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dered his compulsory retirement on half pay, by a salary for such services pursuant to section reason of his original injuries. The question is 107a of the Town Law was adopted and is in as to whether the defendant's action was jus- full force.” The question presented by this tified by_section 790 of the charter of the city appeal is, “Is chapter 11 of the Laws of 1915 of New York. Lamar Hardy, Corp. Counsel, of which added section 107a to the Town Law conNew York City (Terence Farley and Elliot s. stitutional ?" Charles T. McCarthy, of Glen Benedict, both of New York City, of counsel), Cove, for appellant. Percy L. Housel, of Riverfor appellant. Robert H. Wilson, of Brooklyn, head, for respondents. for respondent

PER CURIAM. Appeal dismissed, with costs. PER CURIAM. Order affirmed, with costs. WILLARD BARTLETT, C. J., and CHASE,

CHASE, CUDDEBACK, HOGAN, CARDO- COLLIN, CUDDEBACK, 'HOGAN, CARDO: ZO, and POUND, JJ., concur. HISCOCK, J.,

zo, and POUND, JJ., concur. not voting. WILLARD BARTLETT, C. J., absent.

PEOPLE ex rel. NEW YORK CENT. R. PEOPLE ex rel. CENTRAL HUDSON GAS MISSION OF STATE OF NEW YORK, SEC

CO., Appellant, v. PUBLIC SERVICE COM& ELECTRIC CO., Appellant, v. STATE BOARD OF TAX COM’RS, Respondent, peals of New York. Oct. 24, 1916.) Appeal from

OND DISTRICT, Respondent. (Court of Ap(Court of Appeals of New York. Oct. 24, 1916.) an order of the Appellate Division of the SuAppeal from an order of the Appellate Division preme Court in the Third Judicial Department of the Supreme Court in the Third Judicial De-|(173 App. Div. 407, 159 N. Y. Supp. 997), enpartment (171 App. Div. 300, 157 N. Y. Supp. tered August 14, 1916, which confirmed, on cer29), entered March 3, 1916, which reversed an tiorari, a determination of the defendant directorder of Special Term denying a motion to quash ing the relator to construct, maintain and opa writ of certiorari to review a special franchise erate a certain side track and coalpit on its right assessment against the relator and granted said of way. Daniel M. Beach, of Rochester, for apmotion. fact that the writ was issued more than 20 days pellant.. Ledyard P. Hale, of Albany, for re

spondent after the statutory time to apply therefor bad elapsed and for that reason the court was with

PER CURIAM. Order affirmed, with costs. out jurisdiction to entertain_the application. WILLARD BARTLETT, C. J., and HISHarry C. Barker and Frank B. Lown, both of COCK, CHASE, COLLIN, CUDDEBACK, Poughkeepsie, for appellant. Egburt E. Wood- HOGAN, and CARDOZO, JI., concur. bury, Atty. Gen. (James T. Cross, of Rome, of counsel), for respondent.

PER CURIAM. Order affirmed, with costs. PEOPLE ex rel. NEW YORK STATE RYS. WILLARD BARTLETT, C. J., and HIS- Appellant, v. PUBLIC SERVICE COMMIS. COCK, CHASE, CUDDEBACK, HOGAN, SION OF STATE OF NEW YORK, SECOND CARDOZO, and POUND, JJ., concur.

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 PEOPLE ex rel. GOLDSCHMIDT, Appel-App. Div. 279, 153 N. Y. Supp. 18), entered lant, v. TRAVIS, Respondent. (Court of Ap- January 28, 1916, which dismissed a writ of cer. peals of New York. Oct. 31, 1916.) Appeal from tiorari and confirmed a determination of the de an order of the Appellate Division of the Su- fendant public service commission requiring the preme Court in the Third Judicial Department relator to cease and desist from collecting from (167 App. Div. 475, 152 N. Y. Supp. 1058), en passengers on its street car lines in the city of tered May 15, 1915, which affirmed an order of Utica more than five cents for one continuous Special Term denying a motion for a writ of ride in either direction between any point on its mandamus to compel the defendant to reinstate Blandina street line and any point on its South the relator in the position of examiner of mu- street line in said city, and holding that the nicipal accounts from which he claimed to have relator in refusing to transport passengers for been removed for political reasons, contrary to one five-cent fare between points on its Blanthe Civil Service Law. Clarence U. Carruth dina street line and points on its South street and Charles R. Carruth, both of New York line is and has been violating section 181 of the City, and William W. Gerber, of Syracuse, for Railroad Law and certain provisions of the appellant. Egburt E. Woodbury, Atty. Gen. Public Service Commissions Law. Daniel E. (Edward G. Griffin, Deputy Atty. Gen., of coun- Meegan, of Utica, for appellant. Ledyard P. sel), for respondent.

