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dered his compulsory retirement on half pay, by reason of his original injuries. The question is as to whether the defendant's action was justified by section 790 of the charter of the city of New York. Lamar Hardy, Corp. Counsel, of New York City (Terence Farley and Elliot S. Benedict, both of New York City, of counsel), for appellant. Robert H. Wilson, of Brooklyn, for respondent.

PER CURIAM. Order affirmed, with costs.

CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. HISCOCK, J., not voting. WILLARD BARTLETT, C. J., absent.

PEOPLE ex rel. CENTRAL HUDSON GAS & ELECTRIC CO., Appellant, V. STATE BOARD OF TAX COM'RS, Respondent. (Court of Appeals of New York. Oct. 24, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (171 App. Div. 300, 157 N. Y. Supp. 29), entered March 3, 1916, which reversed an order of Special Term denying a motion to quash a writ of certiorari to review a special franchise assessment against the relator and granted said motion. The motion was based solely on the fact that the writ was issued more than 20 days after the statutory time to apply therefor had elapsed and for that reason the court was without jurisdiction to entertain the application. Harry C. Barker and Frank B. Lown, both of Poughkeepsie, for appellant. Egburt E. Woodbury, Atty. Gen. (James T. Cross, of Rome, of counsel), for respondent.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

PEOPLE ex rel. GOLDSCHMIDT, Appellant, v. TRAVIS, Respondent. (Court of Appeals of New York. Oct. 31, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (167 App. Div. 475, 152 N. Y. Supp. 1058), entered May 15, 1915, which affirmed an order of Special Term denying a motion for a writ of mandamus to compel the defendant to reinstate the relator in the position of examiner of municipal accounts from which he claimed to have been removed for political reasons, contrary to the Civil Service Law. Clarence U. Carruth and Charles R. Carruth, both of New York City, and William W. Gerber, of Syracuse, for appellant. Egburt E. Woodbury, Atty. Gen. (Edward G. Griffin, Deputy Atty. Gen., of counsel), for respondent.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT. C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK HOGAN, and CARDOZO, JJ., concur.

a salary for such services pursuant to section 107a of the Town Law was adopted and is in full force." The question presented by this appeal is, "Is chapter 11 of the Laws of 1915 which added section 107a to the Town Law constitutional?" Charles T. McCarthy, of Glen Cove, for appellant. Percy L. Housel, of Riverhead, for respondents.

PER CURIAM. Appeal dismissed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

PEOPLE ex rel. NEW YORK CENT. R. MISSION OF STATE OF NEW YORK, SECCO., Appellant, v. PUBLIC SERVICE COMpeals of New York. Oct. 24, 1916.) Appeal from OND DISTRICT, Respondent. (Court of Apan order of the Appellate Division of the Supreme Court in the Third Judicial Department (173 App. Div. 407, 159 N. Y. Supp. 997), entered August 14, 1916, which confirmed, on certiorari, a determination of the defendant directing the relator to construct, maintain and operate a certain side track and coalpit on its right of way. Daniel M. Beach, of Rochester, for appellant. Ledyard P. Hale, of Albany, for re

spondent.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ., concur.

PEOPLE ex rel. NEW YORK STATE RYS. Appellant, v. PUBLIC SERVICE COMMISSION OF STATE OF NEW YORK, SECOND DISTRICT, Respondent. (Court of Appeals of New York. Oct. 24, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (167 App. Div. 279, 153 N. Y. Supp. 18), entered January 28, 1916, which dismissed a writ of certiorari and confirmed a determination of the defendant public service commission requiring the relator to cease and desist from collecting from passengers on its street car lines in the city of Utica more than five cents for one continuous ride in either direction between any point on its Blandina street line and any point on its South street line in said city, and holding that the relator in refusing to transport passengers for one five-cent fare between points on its Blandina street line and points on its South street line is and has been violating section 181 of the Railroad Law and certain provisions of the Public Service Commissions Law. Daniel E. Meegan, of Utica, for appellant. Ledyard P. Hale, of Albany, for respondent.

