The New York Supplement

MEMORANDUM DECISIONS

Appellate Division, First Department. May 26, 1916.) Motion to dismiss appeal granted, with $10 costs. Order filed.

In the Matter of the Judicial Settlement of the Account of Proceedings of Fidalma DEL GENEVESE, as Administratrix, etc., of Virgilio Del Genovese, deceased. (Supreme Court, May Appellate Division, Second Department. 19, 1916.) Decree of the Surrogate's Court of Kings County affirmed, with costs. No opinion. Jenks, P. J., and Thomas, Carr, Stapleton, and Rich, JJ., concur.

and new trial granted, with costs to the appel-
lant to abide the event. Per curiam memoran-
dum. Held, that the court instructed the jury
that a greater degree of care was incumbent
on the defendant than the circumstances of the
case justified. All concur; Lambert and Mer-
rell, JJ., concurring in reversal and voting for
the dismissal of the complaint upon the ground
that it affirmatively appears that the plaintiff
did not slip upon the icy car step, but upon the
street after she had alighted.

Francis H. DOANE et al., Applts., v. Ethan
H. HESCOCK et al., Respts. (Supreme Court,
1916.) Determination and judgment (155 N.
No opinion.
Appellate Division, First Department. May 19,
Y. Supp. 210) affirmed, with costs.
June 30,
Order filed.

Gussie DEMARSKY v. STANDARD OIL CO. OF NEW YORK. (Supreme Court, Appellate Division, First Department. 1916.) Application denied, with $10 costs. Order signed.

Edward S. DENNISTON, respt., v. Charles A. FINNEGAN, individually, etc., applt. (Supreme Court, Appellate Division, Fourth Department. July 6, 1916.) Motion for leave to appeal to Court of Appeals denied, with $10

costs.

Ray DE POTY, an infant, etc., respt., v. Carl I. SHEPARD, applt. (Supreme Court, AppelMay 3, late Division, Fourth Department. 1916.) Motion granted, and appeal dismissed, with costs, including $10 costs of this motion.

Anna Best DEVINE, applt., v. James Miller RUSSELL and one, respts. (Supreme Court, May Appellate Division, Fourth Department. 10, 1916.) Order affirmed with $10 costs and disbursements. All concur.

Frederick H. DIEDERICH, Jr., respt., v. TRACTION COMPANY, applt. UNITED (Supreme Court, Appellate Division, Third Department. May 18, 1916.) Motion denied.

Edward J. DILLON, Applt., v. CITY OF NEW YORK, Respt. (Supreme Court, AppelMay 26, late Division, First Department. 1916.) Judgment affirmed, with costs. No opinOrder ion. Scott and Dowling, JJ., dissent. filed.

DIME SAVINGS BANK OF BROOKLYN, respondent, v. A. D. M. CO., Inc., appellant, (Supreme Court, Apand others, defendants. pellate Division, Second Department. June 2, 1916.) Order affirmed, with $10 costs and disNo opinion. Jenks, P. J., and bursements. Carr, Stapleton, Rich, and Putnam, JJ., concur.

DISTRICT NURSING ASSOCIATION OF BUFFALO, N. Y., applt., v. Hazel M. KOERNER, respt. (Supreme Court, Appellate DiviMay 26, 1916.) sion, Fourth Department. Judgment (91 Misc. Rep. 265, 154 N. Y. Supp. All concur; De An776) affirmed with costs. gelis, J., not sitting.

Emily DITTMAR, respt., v.

TIONAL RAILWAY CO., applt.

In the Matter of Johanna A. DOBROVOLNY, Respt., v. Wm. A. PRENDERGAST, as Comptroller, etc., Applt. (Supreme Court Appellate Division, First Department. May 26, 1916.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed.

Harriet DOCKSTADER, as executrix, etc., of
Margaret Dockstader, deceased, applt., v. NEW
(Supreme Court, Appellate Division,
YORK CENTRAL RAILROAD COMPANY,
respt.
Third Department. June 30, 1916.) Judgment
All concur, ex-
and order affirmed, with costs.
cept Kellogg, P. J., and Howard, J., dissenting.
Richard J. DONNOVAN v. EMPIRE TOW-
EL SUPPLY & STEAM LAUNDRY CO.
(Supreme Court, Appellate Division, First De-
Order signed.
partment. May 26, 1916.) Application denied,
with $10 costs.

Lieudella DOUD, respt., v. CITY OF CORN-
May 26, 1916.)
ING, applt. (Supreme Court, Appellate Divi-
All concur.
sion, Fourth Department.
Judgment aflirmed with costs.

v. CITY OF
Munson B. DOUD, respt.,
CORNING, applt. (Supreme Court, Appellate
Division, Fourth Department. May 26, 1916.)
Judgment affirmed with costs.