Hale, of Albany, for respondent. PER CURIAM. Order affirmed, with costs. PER CURIAM. Order affirmed, with costs.

WILLARD BARTLETT, C. J.. and HIS HISCOCK, CHASE, CUDDEBACK, HOCOCK, CHASE, COLLIN, CUDDEBACK GAN, CARDOZO, and POUND, JJ., concur. HOGAN, and CARDOZO, 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 cer. 14, 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.

Laws, c. 60), authorizing the credit of payments, in the nature of a tax, against the tax on spe PEOPLE ex rel. PUBLICITY LEASING cial franchises. The relator's 1912 taxes are CO., Respondent, v. LUDWIG, Superintendent here the subject of dispute. On May 1, 1912, half of Buildings of Borough of Manhattan, et al., of these taxes, and half only, became due and Appellants. (Court of Appeals of New York. payable. This half amounted to $3,288.51. The Oct. 24, 1916.) Motion to amend remittitur. chamberlain's certificate appears to have been See 218 N. Y. 540, 113 N. E. 532. See, also, 114 issued on April 27th. In the six months pre- N. E. 1079. ceding the last-mentioned date the relator had PER CURIAM. Motion granted to the extent concededly paid $4,000. This extinguished the of inserting therein the following recital : “Upon May installment and left $711.49 to relator's the argument of this case in the Court of Apcredit. The November installment of taxes was peals the counsel for the appellant Mecca Real$3,288.51. Between April 27th and October 27th ty Company presented and argued the following (the dates of the chamberlain's certificates) the point: The ordinance is in conflict with secrelator had further paid $4,000, which, added to tions 1 and 6 of article 1 of the Constitution of the credit of $711.49 carried forward from May, the state of New York and with the Fourteenth gave $4,711.49 to its credit, or more than suf. Amendment of the federal Constitution.” ficient 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 PER CURIAM. Order affirmed, with costs. in the Third Judicial Department (173 App. Div. WILLARD BARTLETT, C. J., and HIS- 1916, which affirmed an order of Special Term

501, 159 N. Y. Supp. 1063), entered July 10, COCK, CHASE, COLLIN, CUDDEBACK, denying a motion for a peremptory writ of manHOGAN, and CARDOZO, JJ., concur.

damus to compel the reinstatement of the petitioner as custodian of records in the Rensse

laer 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. 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 PER CURIAM. Order reversed, with costs as being on duty in the police blotter in a space in all courts, on the dissenting opinion of Cochleft for that purpose, preceding an entry made rane, J., below, and peremptory writ of manby the police commissioner in such blotter at damus granted. 3:50. p. m. of the same day, in violation of para WILLARD BARTLETT, C. J., and CHASE, graph 486 of the rules and regulations of the COLLIN, HOGAN, and CARDOZO, JJ., con. police department. Second. That relator fail-cur. HISCOCK and CUDDEBACK, JJ., dised and neg ted to enforce compliance with the sent, on opinion of WOODWARD, J., below. rules and regulations on the part of Lieutenant Adams, in that he failed and neglected to take any action towards preferring charges against PEOPLE er rel. QUEENS COUNTY WAthe said Adams, who had failed and neglected TER CO., Appellant, v. TRAVIS, State Compto make entries in the blotter accurately and troller, Respondent. (Court of Appeals of New concisely in chronological order as required by York. Oct. 24, 1916.) Appeal from an order said paragraph 486 of the rules and regulations, of the Appellate Division of the Supreme Court although Adams had subsequently informed the in the Third Judicial Department (171 App. Div. said Captain Peabody of that fact; this is charg- 521, 157 N. Y. Supp. 943), entered March 15, ed to be in violation of paragraph 14 of the 1916, which confirmed a determination of the rules and regulations of the police department." state comptroller refusing to revise and readThe third specification charges the commission just a franchise tax imposed upon the relator of "a disorder to the prejudice of good order, for the year ending October 31, 1911, The efficiency and discipline." Lamar Hardy, Corp. question raised by the application for revision Counsel, of New York City (Frank Julian Price was whether or not, in addition to the tax imand Thomas F. Magner, both of Brooklyn, of posed on the water company based upon its gross counsel), for appellant. Moses H. Grossman, of earnings from all sources during the year in New York City, for respondent.