PER CURIAM. Order affirmed, with costs. HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. WILLARD BARLETT, C. J., absent.

PEOPLE ex rel. LUYSTER, Appellant,_v. PEOPLE ex rel. NEW YORK, W. & B. RY. COCKS et al., Town Board of Oyster Bay, Re-CO., Respondent, v. EBSTEIN, Appellant. spondents. (Court of Appeals of New York. (Court of Appeals of New York. Oct 24, 1916.) Dec. 5, 1916.) Appeal from an order of the Appeal from an order of the Appellate Division Appellate Division of the Supreme Court in the of the Supreme Court in the First Judicial DeSecond Judicial Department (172 App. Div. 737, partment (172 App. Div. 957, 157 N. Y. Supp. 158 N. Y. Supp. 1024), entered May 12, 1916, 1141), entered February 28, 1916, which affirmwhich confirmed, on certiorari, a determination ed an order of Special Term granting a motion of the board of audit of the town of Oyster for a peremptory writ of mandamus to compel Bay. Between January 3, 1916, and January the defendant to credit the relator with a cer14, 1916, appellant, as a justice of the peace of tain sum against its assessment for special franthe town of Oyster Bay, rendered certain serv- chises. The question presented is the proper ices in criminal matters. He presented his bill construction, since the amendment of section for such services to the town board for audit 914 of the New York charter (Laws 1897, c. and the town board disallowed the bill in its 378) by chapter 455, Laws of 1911, of the proentirety on the ground that "a resolution fixing visions of section 48 of the Tax Law (Consol.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and CARDOZO, JJ., concur.

PEOPLE ex rel. PUBLICITY LEASING CO., Respondent, v. LUDWIG, Superintendent of Buildings of Borough of Manhattan, et al., Appellants. (Court of Appeals of New York. Oct. 24, 1916.) Motion to amend remittitur. See 218 N. Y. 540, 113 N. E. 532. See, also, 114 N. E. 1079.

PER CURIAM. Motion granted to the extent of inserting therein the following recital: "Upon the argument of this case in the Court of Appeals the counsel for the appellant Mecca Realty Company presented and argued the following point: The ordinance is in conflict with sections 1 and 6 of article 1 of the Constitution of the state of New York and with the Fourteenth Amendment of the federal Constitution." "

