GIBBS, Appellant, v. CONROY BROS., Respondent. (Court of Appeals of New York. Nov. 3, 1916.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (169 App. Div. 937, 154 N. Y. Supp. 1123), entered June 25, 1915, which affirmed an order of the court at a Trial Term setting aside a verdict in favor of plaintiff and granting a new trial in an action to recover for personal injuries alleged to have been sustained through the negligence of the defendant. The motion was made upon the ground of failure to file the required undertaking. James B. Henney, of New York City, for the motion. PER CURIAM. Motion granted, and appeal dismissed, with costs, and $10 costs of motion. the GLOVER, Appellant, v. NATIONAL BANK OF COMMERCE IN NEW YORK, Respondent. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (168 App. Div. 903, 152 N. Y. Supp. 1113), entered April 16, 1915, affirming a judgment in favor of defendant entered upon an order of Special Term granting a motion by defendant for judgment in its favor upon the pleadings in an action to recover dividends on certain shares of stock owned by the intestate. Defendant, among other defenses and avoidances, set up a prior judgment as a bar to this action. Plaintiff was required to reply to the various defenses. Defendant thereupon moved for this action was barred by the judgment rendered in a previous action, which motion was granted. George A. Honnecker, of New York City, for appellant John Quinn, of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. GIDEON et al., Appellants, v. HINDS, NO-judgment on the pleadings, upon the ground that BLE & ELDREDGE et al., Respondents. (Court of Appeals of New York. Oct. 10, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (172 App. Div. 478, 158 N. Y. Supp. 774), entered May 13, 1916, affirming a judgment in favor of defendants entered upon an order of Special Term denying plaintiffs' motion for judgment on pleadings, sustaining a demurrer to and directing a dismissal of the complaint. The motion was made upon the ground that no appeal lay to the Court of Appeals from the judgment of the Appellate Division. Roger Hinds, of New York City, for the motion. Frederick T. Kelsey, of New York City, opposed. PER CURIAM. Motion denied, with $10 costs. HISCOCK, CHASE, COLLIN, HOGAN. GURSKY, Respondent, v. BLAIR et al., Appellants. (Court of Appeals of New York. Oct. 10, 1916.) PER CURIAM. Motion for reargument denied, with $10 costs. See 218 N. Y. 41, 112 N. E. 431. GILLIGAN, Respondent, v. DE CANT, Appellant. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment of the ApIn re HARRIS. (Court of Appeals of New pellate Division of the Supreme Court in the York. Dec. 5, 1916.) Appeal from an order Fourth Judicial Department (169 App. Div. 909, of the Appellate Division of the Supreme Court 153 N. Y. Supp. 1116), entered May 13, 1915, in the First Judicial Department (159 N. Y. affirming a judgment in favor of plaintiff enter- Supp. 1117), entered June 30, 1916, which afed upon a verdict in an action brought by the firmed a decree of the New York County Surtrustee in bankruptcy of C. A. White & Co., rogate's Court settling the accounts of Edward a corporation, to recover $1,000, the alleged pur- D. Harris as trustee under the will of Henry chase price of 10 shares of stock subscribed for Hilton, deceased. The appellants are two of by the defendant in the certificate of incorpora- the beneficiaries of the trust and claim that tion, claiming that the same was unpaid. The the trustees during a period of three years did answer alleged, among other defenses, that the not in their discretion see fit to pay out all the stock was paid in full. Thomas Burns, John income received by them; therefore, the unexConboy, and Edward W. Carroll, all of Water-pended income of that period belonged to them town, for appellant. Mervyn Mackenzie, of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and POUND, JJ., concur. WIL LARD BARTLETT, C. J., absent. GLOCKNER et al., Respondents, v. GREAT EASTERN CASUALTY CO., Appellant. (Court of Appeals of New York. Nov. 28, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (159 N. Y. Supp. 1115), entered July 8, 1916, modifying and affirming as modified a judgment in favor of plaintiffs entered upon a verdict in an action to recover upon a policy of fire insurance. The motion was made upon the grounds that no question of law was involved and that the appeal was taken solely for