question, there could lawfully be imposed an adPER CURIAM. Order affirmed, with costs, ditional "tax on excess dividend” based upon on the ground that no question of law is pre- the par value of the capital stock of a new corsented for review.

poration, the Norumbega Company, to which WILLARD BARTLETT, C. J., and CHASE. certain land, no longer needful for the purposes COLLIN, HOGAN, CARDOZO, and POUND, ed during the same year, all of which capital

of the water company as such, had been convey. JJ., concur. CUDDEBACK, J., not voting.

stock was distributed ratably among the stockholders of the water company. Howard Mans

field, of New York City, and Michael D. Reilly, PEOPLE ex rel. PUBLICITY LEASING of Albany, for appellant. Egburt E. WoodCO., Respondent, v. LUDWIG, Superintendent bury, Atty. Gen. (Sanford W. Smith and Frank. of Buildings of Borough of Manhattan, et al., lin Kennedy, Deputy Attya Gen., of counsel), Appellants. (Court of Appeals of New York. , for respondent. Oct. 10, 1916.)

PER CURIAM, Order affirmed, with costs. PER CURIAM. Motions for reargument de HISCOCK, CHASE, CUDDEBACK, HOnied, with $10 costs of one motion. See 218 N. GAN, CARDOZO, and POUND, JJ., concur. Y. 540, 113 N. E. 532.

WILLARD BARTLETT, C. J., absent

tended that he was a veteran of the Civil War PEOPLE ex rel. RIDGEWOOD LAND & and was removed without charges or a hearing, IMPROVEMENT CO., Respondent, v. SAXE while the respondent retained in the city seryet al., State Tax Commission, Appellants. ice two painters who were nonveterans and who (Court of Appeals of New York. Dec. 12, 1916.) were in the same civil service classification, to Appeal from Supreme Court, Appellate Division, wit, "labor class." Parton Swift, of Buffalo, Third Department. Certiorari by the People of for appellant. William S. Rann, Corp. Counsel, the State of New York, on the relation of the of Buffalo (Frederic C. Rupp, of Buffalo, of Ridgewood Land & Improvement Company, counsel), for respondent. against Martin Saxe and others, constituting

PER CURIAM. Order affirmed, with costa. the State Tax Commission of the State of New York. From an order of the Appellate Division

WILLARD BARTLETT, C. J., and CHASE (174 App. Div. 344, 160 N. Y. Supp. 752), re- COLLIN, CUDDEBACK, HOGAN, CARDO versing a determination of the commission, re- Zo, and POUND, JJ., concur. fusing 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 Divi. asset remaining to the company was an overdue sion of the Supreme Court in the Fourth Judi. mortgage, 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 al. mained the said indebtedness of $32,000. Since leged to have been occasioned through the neg. 1906 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 re state comptroller beld 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 Buf. Rome, 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.

PER QURIAM. Judgment affirmed with WILLARD BARTLETT, C. J., and CHASE, costs. COLLIN, CUDDEBACK, and CÁRDOZO, JJ., concur. HOGAN and POUND, JJ., dissent WILLARD BARTLETT, O. J., and HIS

COCK, CHASE, COLLIŃ, CUDDEBACK, and CARDOZO, JJ., concur. POUND, J., not

sitting. PEOPLE ex rel. RUDD, Appellant, v. LEWIS, Dist. Atty., Respondent. (Court of Appeals of New York. Dec. 12, 1916.) Appeal from an PURCELL, Appellant, v. BURROUGHS et order of the Appellate Division of the Supreme al., Respondents. (Court of Appeals of New Court in the Second Judicial Department (173 York. Dec. 12, 1916.) Appeal from a judge App. Div. 714, 159 N. Y. Supp. 641), entered ment of the Appellate Division of the Supreme June 16, 1916, which affirmed an order of Spe- Court in the Fourth Judicial Department (167 cial Term denying a motion for a peremptory App. Div. 951, 151 N. Y. Supp. 1141), entered writ of mandamus to compel the defendant to March 6, 1915, affirming a judgment" in favor reinstate the relator in the position of clerk in of defendants entered upon a verdict directed the office of the district attorney of Kings coun- by the court in an action under section 2653a ty and dismissing an alternative writ theretofore of the Code of Civil Procedure to contest the granted. The relator was removed on charges validity of the will of Catherine A. Purcell, de after a hearing. He contended that the charg- ceased. The complaint in this action alleges the es were frivolous and unsubstantial and that the following as the grounds for setting aside the removal was for political reasons. Otho S. will: "That said alleged will of Catherine A. Bowling and Robert H. Elder, both of New Purcell was not executed by her in conformity York City, for _appellant. Harry, E. Lewis, with the requirements of the law. That at the Dist. Atty., of Brooklyn (Hersey Egginton, of time of the alleged signing and execution thereBrooklyn, of counsel), for respondent.