Laws, c. 60), authorizing the credit of payments, in the nature of a tax, against the tax on special franchises. The relator's 1912 taxes are here the subject of dispute. On May 1, 1912, half of these taxes, and half only, became due and payable. This half amounted to $3,288.51. The chamberlain's certificate appears to have been issued on April 27th. In the six months preceding the last-mentioned date the relator had concededly paid $4,000. This extinguished the May installment and left $711.49 to relator's credit. The November installment of taxes was $3,288.51. Between April 27th and October 27th (the dates of the chamberlain's certificates) the relator had further paid $4,000, which, added to the credit of $711.49 carried forward from May, gave $4,711.49 to its credit, or more than sufficient to extinguish the second installment of 1912 taxes. Lamar Hardy, Corp. Counsel, of New York City (William H. King and Addison POWERS, Appellant, V. DAHL, County B. Scoville, both of New York City, of counsel), | Clerk, Respondent. (Court of Appeals of New for appellant. Ralph Polk Buell, of New York York. Oct. 24, 1916.) Appeal from an order City, for respondent. of the Appellate Division of the Supreme Court in the Third Judicial Department (173 App. Div. 501, 159 N. Y. Supp. 1063), entered July 10, 1916, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the reinstatement of the petitioner as custodian of records in the Rensselaer county clerk's office, on the ground that he PEOPLE ex rel. PEABODY, Respondent, v. was illegally removed therefrom without a hearWOODS, Police Com'r, Appellant. (Court of ing upon due notice upon stated charges, contraAppeals of New York. Dec. 12, 1916.) Appeal ry to section 22 of the Civil Service Law (Confrom an order of the Appellate Division of the sol. Laws, c. 7), the applicant being an honSupreme Court in the Second Judicial Depart-orably discharged soldier, having served in the ment (171 App. Div. 684, 157 N. Y. Supp. 606), army of the United States during the war with entered February 28, 1916, which reversed a de Spain. The defense is that the position was a termination of the defendant dismissing the re- personal and confidential one, and that the aplator from the police force of the city of New plicant's tenure ended by operation of law. York upon charges of "neglect of duty, conduct Michael D. Nolan and Edward L. Nugent, both unbecoming an officer and violation of rules,' of Troy, for appellant. Herbert F. Roy, of the specifications being: "First. That at 3:55 Troy, for respondent. p. m., October 3, 1914, relator entered himself as being on duty in the police blotter in a space left for that purpose, preceding an entry made by the police commissioner in such blotter at 3:50 p. m. of the same day, in violation of paragraph 486 of the rules and regulations of the police department. Second. That relator failed and neglected to enforce compliance with the rules and regulations on the part of Lieutenant Adams, in that he failed and neglected to take any action towards preferring charges against the said Adams, who had failed and neglected to make entries in the blotter accurately and concisely in chronological order as required by said paragraph 486 of the rules and regulations, although Adams had subsequently informed the said Captain Peabody of that fact; this is charged to be in violation of paragraph 14 of the rules and regulations of the police department." The third specification charges the commission of "a disorder to the prejudice of good order, efficiency and discipline.' Lamar Hardy, Corp. Counsel, of New York City (Frank Julian Price and Thomas F. Magner, both of Brooklyn, of counsel), for appellant. Moses H. Grossman, of New York City, for respondent.

PER CURIAM. Order affirmed, with costs, on the ground that no question of law is presented for review.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, HOGAN, CARDOZO, and POUND, JJ., concur. CUDDEBACK, J., not voting.

PEOPLE ex rel. PUBLICITY LEASING CO., Respondent, v. LUDWIG, Superintendent of Buildings of Borough of Manhattan, et al., Appellants. (Court of Appeals of New York. Oct. 10, 1916.)

PER CURIAM. Motions for reargument denied, with $10 costs of one motion. See 218 N. Y. 540, 113 N. E. 532.

PER CURIAM. Order reversed, with costs in all courts, on the dissenting opinion of Cochrane, J., below, and peremptory writ of mandamus granted.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, HOGAN, and CARDOZO, JJ., concur. HISCOCK and CUDDEBACK, JJ., dissent, on opinion of WOODWARD, J., below.

PEOPLE ex rel. QUEENS COUNTY WATER CO., Appellant, v. TRAVIS, State Comptroller, Respondent. (Court of Appeals of New York. Oct. 24, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (171 App. Div. 521, 157 N. Y. Supp. 943), entered March 15, 1916, which confirmed a determination of the state comptroller refusing to revise and readjust a franchise tax imposed upon the relator for the year ending October 31, 1911. The question raised by the application for revision was whether or not, in addition to the tax imposed on the water company based upon its gross earnings from all sources during the year in question, there could lawfully be imposed an additional "tax on excess dividend" based upon the par value of the capital stock of a new corporation, the Norumbega Company, to which certain land, no longer needful for the purposes ed during the same year, all of which capital of the water company as such, had been conveystock was distributed ratably among the stockholders of the water company. Howard Mansfield, of New York City, and Michael D. Reilly, of Albany, for appellant. Egburt E. Woodbury, Atty. Gen. (Sanford W. Smith and Franklin Kennedy, Deputy Attys. Gen., of counsel), for respondent.