purposes of delay. Charles S. Rosenschein and Otto A. Samuels, both of pro rata as two of the persons at that time presumptively entitled to the next eventual estate; the fact that the said sum of unexpended income was later wholly applied by the trustees for the purpose of the trust is, they say, wholly immaterial. Clifton P. Williamson, of New York City, for appellant Hilton. Lyle Evans Mahan, Paul M. Herzog, and Arthur S. Levy, all of New York City, for appellant Forde. James S. Darcy, of New York City, for respondent trusJames H. Hickey, of New York City, for respondent Hilton. tee. PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. HATCH, Appellant, v. LAKE SHORE & M. S. RY. CO., Respondent. (Court of Appeals of New York. Dec. 15, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (167 App. Div. 958, 152 N. Y. Supp. 1116), en MEMORANDUM DECISIONS tered April 15, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the defendant. Plaintiff's intestate was killed at the Lion street crossing of the defendant's railway tracks in the city of Dunkirk, having been struck while attempting to pass over the crossing on foot by the defendant's train, the Twentieth Century Limited. The trial court held that the plaintiff's intestate was guilty of contributory negligence as matter of law. Nelson J. Palmer, of Dunkirk, for appellant. Thomas D. Powell, of Buffalo, for respondent. PER CURIAM. costs. Judgment affirmed, with WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, and HOGAN, JJ., concur. CARDOZO, J., not voting. POUND, J., not sitting. HERENDEEN, Appellant, v. WILSON et al., Respondents. (Court of Appeals of New York, Dec. 28, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (161 App. Div. 1914, modifying and affirming as modified a 910, 145 N. Y. Supp. 1126), entered May 15, judgment in favor of defendants, entered upon an order of Special Term sustaining a demurrer and directing a dismissal of the complaint on the merits. The action is based upon a bond, signed and sealed by all of the defendants, the defendant Benton H. Wilson, as principal, the others as sureties, and the condition of the same is as follows: "Now, therefore, the condition of this obligation is such that if the said Benton H. Wilson shall well and truly indemnify and save harmless the said Susan Bradnack from any and all liability, as the holder and owner of such shares of stock, to be purchased by her, and shall, within 60 days after demand, purchase from the said Susan Bradnack at the par value thereof, all of such shares of stock, and pay to the said Susan Bradnack the par value of such said shares in cash, then this obligation shall be void, otherwise it shall remain in full force and virtue." administrator, is that the contract sued upon is The claim of the plaintiff, an original agreement for the joint and several obligation to pay by all of the signatory parties to the contract, which inures to the benefit of the representatives successively of Susan Bradnack and Charles W. Edgerton. The defendants claim that the contract in suit is a special guaranty, which was made only for the benefit of Susan Bradnack and that the right to enforce the same died with her. Eugene L. Dominick, of Buffalo, for appellant. M. F. Dirnberger, Jr., and George A. Orr, both of Buffalo, for respondents. PER CURIAM. costs. Judgment affirmed, with HISCOCK, CHASE, COLLIN, In re HERNANDEZ. (Court of Appeals of New York. Oct. 24, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (172 App. Div. 467, 159 N. Y. Supp. 59), entered May 5, 1916, which affirmed a decree of the New York County Surrogate's Court dismissing an appeal from a prior decree assessing a transfer tax upon the estate of Tirso M. y Hernandez. deceased. The surrogate fixed the tax upon the theory that the deceased was a nonresident. The comptroller claims that the deceased was a 1069 resident and that the tax should have been assessed accordingly, and that there was improperly deducted from the personal property of the deceased within this state one-half of the total sum upon the theory that this one-half belonged to the widow of the deceased under the Spanish law as her gananciales or joint gains of the marriage; that as the deceased was a naturalized American citizen and a resident of New York, the rights of his widow are fixed by the law of the forum and not by the Spanish law. ander Otis, Schuyler C. Carlton, and Lafayette B. Gleason, all of New