of the said Catherine A. Purcell was of unsound PER CURIAM. . Order affirmed, with costs. mind and incapable of making valid testaWILLARD BARTLETT, C. J., and CHASE. mentary disposition of her property. That the COLLIN, CUDDEBACK, HOGAN, CARDO- by the said Catherine A. Purcell, was secured

execution thereof, if the same was ever executed 20, and POUND, JJ., concur.

by the fraud and undue influence of William Purcell, deceased, her late husband, whereby

the intent and purpose of the said Catherine A. PEOPLE rel. SPIRE, Appellant, v. Purcell in making a testamentary disposition of KREINHEDER, Superintendent of Department her property was overcome and destroyed, and of Public Works. Respondent. (Court of Ap- the desire, will and purpose of the said Wilpeals of New York. Dec. 12, 1916.) Appeal liam Purcell, deceased, was substituted there from an order of the Appellate_ Division of the for." William H. Tompkins, of Rochester, for Supreme Court in the Fourth Judicial Depart- appellant. Fred A. Robbins, of Rochester, for ment (160 N. Y. Supp. 1142), entered Septem- respondents. ber 26, 1916, which reversed an order of Special

PER CURIAM. Judgment affirmed with Term granting a motion for a peremptory writ

costs. of mandamus to compel the defendant to reinstate the relator in the position of painter in the WILLARD BARTLETT, C. J., and CHASE bureau of water in the department of public COLLIN, CUDDEBACK, HOGAN, CARDO

ex

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 ap RICE, Respondent, V. POSTAL TELE peal from a prior order assessing a transfer tax GRAPH-CABLE CO., Äppellant. (Court of upon the estate of Susan E. Quinby, deceased. Appeals of New York.“ Dec. 5, 1916.) Appeal, The question at issue between the parties on by permission, from an order of the Appellate this appeal is the allowance or rejection of the Division of the Supreme Court in the Fourth claim of the executor that the net estate be re, Judicial Department (174 App. Div. 39, 160 N. duced by the amount of the executor's personal Y. Supp. 172), entered June 15, 1916, which claim against the estate of decedent for moneys affirmed an interlocutory judgment of Special paid by him individually for the principal and Term overruling a demurrer to the complaint interest of mortgages held by Daniel Quinby which alleged that on March 20, 1913, Charles upon the real property of decedent, with inter- Rice, while in the employ of the defendant and est to the date of the last appraisal, and also deductions for advances made by claimant for city of Rochester by taking hold of a wire which

as a result of its negligence, was killed in the the improvement of decedent's real property, was in contact with a high voltage wire of the Charles Haines and W. M. Du Bois, both of Rochester Railway & Light Company; that the White Plains, for appellant. Francis A. Wins decedent left his father, the plaintiff in this low, of New York City, for respondent.

action, as his sole next of kin; that by reason PER CURIAM. Order affirmed, with costs. of the facts aforementioned a cause of action

WILLARD BARTLETT, C. J., and CHASE, accrued in favor of the plaintiff through an adCOLLIN. CUDDERACK, 'HOGAN, CARDO- ministrator duly appointed and against the deZo, and POUND, JJ., concur.

fendant 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 READ, Appellant, V. NEW YORK CENT. a settlement with the plaintiff of whatever

claim he might have against the defendant and & H. R. R. CO., Respondent. (Court of Ap obtained his written release; that the represenpeals of New York. Dec. 28, 1916.), Appeal, tations made by the defendant to secure the re, by permission, from a judgment of the Appel: lease were false ; and that by reason of the late Division of the Supreme Court in the 150 N. Y. Supp. 1108), entered February 6, of his said cause of action for damages through First Judicial Department (165 App. Div. 910, premises the plaintiff, as such next of kin of

said Charles Rice, deceased, has been deprived 1915, afirmning a judgment in favor of defend: administrator duly appointed, for the negliant entered upon a dismissal of the complaint by the court at a Trial Term in an action to re- gent killing of said Charles Rice, deceased. The cover for the death of plaintiff's intestate the complaint herein state facts sufficient to

following questions were certified: "(1) Does alleged to have been occasioned through the constitute a cause of action? negligence of the defendant. The deceased re- defect of parties plaintiff herein? (3) Has the