PER CURIAM. Order affirmed, with costs. HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur. WILLARD BARTLETT, C. J., absent.

tended that he was a veteran of the Civil War and was removed without charges or a hearing, while the respondent retained in the city service two painters who were nonveterans and who were in the same civil service classification, to wit, "labor class." Parton Swift, of Buffalo, for appellant. William S. Rann, Corp. Counsel, of Buffalo (Frederic C. Rupp, of Buffalo, 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.

PEOPLE ex rel. RIDGEWOOD LAND & IMPROVEMENT CO., Respondent, v. SAXE et al., State Tax Commission, Appellants. (Court of Appeals of New York. Dec. 12, 1916.) Appeal from Supreme Court, Appellate Division, Third Department. Certiorari by the People of the State of New York, on the relation of the Ridgewood Land & Improvement Company, against Martin Saxe and others, constituting the State Tax Commission of the State of New York. From an order of the Appellate Division (174 App. Div. 344, 160 N. Y. Supp. 752), reversing a determination of the commission, refusing to revise a franchise tax against relator, the commissioners appeal. Order affirmed. The relator was incorporated for the purpose of purchasing, selling, leasing, and improving real PHILLIPS, Appellant, v. CROSSTOWN ST. estate. Having determined to liquidate, the re- RY. CO. OF BUFFALO et al., Respondents. lator disposed of its holdings. At the beginning (Court of Appeals of New York. Oct. 31, 1916.) of the year ending October 31, 1913, the only Appeal from a judgment of the Appellate Diviasset remaining to the company was an overdue sion of the Supreme Court in the Fourth Judimortgage, upon which there remained payable cial Department (167 App. Div. 953, 151 N. Y. a balance of $231,560, and against this there Supp. 1140), entered March 5, 1915, affirming was an indebtedness of approximately $32,000. a judgment in favor of defendants entered upon By October 31, 1913, the mortgage had been re- a verdict directed by the court in an action to duced to $191,900, against which there still re-recover for the death of plaintiff's intestate almained the said indebtedness of $32,000. Since leged to have been occasioned through the neg1906 the company has neither owned nor dealt ligence of the defendant. The deceased, while in real estate, nor been engaged in business of in the employ of defendant as a conductor on any sort, save to hold the mortgage aforesaid, one of its street cars, was caught between a car to collect the proceeds and to distribute the same standing on one track and a moving car on the to the stockholders as fast as collected. The opposite track passing the standing car and restate comptroller held this distribution a divi- ceived the injuries resulting in his death. The dend and assessed a franchise tax. Egburt E. trial court held the deceased guilty of contribuWoodbury, Atty. Gen. (James T. Cross, of tory negligence. George H. Kennedy, of BufRome, of counsel), for appellants. Theodore L falo, for appellant. James O. Moore, of BufFrothingham, of New York City, for respondent. falo, for respondents. PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, and CARDOZO, JJ., concur. HOGAN and POUND, JJ., dissent.

PEOPLE ex rel. RUDD, Appellant, v. LEWIS, Dist. Atty., Respondent. (Court of Appeals of New York. Dec. 12, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (173 App. Div. 714, 159 N. Y. Supp. 641), entered June 16, 1916, which affirmed an order of Special Term denying a motion for a peremptory writ of mandamus to compel the defendant to reinstate the relator in the position of clerk in the office of the district attorney of Kings county and dismissing an alternative writ theretofore granted. The relator was removed on charges after a hearing. He contended that the charges were frivolous and unsubstantial and that the removal was for political reasons. Otho S. Bowling and Robert H. Elder, both of New York City, for appellant. Harry E. Lewis, Dist. Atty., of Brooklyn (Hersey Egginton, of Brooklyn, of counsel), for respondent.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE. COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

PEOPLE ex rel. SPIRE, Appellant, v. KREINHEDER, Superintendent of Department of Public Works, Respondent. (Court of Appeals of New York. Dec. 12, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (160 N. Y. Supp. 1142), entered September 26, 1916, which reversed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to reinstate the relator in the position of painter in the bureau of water in the department of public

PER CURIAM. Judgment affirmed with costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK, and CARDOZO, JJ., concur. POUND, J., not sitting.