York City, for appellant. George W. Phillips, Jr., and Charles Stewart Davison, both of New York City, for respond ents. Alex PER CURIAM. Order affirmed, with costs. GAN, CARDOZO, and POUND, JJ., concur. HISCOCK, CHASE, CUDDEBACK, HOWILLARD BARTLETT, C. J., absent. In re HERRMANN. (Court of Appeals of der of the Appellate Division of the Supreme New York. Oct. 24, 1916.) Appeal from an orCourt in the First Judicial Department (172 APP. Div. 907, 157 N. Y. Supp. 1128), entered January 28, 1916, which affirmed a decree of will of Magdalena Herrmann, deceased, upon the the New York County Surrogate's Court denying ground that fraud or undue influence was exerprobate to a writing propounded as the last cised upon the testatrix. George Gordon Battle and Gustav Goodmann, both of New York City, Osborne, and John B. Quintin, all of New for appellants. Gilbert D. Lamb, James W. York City, for respondents. GAN, CARDOZO, and POUND, JJ., concur. & H. R. R. CO., Respondent. (Court of Appeals of New York. HICKEY, Appellant, v. NEW YORK CENT. from a judgment, entered July, 23, 1914, upon an order of the Appellate Division of the SuOct. 31, 1916.) Appeal ment (163 App. Div. 270, 148 N. Y. Supp. preme Court in the Fourth Judicial_Depart795), reversing a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint in an action to recover for the death of plaintiff's intestate, alleged to have been occasioned through the negligence of the defendant, his employer. killed in a head-on collision between two trains, on one of which he was employed as fireman. The intestate was The Appellate Division reversed the judgment for the plaintiff on the ground that the collision was caused either by a lack of care and attention or error of judgment upon the part of the engineer of one of the trains for which the defendant was not liable, the accident occurring prior lant. Halsey Sayles, of Elmira, and John B. to the passage of chapter 657 of the Laws of 1906. James O. Sebring, of Corning, for appelStanchfield, of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. COCK, CHASE, CUDDEBACK, CARDOZO, & H. R. CO., Respondent. (Court of Appeals N. Y. Supp. 185), entered January 28, 1916, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the defendant, his employer. The motion was made upon the ground that the Court of Appeals had no jurisdiction_to_entertain the appeal. J. W. Carpenter, of Brooklyn, for the motion. L. F. Fish, of New York City, opposed. PER CURIAM. Motion denied, with $10 costs. In re JEFFRIES. (Court of Appeals of New York. Oct. 24, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (172 App. Div. 951, 157 N. Y. Supp. 1129), entered January 3, 1916, which affirmed an order of Special Term denying a petition for a summary order requiring the attorney to deliver to the petitioner certain promissory notes and interest collected thereon. The attorney claimed that the notes were indorsed to him and delivered in payment for legal services rendered. In denying the motion the court stated in the order: "This is not a case in which a peremptory or der may be made. The rights of the parties should be litigated in the ordinary way." Mervyn Mackenzie, of New York City, for appellant. Vance Hewitt and Enos S. Booth, both of New York City, for respondent. PER CURIAM. Order affirmed, with costs. HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO. and POUND, JJ., concur. WILLARD BARTLETT, C. J., absent. KELLOGG, Appellant, v. KELLOGG, Respondent. (Court of Appeals of New York. Oct. 10, 1916.) Motion to dismiss an appeal from a judgment, entered February 24, 1916, upon an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (169 App. Div. 395, 155 N. Y. Supp. 310), reversing a judgment in favor of plaintiff entered upon the report of a referee and directing a dismissal of the complaint. The motion was made upon the grounds that all questions of fact have been finally determined by the Appellate Division and that no questions were involved which the Court of Appeals had jurisdiction to review. John D. Teller, of Auburn, for the motion. Charles W. Andrews, of Syracuse, opposed. PER CURIAM. Motion denied, with $10 costs. KELLY, Respondent, v. PENNSYLVANIA TUNNEL & TERMINAL R. CO., Appellant, et al. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from so much of a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (167 App. Div. 898, 151 N. Y. Supp. 1124), entered March 17, 1915, as affirmed a judgment in favor of plaintiff and against the defendant, appellant, entered upon a verdict. The action is to recover damages for the death of the plaintiff's intestate, a workman in the employment of the Union Switch & Signal Company, which was engaged in installing signals and switches along the line of the defendant, appellant, railroad, who, on his way home from his work and riding at the invitation of a fellow workman upon a track velocipede, operated on the tracks of said defendant, appellant, was run into and killed by one of its locomotives. Frank Verner Johnson and Amos H. Stephens, both of New York City, for appellant. Edgar McLoughlin, all of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and POUND, JJ., concur. WILLARD BARTLETT, C. J., absent. In re KINGS COUNTY TRUST CO. (Court of Appeals of New York. Oct. 31, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (169 App. Div. 966, 153 N. Y. Supp. 1122), entered May 15, 1916, which modified a decree of the Kings County Surrogate's Court settling the accounts of the executor and trustee under the will of Mary E. Lewis, by reducing an allowance to said executor and trustee of an amount agreed to be paid by it for counsel fees. George V. Brower, of Brooklyn, and William P. Maloney, of New York City, for appellant. Otto Horwitz, Joseph H. Choate, Jr., and Thomas T. Sherman, all of New York City, for respondents. PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ., concur. LANE. Respondent, v. LION BREWERY OF NEW YORK CITY, Appellant. (Court of Appeals of New York. Dec. 15, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (169 App. Div. 924, 153 N. Y. Supp. 1123), entered July 12, 1915, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the defendThe intestate was run over by one of defendant's automobile trucks while attempting to cross Thirty-Sixth street in the city of New Grant C. Fox, of New York City, for appelYork and died from the injuries received. lant. Cornelius J. Earley, Peter J. Brancto, and Daniel J. Early, all of New York City, for respondent. ant. PER CURIAM. Judgment affirmed, with costs. COLLIN, CUDDEBACK, HOGAN, CARDOWILLARD BARTLETT, C. J., and CHASE, ZO, and POUND, JJ., concur. LASHER, Appellant, v. MCDERMOTT, Re spondent. (Court of Appeals of New York. Oct. 10, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (173 App. Div. 79, 158 N. Y. Supp. 708), entered May 4, 1916, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for services alleged to have been rendered defendant's testatrix. The motion was made upon the grounds that the appeal was not taken within the prescribed time, and that neither the required undertaking nor the return on appeal had been filed. Pierre E. Du Bois, of Albany, for the motion. PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motion. LENTILHON v. D'ARSCHOT et al. (Court of Appeals of New York. Nov. 21. 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Ju MEMORANDUM DECISIONS Y. Supp. 1093), entered January 7, 1915, affirming a judgment in favor of defendant, re spondent, entered upon a verdict directed by the court in an action brought under section 2653a of the Code of Civil Procedure to revoke probate of the will of Gaston d'Arschot, deceased, upon the grounds of alleged lack of testamentary capacity, fraud, and undue influence. L. Laflin Kellogg, Alfred C. Petté, Charles K. Carpenter, George P. Ingersoll, and Theodore F. Humphrey, all of New York City, for appellants. Robert Thorne, of New York City, for respondent. 1071 defendant. The intestate while in the employ of defendant fell from a signal tower and received injuries resulting in his death. The complaint alleged that defendant was negligent in failing to provide decedent with a reasonably safe place in which to work, viz., a reasonably safe signal tower for the performance of the duties required of him in and about said tower. The answer denied negligence and alleged as a first affirmative defense that whatever damage or loss was received by the plaintiff was a result of the contributory negligence of plainpart of the defendant; and for a second detiff's intestate and not of any negligence on the WILLARD BARTLETT, C. J., and HIS-plete charge of the signal tower and, therefore, fense that plaintiff's intestate was at the times COCK, COLLIN, CUDDEBACK, HOGAN, assumed the risk of his employment and that and place mentioned in the complaint in comCARDOZO, and POUND, JJ., concur. whatever