(2) Is there a ceived the injuries resulting in bis death in a plaintiff herein legal capacity to sue ?" Hugh collision between an automobile in which he Satterlee, of Rochester, for appellant. Earl F. was riding and one of defendant's trains at a highway crossing of defendant's railroad in Van Case, of Rochester, for respondent. Cortlandt park, New York City. Stephen C.

PER CURIAM. Order affirmed, with costs. Baldwin, of Brooklyn, and George W. Weif- First and third questions certified answered in fenbach. and Charles E. Mahony, both of New the affirmative; second question in the negative. York City, for appellant. Robert A. Kutsch WILLARD BARTLETT, C. J., and CHASE, bock and Charles C. Paulding, both of New COLLIN, CUDDEBACK, HOGAN, CARDOYork City, for respondent.

Zo, and POUND, JJ., concur. PER CURIAM. Judgment affirmed, with costs.

RINTELEN v. SCHAEFER et al. (Court of HISCOCK, CHASE. COLLIN. CUDDE- Appeals of New York. Nov. 28, 1916.) Appeal BACK, and HOGAN. JJ.. concur. POUND, J., from a judgment of the Appellate Division of dissents. WILLARD BARTLETT, C. J., ab- the Supreme Court in the Second Judicial De sent,

partment (168 App. Div. 958, 153 Ņ. Y. Supp. 1140) entered June 3, 1915, affirming a judg

ment in favor of defendants entered upon a verRICCIARDELLI, Appellant, v. NEW YORK dict directed by the court in an action under CENT. & H. R. R. CO., Respondent. (Court section 2653a of the Code of Civil Procedure to of Appeals of New York. Nov. 21, 1916.) Ap- determine the validity of the will of Elizabeth peal from a judgment, entered April 14, 1915, Rintelen, deceased. Three issues were raised upon an order of the Appellate Division of the by the pleadings, viz.: Testamentary capacity; Supreme Court in the First Judicial Depart- undue influence; and execution not in conformment (165 App. Div. 152, 150 N. Y. Supp. 593), ity with the statute. Gormly J. Sproull and reversing a judgment in favor of plaintiff en- John McG. Goodale, both of New York City, tered upon a verdict and directing a dismissal for appellant. Henry C. Frey, of Jamaica, and of the complaint in an action to recover for the Gaston F. Livett, of Brooklyn, for respondents. death of plaintiff's intestate, alleged to have

PER CURIAM. Judgment affirmed, with been occasioned through the negligence of the

costs. defendant. Plaintiff's intestate was killed at the Van Cortlandt Park station of the defend

HISCOCK, CHASE, COLLIN, HOGAN,

WIL ant by a north-bound train, as he was crossing CARDOZO. and

POUND, JJ., concur. the north-bound tracks, his intention being to LARD BARTLETT, C. J., absent. board the train as a passenger. Louis Steckler and Isidor Frey, both of New York City, for appellant. Robert A. Kutschbock and Alex.

ROESLER, Respondent, DUNKIRK ander $. Lyman, both of New York City, for HOME TELEPHONE CO., Appellant. (Court respondent

of Appeals of New York. Dec. 15, 1916.) Ap

peal from a judgment of the Appellate Division pellant. Isaac H. Lery, of New York City, of the Supreme Court in the Fourth Judicial for respondent. Department (166 App. Div. 967, 151 N. Y. PER CURIAM. Order affirmed, with costs, Supp. 1142), entered January 25, 1915, affirm- and question certified answered in the affirmaing a judgment in favor of plaintiff entered up-tive. on a verdict in an action to recover for per WILLARD BARTLETT, C. J., and HISsonal injuries alleged to have been sustained by COCK, CHASE, CUDDEBACK, HOGAN, and plaintiff through the negligence of defendant. POUND, JI., concur. CARDOZO, J., not sitPlaintiff received an electric shock by coming in

ting. contact with a wire attached to one of defendant's poles about three feet from the ground, which wire hung across an electric_light wire SALISBURY, Respondent, v. HENION, Ap heavily charged with electricity. Edward H. pellant. (Court of Appeals of New York. Dec. Letchworth, of Buffalo, for appellant. Nelson 15, 1916.) Appeal from a judgment of the ap J. Palmer, of Dunkirk, for respondent.

pellate Division of the Supreme Court in the PER CURIAM. Judgment affirmed, with Fourth Judicial Department (170 App. Dis. costs.