PURCELL, Appellant, v. BURROUGHS et al., Respondents. (Court of Appeals of New York. Dec. 12, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (167 App. Div. 951, 151 N. Y. Supp. 1141), entered March 6, 1915, affirming a judgment in favor of defendants entered upon a verdict directed by the court in an action under section 2653a of the Code of Civil Procedure to contest the validity of the will of Catherine A. Purcell, deceased. The complaint in this action alleges the following as the grounds for setting aside the will: "That said alleged will of Catherine A. Purcell was not executed by her in conformity with the requirements of the law. That at the time of the alleged signing and execution thereof the said Catherine A. Purcell was of unsound mind and incapable of making valid testamentary disposition of her property. That the execution thereof, if the same was ever executed by the said Catherine A. Purcell, was secured by the fraud and undue influence of William Purcell, deceased, her late husband, whereby the intent and purpose of the said Catherine A. Purcell in making a testamentary disposition of her property was overcome and destroyed, and the desire, will and purpose of the said William Purcell, deceased, was substituted therefor." William H. Tompkins, of Rochester, for appellant. Fred A. Robbins, of Rochester, for respondents.

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WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDO

PER CURIAM. Judgment affirmed, with In re QUINBY'S ESTATE. (Court of Ap-costs. peals of New York. Dec. 12, 1916.) Appeal WILLARD BARTLETT, C. J., and HISfrom an order of the Appellate Division of the COCK, COLLIN, CUDDEBACK, HOGAN, Supreme Court in the Second Judicial Depart- CARDOZO, and POUND, JJ., concur. ment (159 N. Y. Supp. 1138), entered June 16, 1916, which affirmed an order of the Westchester County Surrogate's Court dismissing an appeal from a prior order assessing a transfer tax upon the estate of Susan E. Quinby, deceased. The question at issue between the parties on this appeal is the allowance or rejection of the claim of the executor that the net estate be re duced by the amount of the executor's personal claim against the estate of decedent for moneys paid by him individually for the principal and interest of mortgages held by Daniel Quinby upon the real property of decedent, with interest to the date of the last appraisal, and also deductions for advances made by claimant for the improvement of decedent's real property. Charles Haines and W. M. Du Bois, both of White Plains, for appellant. Francis A. Wins low, of New York City, for respondent.

PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDO ZO, and POUND, JJ., concur.

READ, Appellant. v. NEW YORK CENT. & H. R. R. CO., Respondent. (Court of Appeals of New York. Dec. 28, 1916.) Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (165 App. Div. 910, 150 N. Y. Supp. 1108), entered February 6, 1915, affirming a judgment in favor of defend ant 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. The deceased received the injuries resulting in his death in a collision between an automobile in which he was riding and one of defendant's trains at a highway crossing of defendant's railroad in Van Cortlandt park, New York City. Stephen C. Baldwin, of Brooklyn, and George W. Weiffenbach, and Charles E. Mahony, both of New York City, for appellant. Robert A. Kutschbock and Charles C. Paulding, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with

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RICCIARDELLI, Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Court of Appeals of New York. Nov. 21, 1916.) Appeal from a judgment, entered April 14, 1915, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (165 App. Div. 152, 150 N. Y. Supp. 593), 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. Plaintiff's intestate was killed at the Van Cortlandt Park station of the defendant by a north-bound train, as he was crossing the north-bound tracks, his intention being to board the train as a passenger. Louis Steckler and Isidor Frey, both of New York City, for appellant. Robert A. Kutschbock and Alexander S. Lyman, both of New York City, for respondent.