All concur.

ElSophia A. DOUGHERTY, Respt., v. bridge G. DUVALL et al., Applts. (Supreme Judgment and order affirmed, Court, Appellate Division, First Department. June 2, 1916.) with costs. No opinion. Order filed.

Sophia A. DOUGHERTY v. Elbridge G. DUVALL et al. (Supreme Court, Appellate DiviJune 23, 1916.) MoOrder filed. sion, First Department. tion denied, with $10 costs.

Thomas DUCKETT, respt., v. Charles R.
(Supreme Court, Appellate
PARDEE, applt.
All concur.
Division, Fourth Department. May 10, 1916.)
Judgment affirmed with costs.

Charles DUELL, respt., v. Carl J. NORDINTERNA-STROM, applt._(Supreme Court, Appellate DiJune 30, 1916.) (Supreme vision, Third Department.

Court, Appellate Division, Fourth Department. Judgment and order unanimously affirmed, with May 24, 1916.) Judgment and order reversed costs.

Thomas Harry EARNSHAW, applt., v. CITY
OF SYRACUSE, respt. (Supreme Court, Ap
pellate Division, Fourth Department. April 13,
1916.) Judgment and order aflirmed with cust.
All concur.

Samuel B. ECKERT, Respt., v. AUSTRO-
AMERICANA STEAMSHIP CO., Ltd., AppE
(Supreme Court, Appellate Division, First De
partment. June 2, 1916.) Determination af-
firmed with costs. No opinion. Dowling, J.
dissenting and voting to reverse, unless plain-
tiff consent to reduce recovery to $229.40, with
interest and costs. Order filed.

Lillian E. EDDY, respt., v. C. B. KEITH
(Supreme
FAMILY THEATER CO., applt.
Court, Appellate Division, Fourth Department.
June 15, 1916.) Judgment and order affirmed
with costs. All concur.

EDERHEIMER, Respt. (Supreme Court, Ap-
Emma EDERHEIMER, Applt., v. Leopold
pellate Division, First Department. May 26,
1916.) Judgment reversed, and new trial order-
ed, with costs to appellant to abide event. No
opinion. Settle order on notice.

Jedediah P. EDGERTON, applt., v. NEW
YORK STATE RAILWAYS, respt. (Supreme
Court, Appellate Division, Fourth Department.
May 24, 1916.) Judgment reversed and new
trial granted, with costs to appellant to abide
event: Held, that the question of the plaintiff's
contributory negligence, as well as that of the
defendant's negligence, was a question of fact
for the jury. All concur, except Foote, J., who
dissents, and De Angelis, J., not voting.

EDKINS for a writ of mandamus, Applt.. v. W.
In the matter of the application of Charles
W. WOTHERSPOON, as superintendent of
public works of the State of New York, respt.
(Supreme Court, Appellate Division, Third De-
Partment. June 30, 1916.) Order amended, so
as to read as follows: "Ordered that the order
so appealed from be and the same hereby is
unanimously affirmed, with $10 costs and dis-
bursements. This order is affirmed as a matter
of law and not in the exercise of discretion."
Sec, also, 158 N. Y. Supp. 710.

EDW. J. NOBLE CO., Inc., Respt., v. DA-
VID P. LEAHY REALTY CO., et al.. Applts.
(Supreme Court, Appellate Division, First De
$10 costs and disbursements, with leave to de-
partment. May 26, 1916.) Order affirmed, with
fendants to withdraw demurrer and to answer
on payment of costs in this court and in the
court below. No opinion. Order filed.

Kathryn T. EGAN, applt., v. INTERNA-
Edward A. EAMES et al., respts., v. BUF-TIONAL RY. CO., respt. (Supreme Court. Ap-
FALO & WILLIAMSVILLE ELECTRIC RY. pellate Division, Fourth Department. July 6,
CO., applt. (Supreme Court, Appellate Divi- 1916.) Motion for reargument denied with $10
sion, Fourth Department. May 24, 1916.) costs. Motion for leave to appeal to Court of
Judgment affirmed with costs. All concur.
Appeals denied.

In the Matter of Cornelius J. EARLEY, an
attorney. (Supreme Court, Appellate Division,
First Department. May 12, 1916.) Referred
to official referee. Settle order on notice.