934, 154 N. Y. Supp. 1143), entered July 16, WILLARD BARTLETT, C. J., and CHASE, tiff entered upon a verdict in an action based

1915, affirming a judgment in favor of plainCOLLIN, CUDDEBACK, HOGAN, CARDOzo, and 'POUND, JJ., concur.

upon 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 Beulab Copper ComIn re ROSEDALE AVE. IN CITY OF NEW The complaint says that the decedent, by con

pany, and claiming interest from June 1, 1902. YORK. (Court of Appeals of New York. Nov. tract in writing on May 29, 1902, undertook 28, 1916.)

with plaintiff that if plaintiff would buy 5.000 PER CURIAM. Motion for reargument de shares of this stock, decedent would buy from nied, with $10 costs. See 219 N. Y. 192, 114 N. plaintiff 2,500 shares thereof and pay 70 cents E. 49.

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 RYDER et al. v. KENNEDY et al. (Court plaintiff has ever since held the stock for de of Appeals of New York. Nov. 28, 1916.) Mo- cedent. George P. Decker and H. J. Menzie, tion to dismiss an appeal from a judgment of both of Rochester, for appellant. John H. the Appellate Division of the Supreme Court Agate, of Rochester, for respondent. in the Second Judicial Department (172 App. PER CURIAM. Judgment affirmed, with Div. 890, 155 N. Y. Supp. 1139), entered De costs. cember 9, 1915, affirming a judgment entered WILLARD BARTLETT, O. J., and CHASE, upon the report of a referee in an action of COLLIN, CUDDEBACK, 'HOGAN, CARDOpartition. The motion was made upon the zo, and POUND, JJ., concur. 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 SCHMEISER, Respondent, v. SCHMEISappeal was frivolous, and presented solely for ER, Appellant, et al. (Court of Appeals of purpose of delay. John F. McFarland, of New York. Dec. 28, 1916.) Appeal from a Brooklyn, for the motion. George H. Francoeur, judgment of the Appellate Division of the Suof New York City, opposed.

preme Court in the Second Judicial Department PER CURIAM, Motion denied, with $10 (156 App. Div. 914, 141 N. Y. Supp. 1145), encosts.

tered 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 R. & L. COMPANY, Appellant, . METZ, tiff to the defendant on the ground that the de

brought to cancel a deed executed by the plainRespondent. (Court of Appeals of New York: fendant procured the same by false and fraudOct. 17, 1916.) Appeal, by permission, from an ulent representations that the said deed was a order of the Appellate Division of the Supreme last will and testament. Court in the First Judicial Department, enter

The answer admits ed June 28, 1916 (160 N. Y. Supp. 145), which the execution of the deed and denies all other affirmed an order of Special Term overruling a allegations. As a separate defense the answer demurrer to new matter set up in defendant's alleges certain work, labor, and services peramended answer. The defense interposed and formed by defendant for plaintiff ; also that he demurred to sets up the statute of frauds, in bad expended divers sums of money for taxes that the "alleged agreement mentioned and de- and improvements of the real estate mentioned, scribed in the first cause of action set forth in and in consideration thereof plaintiff duly ex the complaint was for the sale of goods at ecuted and delivered the deed." Hermon Acker. a price of more than fifty dollars; that neither man, of New York City, for appellant. Charles the said agreement nor any note' or memoran. E. Gostenhofer, Montague Lessler, and Leonard dum thereof was ever made in writing and sub- J. Obermeier, all of New York City, for re scribed by this defendant, who is sought to be

spondent. charged therewith, or by his lawful agent, nor PER CURIAM. Judgment afirmed, with did this defendant at the time of the alleged costs. sale accept or receive any part of the said goods. HISCOCK, CHASE, COLLIN, CUDDE nor did. this defendant at the times mentioned BACK, HOGAN, and POUND, JJ., concur. in said alleged first cause of action pay any part WILLARD BARTLETT, C. J., absent. 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 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

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