RICE, Respondent, v. POSTAL TELEGRAPH-CABLE CO., Appellant. (Court of Appeals of New York. Dec. 5, 1916.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (174 App. Div. 39, 160 N. Y. Supp. 172), entered June 15, 1916, which affirmed an interlocutory judgment of Special Term overruling a demurrer to the complaint which alleged that on March 20, 1913, Charles Rice, while in the employ of the defendant and city of Rochester by taking hold of a wire which as a result of its negligence, was killed in the Rochester Railway & Light Company; that the was in contact with a high voltage wire of the decedent left his father, the plaintiff in this action, as his sole next of kin; that by reason of the facts aforementioned a cause of action accrued in favor of the plaintiff through an administrator duly appointed and against the defendant to recover damages for the death of plaintiff's said son for the benefit of said Clark H. Rice as the next of kin of said decedent; that in April, 1913, the defendant negotiated claim he might have against the defendant and a settlement with the plaintiff of whatever obtained his written release; that the representations made by the defendant to secure the release were false; and that by reason of the premises the plaintiff, as such next of kin of said, Charles Rice, deceased, has been deprived of his said cause of action for damages through administrator duly appointed, for the negligent killing of said Charles Rice, deceased. The following questions were certified: "(1) Does the complaint herein state facts sufficient to defect of parties plaintiff herein? (3) Has the constitute a cause of action? (2) Is there a plaintiff herein legal capacity to sue?" Satterlee, of Rochester, for appellant. Earl F. Hugh Case, of Rochester, for respondent.

PER CURIAM. Order affirmed, with costs. First and third questions certified answered in the affirmative; second question in the negative.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

RINTELEN v. SCHAEFER et al. (Court of Appeals of New York. Nov. 28, 1916.) Appeal from a judgment of the Appellate Division_of the Supreme Court in the Second Judicial Department (168 App. Div. 958, 153 N. Y. Supp. 1140) entered June 3, 1915, affirming a judgment in favor of defendants entered upon a verdict directed by the court in an action under section 2653a of the Code of Civil Procedure to determine the validity of the will of Elizabeth Rintelen, deceased. Three issues were raised by the pleadings, viz.: Testamentary capacity; undue influence; and execution not in conformity with the statute. Gormly J. Sproull and John McG. Goodale, both of New York City, for appellant. Henry C. Frey, of Jamaica, and Gaston F. Livett, of Brooklyn, for respondents. PER CURIAM. Judgment affirmed, with costs.

CARDOZO. and POUND, JJ., concur.
HISCOCK, CHASE, COLLIN, HOGAN,
LARD BARTLETT, C. J., absent.
WIL

ROESLER, Respondent, V. DUNKIRK HOME TELEPHONE CO., Appellant. (Court of Appeals of New York. Dec. 15, 1916.) Ap

Isaac H. Levy, of New York City,

PER CURIAM. Order affirmed, with costs, and question certified answered in the affirmative.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, and POUND, JJ., concur. CARDOŽO, J., not sitting.

peal from a judgment of the Appellate Division | pellant.
of the Supreme Court in the Fourth Judicial for respondent.
Department (166 App. Div. 967, 151 N. Y.
Supp. 1142), entered January 25, 1915, affirm
ing a judgment in favor of plaintiff entered up-
on a verdict in an action to recover for per-
sonal injuries alleged to have been sustained by
plaintiff through the negligence of defendant.
Plaintiff received an electric shock by coming in
contact with a wire attached to one of defend-
ant's poles about three feet from the ground,
which wire hung across an electric light wire
heavily charged with electricity. Edward H.
Letchworth, of Buffalo, for appellant. Nelson
J. Palmer, of Dunkirk, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

In re ROSEDALE AVE. IN CITY OF NEW YORK. (Court of Appeals of New York. Nov. 28, 1916.)

PER CURIAM. Motion for reargument denied, with $10 costs. See 219 N. Y. 192, 114 N. E. 49.