Estelle E. EICHENBRONER, respondent, v.
Edward EICHENBRONER, appellant. (Su-
preme Court, Appellate Division, Second De-
partment. June 9, 1916.) Order affirmed, with

$10 costs and disbursements, and stay vacated. | appeal denied. Judgment unanimously affirm No opinion. Jenks, P. J., and Thomas, Carr, Mills, and Rich, JJ., concur.

Louis EIG, as Admr., etc., Applt., v. Martin SCHRENKEISEN, Jr., Respt. (Supreme Court. Appellate Division, First Department. June 23, 1916.) Judgment affirmed, with costs. No opinion. Order filed.

Frederick S. EISEMANN, Respt., v. Florence A. HAZARD, Applt. (Supreme Court, Appellate Division, First Department. June 16, 1916.) Judgment and order affirmed, with costs. No opinion. Order filed. See, also, 161 App. Div. 703, 146 N. Y. Supp. 685.

Francis W. ELDER, Respt., v. Robert W. M. GUNN, Applt. (Supreme Court, Appellate Division. First Department. May 12, 1916.) Or der affirmed, with $10 costs and disbursements, on the authority of Ulner v. Doran, 167 App. Div. 259, 152 N. Y. Supp. 655. Order filed.

In the Matter of John E. ELLISON, an attorney.

ed, with costs. This court finds that the Repub lican supervisors were justified by the facts in determining that the Elmira Advertiser did not, at the time of the designation, fairly represent the Republican Party.

EMPIRE TRUST COMPANY, plaintiff, v. Charles W. COLEMAN, as executor, etc., et al., defendants. Charles W. Coleman, as executor, etc., appellant; William J. Youngs, referee, respondent. (Supreme Court, Appellate Division, Second Department. November 19, 1915.) Motion denied.

Josephine M. FAIRCHILD, appellant, v. SCARSDALE ESTATES, respondent, White Plains Development Company et al., defend(Supreme Court, Appellate Division, Second Department. June 23, 1916.) Motion for leave to appeal to the Court of Appeals denied.

ants. (Supreme Court, Appellate Division, First Department. June 30, 1916.) Motion

denied. Settle order on notice.

ELMIRA ADVERTISER ASSOCIATION, applt., v. Francis M. HUGO, as Secretary of State of the State of New York, et al., respts. (Supreme Court, Appellate Division, Third Department. June 30, 1916.) Motion to dismiss

Annie FARLEY, as Admx., v. Peter J. CAREY et al. (Supreme Court, Appellate Division, First Department. May 26, 1916.) denied, with $10 costs. Order filed.

Motion

In the matter of the petition of William W. | FARLEY, as State Commissioner of Excise, respondent, v. Francesco FRANZESE, appellant. (Supreme Court, Appellate Division, Second Department. November 19, 1915.) Order affirmed, with $10 costs and disbursements. No opinion. Jenks, P. J., and Carr, Stapleton, and Putnam, JJ., concur.

John FARRELL, Applt., v. Wm. H. ARCHIBALD, Respt. (Supreme Court, Appellate Division, First Department. May 26, 1916.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed.

John FARSON et al., as Committee, etc., and ano., Respts., v. CROISIC REALTY CO., Impld., etc., Applt. (Supreme Court, Appellate Division, First Department. June 9, 1916.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed.

John FARSON et al., Plffs., v. CROISIC REALTY CO., Impld., etc., Respt., and Robert H. Montgomery, as Receiver, Applt. (Supreme Court, Appellate Division, First Department. June 9, 1916.) Appeal dismissed, with $10 costs and disbursements to respondent payable by the appellant personally. No opinion. Or

der filed.

John FARSON et al., as a Committee, etc., et al., Respts., v. NEW YORK COUNTY NATIONAL BANK, Applt. (Supreme Court, Appellate Division, First Department. June 16, 1916.) Order affirmed, with $10 costs and disbursements, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and in the court below. No opinion. Order filed.

Frederick FARTHING, appellant, v. Louis H. STROUSE, respondent, and Marion Strouse, defendant. (Supreme Court, Appellate Division, Second Department. June 23, 1916.) Motion denied, without costs.

Nathan FEDELMAN, appellant, V. ST. DEAN REALTY COMPANY, respondent. (Supreme Court, Appellate Division, Second Department. June 23, 1916.) Judgment and order unanimously affirmed, with costs. No opinion.

required by the judgment, and deposit same with the clerk of Kings county, also give an undertaking of $500 under Code, §§ 1326 and 1352, to perfect her appeal, in which case the defendant will be discharged from custody.