damages were sustained resulted from the risks of the occupation or from the negliof Ithaca, for appellant. gence of plaintiff's intestate. van, of Elmira, for respondent. Howard Cobb, Mortimer L. Sulli PER CURIAM. costs. Judgment affirmed, with LOVAS et al. Respondents, v. INTERNATIONAL RY. CO., Appellant. (Court of Appeals of New York. to dismiss an appeal from a judgment of the Oct. 10, 1916.) Motion Appellate Division of the Supreme Court in the Fourth Judicial Department (159 N. Y. Supp. 1125), entered June 1, 1916, affirming a judgment in favor of plaintiffs entered upon a verdict in an action to recover for the death of plaintiffs' intestate alleged to have been occasioned through the negligence of the defendant. The motion was made upon the ground that the exceptions were frivolous and the appeal taken solely for purpose of delay. Joseph A. Wechter, of Buffalo, for the motion. Raymond C. Vaughan, of Buffalo, opposed. PER CURIAM. costs. Motion denied, without In re McDONALD et al., Appellants. (Court of Appeals of New York. Oct. 17. 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (159 N. Y. Supp. 1126), entered May 26. 1916, which affirmed a decree of the Kings County Surrogate's Court made on an application under section 2615 of the Court of Civil Procedure, on behalf of certain of the heirs at law and devisees under the last wills and testaments of Thomas McDonald and Mary F. Clyne, deceased, for a construction of the wills of said deceased in so far as they relate to certain real property described in the petition, and for injunctive relief as against the respondent Edmond F. Clyne, restraining him from assert; ing a claim to an estate for life in said real property. As to the latter will the sole question in controversy was as to its containing a valid exercise of the power of appointment contained in the former. The decree appealed from construed the will of said Thomas McDonald adversely to the interests of the petitioners. William P. Pickett, of Brooklyn, for appellants. Lewis C. Grover and Theodore Burgmyer, both of Brooklyn, for respondent. PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT. C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. MCGOVERN, Respondent, v. LEHIGH VALLEY R. CO., Appellant. of New York. Dec. 28. 1916.) Appeal from a (Court of Appeals judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (164 App. Div. 906, 148 N. Y. Supp. 1128), entered July 14, 1914. affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the PER CURIAM. costs. Judgment affirmed, with LIN, CUDDEBACK, HOGAN. CARDOZO, CHASE et al., Appellants. (Court of Appeals of New York. MCNEIL LUMBER CO., Inc., respondent, v. 1916.) judgments of the Appellate Division of the Su(Actions 1 & 2.) Motion to dismiss appeals from two Nov. 28, (159 N. Y. Supp. 1126), entered July 12, 1916, preme Court in the Fourth Judicial Department affirming judgments in favor of plaintiff entered upon decisions of the court on trial at Spegages. The motion was made upon the grounds cial Term in actions to foreclose two mortthat the Appellate Division had unanimously decided that the facts were sufficient to sustain the judgments, that the exceptions were frivolous, and presented no question for review. Thomas C. Burke, of Buffalo, for the motion. Clark H. Timerman, of Buffalo, opposed. peals dismissed, with costs and $10 costs of motion. PER CURIAM. Motion granted, and ap SUP'RS OF RENSSELAER COUNTY, Ap- PER CURIAM. Order affirmed, with costs. resident of the state of New York, and that his estate is not subject to taxation under the Transfer Tax Law of the state of New York. The following question was certified: "Is the intangible property belonging to the estate of the decedent subject to taxation under the Transfer Tax Law upon a proper interpretation of the word 'resident' as employed in that statute?" John B. Pine, of New York City, for appellant. John B. Gleason, of New York City, for respondent. PER CURIAM. Appeal dismissed, with costs, on the ground that the question certified involves the determination of a question of fact. 217 N. Y. 601, 111 N. E. 211. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. In re MELICK. (Court of Appeals of New York. Oct. 17, 1916.) Appeal from an order of the Appellate Divison of the Supreme Court in the First Judicial Department (172 App. Div. 538, 158 N. Y. Supp. 689), entered May 11, 1916, which modified, and affirmed as modified, a decree of the New York County Surrogate's Court settling the accounts of Harry C. W Melick as administrator of the estate of Jacob J. Brush, deceased. The question before the court was as to the legality of a retainer whereby the attorney for the administrator was to receive one-third of the amount received from said estate as compensation for his services, together with costs and disbursements. James H. Hickey, of New York City, for appellant. James E. Kelly, of New York City, for respondent. PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT. C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. MEYER, Respondent, v. MORRIS & CO. et al., Appellants. (Court of Appeals of New York. Dec. 12, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (159 N. Y. Supp. 1129), entered May 2, 1916, which affirmed an award of the State Industrial Commission, under the Workmen's Compensation Act, to the widow of Christopher O. Meyer, who was employed as a cutter and meat lugger by the defendant Morris & Co., a corporation engaged in the business of meat packing. At the time of the injury, deceased was assisting in unloading beef from a car which was on a float adjoining a station; his foot slipped and he fell over backwards, striking on his head on the edge of the float and fell into the water. By reason of this injury he died. John N. Carlisle, of Albany, and Alfred W. Andrews, of New York City, for appellants. Egburt E. Woodbury, Atty. Gen. (E. C. Aiken. Deputy Atty. Gen., of counsel), for respondent. PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDO ZO, and POUND, JJ., concur. Dec. 28, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (168 App. Div. 905, 152 N. Y. Supp. 1128), entered April 16, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action upon a promissory note alleged to have been executed by defendant Stallo in his own name and also as attorney in fact for Alexander McDonald, since deceased. The defenses were failure of consideration and lack of power on the part of Stallo to sign the note for McDonald. Nash Rockwood, of Saratoga Springs, for appellants. Edwin M. Otterbourg, Charles A. Houston, and Edward B. Levy, all of New York City, for respondent. PER CURIAM. Judgment affirmed, with costs. WILLARD BARTLETT. C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. In re MILLER. (Court of Appeals of New York. Oct. 24, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (171 App. Div. 229, 157 N. Y. Supp. 360), entered February 11, 1916, which affirmed a decree of the New York County Surrogate's Court denying the application of petitioner for payment to him of the income of a certain trust fund created by the will and codicil of Sarah Akin, deceased, by which she bequeathed to her trustees $25,000, directing that they collect the income thereof, and "in their discretion, and from time to time, to pay the whole of the net income arising therefrom either to my nephew, Oscar Clark Miller, or to his wife, Julia Miller, or a portion of such income to one, and the remaining portion to the other, during the term of the life of said Oscar Clark Miller." The wife, the trustees determined to pay the whole petitioner having obtained a divorce from bis of the income arising from the trust fund to her. The petitioner thereupon brought this proceeding under section 2689 of the Code of Civil Procedure. Samuel Dickstein, of New York City, for appellant. Paul E. Whitten, of New York City, for respondent trustees. Mark M. Schlesinger, of New York City, for respondent Miller. PER CURIAM. Order affirmed with costs. HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. WILLARD BARTLETT, C. J., absent. MILLINERY OUTLET CO.. Inc., Appellant, v. WISE & CO., OUTFITTERS, Inc., Respondent. (Court of Appeals of New York. Oct. 17, 1916.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (157 N. Y. Supp. 1136), entered March 28, 1916, affirming a judgment in favor of defendant. The motion was made upon the ground of failure to file the required undertaking. Hamilton C. Rickaby, of New York City, for the motion. PER CURIAM. Motion granted, and appeal dismissed, with costs and $10 costs of motión. In re MILLS' ESTATE. (Court of Appeals of New York. Dec. 12, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (172 App. Div. 530, 158 N. Y. Supp. 1100), entered June 6. 1916, which modified, and affirm MILES, Respondent, v. STALLO et al., Ap-ed as modified, an order of the New York |