RYDER et al. v. KENNEDY et al. (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 Second Judicial Department (172 App. Div. 890, 155 N. Y. Supp. 1139), entered December 9, 1915, affirming a judgment entered upon the report of a referee in an action of partition. The motion was made upon the grounds that the appellant and her attorney had accepted and received, in accordance with the final judgment, sums of money, being the amount of their interest in said action, that the appeal was frivolous, and presented solely for purpose of delay. John F. McFarland, of Brooklyn, for the motion. George H. Francoeur, of New York City, opposed.

PER CURIAM. Motion denied, with $10

costs.

SALISBURY, Respondent, v. HENION, Appellant. (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 (170 App. Div. 934, 154 N. Y. Supp. 1143), entered July 16, tiff entered upon a verdict in an action based 1915, affirming a judgment in favor of plainupon a claim presented to the executor for the purchase price under an alleged contract by decedent to purchase from plaintiff 2,500 shares of the capital stock of the Beulah Copper ComThe complaint says that the decedent, by conpany, and claiming interest from June 1, 1902. tract in writing on May 29, 1902, undertook with plaintiff that if plaintiff would buy 5,000 shares of this stock, decedent would buy from plaintiff 2,500 shares thereof and pay 70 cents per share and says that the decedent broke his contract by refusing to take and pay for such shares after plaintiff bought them and that plaintiff has ever since held the stock for decedent. George P. Decker and H. J. Menzie, both of Rochester, for appellant. John H. Agate, of Rochester, for respondent.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

SCHMEISER, Respondent, v. SCHMEISER, Appellant, et al. (Court of Appeals of New York. Dec. 28, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (156 App. Div. 914, 141 N. Y. Supp. 1145), entered June 9, 1913, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action brought to cancel a deed executed by the plaintiff to the defendant on the ground that the defendant procured the same by false and fraudulent representations that the said deed was a last will and testament. the execution of the deed and denies all other allegations. As a separate defense the answer alleges certain work, labor, and services performed by defendant for plaintiff; also that he had expended divers sums of money for taxes and improvements of the real estate mentioned, and in consideration thereof plaintiff duly executed and delivered the deed. Hermon Ackerman, of New York City, for appellant. Charles E. Gostenhofer, Montague Lessler, and Leonard J. Obermeier, all of New York City, for respondent.

The answer admits

R. & L. COMPANY, Appellant, v. METZ, Respondent. (Court of Appeals of New York. Oct. 17, 1916.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered June 28, 1916 (160 N. Y. Supp. 145), which affirmed an order of Special Term overruling a demurrer to new matter set up in defendant's amended answer. The defense interposed and demurred to sets up the statute of frauds, in that the "alleged agreement mentioned and described in the first cause of action set forth in the complaint was for the sale of goods at a price of more than fifty dollars; that neither the said agreement nor any note or memorandum thereof was ever made in writing and subscribed by this defendant, who is sought to be charged therewith, or by his lawful agent, nor did this defendant at the time of the alleged sale accept or receive any part of the said goods. nor did this defendant at the times mentioned in said alleged first cause of action pay any part of the purchase money of the goods therein described." The sole question presented on this appeal is whether the complaint alleges a sale of goods. The following question was certified: SCHOTT, Respondent, v. UNITED STATES "Is the defense contained in the amended an- PRINTING CO., Appellant. (Court of Appeals swer to the alleged cause of action set forth of New York. Nov. 21, 1916.) Appeal from a in the complaint herein sufficient in law upon judgment of the Appellate Division of the Suthe face thereof?" Henry A. Rubino and Ber- preme Court in the Second Judicial Department nard A. Shalek, both of New York City, for ap-|(169 App. Div. 963, 153 N. Y. Supp. 1144), en

PER CURIAM. Judgment affirmed, with costs.

HISCOCK, CHASE, COLLIN, CUDDEBACK, HOGAN, and POUND, JJ., concur. WILLARD BARTLETT, C. J., absent.

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