the Matter of the Application of LINCOLN W. MORRISON for Admission to the Bar. (From the State of Connecticut.) - Application granted. Present - Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. In the Matter of the Application of H. DORSEY SPENCER for Admission to the Bar. (From the Commonwealth of Massachusetts.) — Application granted. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. In the Matter of the Application of ARTHUR H. STETSON for Admission to the Bar. (From the State of Maine.) — Application granted. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. In the Matter of the Application of ALEXANDER STRONACH for Admission to the Bar. (From the State of North Carolina.) Application granted. Present - Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. WILLIAM ASH, Respondent, v. PEEKSKILL ICE COMPANY, Appellant.— Motion denied, without costs. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. EDWARD P. BAKER, Respondent, v. ELIZABETH G. COOPER and Others, Appellants.- Motion to dismiss appeal denied, without costs. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. RALPH W. BOOTH, JR., Respondent, v. NEW PROCESS CORK COMPANY, Appellant.- Motion granted, without costs. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. CASALINO CONTRACTING COMPANY, INC., Appellant, v. KEAP CONSTRUCTION COMPANY, Respondent. Motion denied. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. THE CITY OF NEW YORK, Respondent, v. THE FEDERAL HOLDING COMPANY and Others, Appellants.- Motion to dismiss appeal granted, unless appellants perfect the appeal, place the case on the calendar and be ready for argument on April 15, 1921, for which date the hearing of this cause is specially assigned. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. JOHN L. CLYDE, Respondent, v. WALTER WOOD, etc., Appellant.- Motion denied, without costs. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. GEORGE H. FRASER, Appellant, v. HORACE L. KENT, Respondent.Motion denied, without costs. Present Mills, Rich, Putnam, Blackmar and Kelly, JJ. App. Div.] Second Department, April, 1921. MAX A. GOLDBERG, Appellant, v. SUNBEAM CHEMICAL COMPANY, INC., Respondent.—Motions denied, without costs. Mills, Putnam, Blackmar and Kelly, JJ., concur; Jenks, P. J., not voting. JOHN H. ISQUITH, Respondent, v. CLAIRE G. HOLLENDER ISQUITH, Appellant. Motion to dismiss appeal denied on condition that appellant perfect the appeal, place the case on the calendar for the May term and be ready for argument when reached; otherwise, motion granted, with ten dollars costs. Present-Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. FRANK KEIGHTLY, Respondent, v. ALBERT E. DONNELLY, Appellant.Motion to dismiss appeal granted, without costs. Present - Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. LANGDON HOLDING CORPORATION, Respondent, v. EMANUEL MEHL, Appellant.- Motion for stay granted upon condition that appellant perfect the appeal, place the case on the calendar and be ready to argue the same on Friday, April 15, 1921, for which date the cause is especially set down. Present Mills, Rich, Putnam and Kelly, JJ. The AARON MARTIN, Appellant, v. MAURICE O'KEEFE, as Commissioner of Public Safety of the City of Yonkers, Respondent. Motion denied. omission of the authorities to reinstate the relator is not before us. It may be presented to us directly. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. HARRIET J. McCOUN, Appellant, v. AMY K. PIERPONT and NELLY CRANZ, Respondents. Motion to resettle order of affirmance granted so far as to make the additional findings: 1. That prior to March 27, 1917, the date of the last sale for unpaid taxes for either 1913 or 1914, there had not been filed any other map of any property at Long Beach, L. I., than the one entitled "Estates of Long Beach, Long Beach, L. I., Map No. 1, March, 1907, William H. Reynolds, President, Chas. W. Leavitt, Jr., Landscape Eng., 220 Broadway, New York City," which was filed in the Nassau county clerk's office on April 20, 1911, under the file No. 31. 2. The court finds and makes reference to Exhibit C, purporting to be a copy of page 282 of the assessment roll, and also directs a finding referring to the copy of the North Hempstead Gazette and of the Nassau County Post, marked Cranz exhibits D and E respectively. Otherwise motion denied. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. Settle order on notice. PHILIP H. REID and SOLOMON B. MANDELL, etc., Appellants, v. PRODUCTS MANUFACTURING COMPANY, Respondent.- Motion for stay granted, and case set down peremptorily for Monday, May 2, 1921. Present-Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. NOZERA MAMAN AKEL SAAD, Respondent, v. HANNA H. SAAD, etc., Appellant.- Appeal dismissed, without costs. Present - Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. NELLIE M. SALMON, Respondent, v. ВоотH & FLINN, LTD., Appellant.— Motion for leave to appeal to the Court of Appeals denied, but stay continued thirty days to enable appellant to apply to the Court of Appeals. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. Second Department, April, 1921. [Vol. 196 ARTHUR C. SALMON, Respondent, v. BOOTH & FLINN, LTD., Appellant.— Motion for leave to appeal to the Court of Appeals denied, but stay continued thirty days to enable appellant to apply to the Court of Appeals. Present-Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. CHARLOTTE T. SCHAAF, as Administratrix, etc., Respondent, v. FIRESTONE TIRE AND RUBBER COMPANY and Another, Appellants.