Max FERTIG, Respt., v. Henry C. STURGES, Applt. (Supreme Court, Appellate Di vision, First Department. May 12, 1916.) Order reversed, with $10 costs and disbursements, and motion granted, with $10 costs. opinion. Order filed.

Emil FICK, Jr., an infant, etc., et al., appellants, v. NEW YORK & LONG ISLAND TRACTION COMPANY, defendant, and James P. Kohler, respondent. (Supreme Court, Appellate Division, Second Department. June 9, 1916.) Order modified, so as to make the stipulation required by it to be for $50 and respondent's actual disbursements in each sc tion, instead of 20 per cent. of the recovery or settlement, and to give him a lien to that amont upon each cause of action, and, as so modifed, affirmed. We make this disposition of the ap peal upon the ground that the person who precured from the plaintiff the retainers failed to reveal to the plaintiff his connection with be relieved from such retainer; but, as it does respondent, and that therefore plaintiff should not appear that respondent was a participat in such action, we think he should be allowed the fair value of his actual services and disbursements to the making of the motion, and we fix the value of the services at $150, or in each case. Leave is granted to him, apa the settlement of the order here, to file an ffidavit showing such actual disbursements; copy of such affidavit to be served upon the p posing attorney with the notice of settlement. Jenks, P. J., and Thomas, Carr, Mills, and Rich, JJ., concur.

FINANCE OIL CO. and one, respts., v. John L. SNYDER, impleaded, etc., applt. (Supreme Court, Appellate Division, Fourth Department. April 19, 1916.) Judgment affirmed with costs. All concur, Lambert, J., not sitting.

Hyman FINESTONE and one, applts., v. Melvin KILEY, respt., impleaded with Charles Hyman. (Supreme Court, Appellate Division Fourth Department. May 26, 1916.) Judgment and orders affirmed with costs. All concur.

William F. FEECK, as administrator of the J. Albert FISH v. Adrian ISELIN, Jr. goods, chattels, and credits of William B. Bar (Supreme Court, Appellate Division, First Detholomew, respt., v. DELAWARE & HUDSON partment. June 23, 1916.) Motion granted; COMPANY and New York Central Railroad question certified. Order filed. Company, as successor, etc., of New York Central & Hudson River Railroad Company, applt. (Supreme Court, Appellate Division, Third Department. June 30, 1916.) Motion for reargument denied.

Anna FENN, plaintiff, v. Marie KIRSTEIN, defendant. (Supreme Court, Appellate Division, Second Department. June 23, 1916.) Motion for stay denied, unless within 10 days defendant execute the two bonds and mortgage

J. Albert FISH v. Frank A. VANDERLIP. (Supreme Court, Appellate Division, First Department. May 26, 1916.) Motion denied. Order filed.

Robert Lee FISHER, Applt., v. Florence E FISHER, Respt. (Supreme Court, Appellate Division, First Department. May 2 1916.) Order affirmed, with $10 costs and disbursements. No opinion. Order filed.

Florence S. FITHIAN v. DEGNON CONTRACTING CO. (Supreme Court, Appellate Division, First Department. June 9, 1916.) Application granted. Order signed.

Michael H. FLAHERTY and William T. Burke, respts., v. Frany A. KEENEY, applt. (Supreme Court, Appellate Division, Third Department. June 30, 1916.) Judgment and order unanimously affirmed, with costs.

Rosalie FLATEAU, Plaintiff-Appellant, v. William H. BEERS and Lawrence M. Luddington, doing business as West Side Storage Warehouse, Defendants-Respondents. (Supreme Court, Appellate Term, First Department. May 31, 1916.) Appeal from Municipal Court, Borough of Manhattan, Seventh District. Judgment dismissing the complaint, and plaintiff appeals. Reversed, and new trial granted, as to defendant Luddington, and affirmed as to defendant Beers.

PENDLETON, J. This is an appeal by plaintiff from a judgment dismissing the complaint, with $20 costs, entered on a decision granting defendants' motion, made at the opening of the trial, to dismiss the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The action is to recover money paid under duress. The gravamen of the complaint is the duress exercised by defendant Luddington and the payment to him by reason thereof. All the allegations as to the contract with defendant Beers are by way of introduction and explanation. No charge of duress is made against defendant Beers, or payment to him, and as to him no cause of action is shown. Judgment should be reversed, with $15 costs, as to defendant Luddington, and a new trial granted; as to defendant Beers, the judgment should be affirmed, with $10 costs. All concur.

In the matter of the petition in summary pro- Isidor FREY, Respt., v. E. REGENSBURG ceedings of Con FORD, landlord, respt., v. Mrs. & SONS, Applt. (Supreme Court, Appellate

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