- Motion for reargument or for leave to appeal to the Court of Appeals denied, without costs. Present Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. CHARLOTTE T. SCHAAF, as Administratrix, etc., Respondent, v. FIRESTONE TIRE AND RUBBER COMPANY and Another, Appellants.-The motion for reargument or for leave to appeal to the Court of Appeals having been this day denied (ante, p. 944), the motion to vacate the levy of the execution is also denied, without costs. Present-Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. CORA B. WIGHTMAN, Respondent, v. RICHARD WIGHTMAN, Appellant.Motion denied, without costs. Present Jenks, P. J., Putnam, Blackmar, Kelly and Jaycox, JJ. LEROY BRASWELL, Respondent, v. IDEELE S. BRASWELL, Appellant.— Order affirmed, without costs. No opinion. Mills, Rich, Blackmar, Kelly and Jaycox, JJ., concur. (Appeal MARIE U. DIXEY, Respondent, v. HENRY E. DIXEY, Appellant. No. 1.) Judgment unanimously affirmed, with costs. No opinion. Present Mills, Rich, Putnam, Blackmar and Kelly, JJ. GEORGE L. FILEMAN and ALEXANDER PEARSON, Appellants, v. JOHN J. MOONEY, Respondent.— Judgment reversed and new trial granted, with costs to abide the event, on the ground that a cause of action was proven by the plaintiffs which should have been submitted to the jury. It was held upon the former appeal that plaintiffs might disaffirm the contract and seek to recover the sums paid on the contract. [184 App. Div. 535.] This is precisely what they sought to do. Jenks, P. J., Mills, Rich, Blackmar and Jaycox, JJ., concur. ROSA GORDON, Appellant, v. ISRAEL EBNER, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Mills, Rich, Blackmar and Jaycox, JJ., concur. In the Matter of the Petition of EARL L. COLOPY, Appellant, v. CAROLINE V. COLOPY, Respondent, to Have Awarded to Him the Custody of VIRGINIA C. COLOPY, an Infant.- Order modified so as to give the general custody of the child to the mother, but to provide that, on condition of petitioner's paying to her the sum of five dollars per week toward the support of the child, he be allowed to visit the child at the mother's home, and to take it out with him at reasonable times; and as so modified affirmed, without costs. No opinion. Mills, Rich, Putnam, Blackmar and Kelly, JJ., concur. Settle order on notice. GEORGE S. KRIEGER, Respondent, v. JOSEF FRENKEL and Others, Appellants. Order refusing to vacate defendants' examination affirmed, with ten dollars costs and disbursements. No opinion. Mills, Rich, Putnam, Blackmar and Kelly, JJ., concur. MAE LESCH, Respondent, v. Leonard Lescн, Appellant.— Order affirmed, with ten dollars costs and disbursements. No opinion. Mills, Rich, Putnam, Blackmar and Kelly, JJ., concur. THE PEOPLE OF THE STATE OF NEW YORK ex rel. EMMA WARNKE, Appellant, Respondent, v. ELIZABETH WARNKE, Respondent, Appellant.- Order affirmed, without costs. No opinion. Mills, Rich, Putnam, Blackmar and Kelly, JJ., concur. DAVID J. Ross, Respondent, v. WILLIAM H. BARRETT, as President of THE ADAMS EXPRESS COMPANY, Appellant.- Judgment unanimously affirmed, with costs. No opinion. Present - Mills, Rich, Putnam, Kelly and Jaycox, JJ. R. NELSON SPATES, Respondent, v. HARRY H. MOSES, Appellant.Order affirmed, with ten dollars costs and disbursements. No opinion. Mills, Rich, Putnam, Blackmar and Kelly, JJ., concur. SUNRISE STORage and Warehouse CorpoRATION, Respondent, v. NEW YORK CENTRAL RAILROAD COMPANY, Appellant.- Judgment and order unanimously affirmed, with costs. No opinion. Present- Mills, Rich, Putnam, Blackmar and Kelly, JJ. JOHN RICHARD THORNDIKE, Respondent, v. THOMAS W. LUDLOW and Others, Appellants, Impleaded with HARRIET K. LUDLOW and Another, Defendants. Judgment unanimously affirmed, with costs. No opinion. Present Mills, Rich, Putnam, Blackmar and Jaycox, JJ. TRAUB-SCHOENBACH AMUSEMENT COMPANY, INC., Appellant, v. HARRY TRAUB and Others, Respondents. We are of the opinion the title to the lease, the subject of this action, is vested in plaintiff, which is the proper party plaintiff to enforce the cause of action, and the demurrer to the second separate defense is sustained. The demurrer to the first separate defense is also sustained. The order is, therefore, reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs, with leave to defendants to plead over within twenty days. Mills, Rich, Blackmar and Kelly, JJ., concur; Jaycox, J., not voting. TRENT REALTY COMPANY, INC., Respondent, V. THE CITY OF NEW YORK and Others, Appellants.- Judgment affirmed, with costs. No opinion. Jenks, P. J., Mills, Blackmar and Kelly, JJ., concur; Jaycox, J., not voting. HENRY VOLLWEILER, Respondent, v. THE CITY OF NEW YORK and Others, Appellants. Judgment affirmed, with costs. No opinion. Jenks, P. J., Mills, Blackmar and Kelly, JJ., concur; Jaycox, J., not voting. LAURA WASHINGTON, Appellant, v. WILLIAM BUCHANAN, Respondent.— Order affirmed, with ten dollars costs and disbursements. No opinion. Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ., concur. ELIZABETH S. BRICKMAN, Appellant, v. HARRY BRICKMAN, Respondent.— Appeal dismissed, with ten dollars costs. Present - Jenks, P. J., Mills, Putnam, Blackmar and Kelly, JJ. LOUIS BROWN, Respondent, v. PHILIP SALZBERG, Appellant.- Motion denied, on condition that appellant perfect the appeal, place the case on the calendar for the May term and be ready for argument when reached; APP. DIV.-VOL. CXCVI. 60 |