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tered June 16, 1915, affirming a judgment in WILLARD BARTLETT, C. J., and CHASE, favor of plaintiff entered upon a verdict in an COLLIN, CUDDEBACK, CARDOZO,

and action to recover for the death of plaintiff's in- POUND, JJ., concur. HOGAN, J, absent. testate alleged to have been occasioned through the negligence of the defendant, his employer. The deceased was foreman of the men engaged

In in making packing boxes in the defendant's

re SHILOH BAPTIST CHURCH. printing establishment, his principal duty, how- (Court of Appeals of New York. Dec. 5, ever, being to operate the circular saws, by 1916.) Appeal from an order of the Appellate means of which boards of various sizes were Division of the Supreme Court in the Second cut into the required shape and size for the Judicial Department (159 N. Y. Supp. 1146), making of these boxes. The plaintiff claims entered June 29, 1916, which affirmed an order that a stick was thrown by a circular saw and of Special Term setting aside an election of struck the deceased causing a fatal injury, and trustees of Shiloh Baptist Church and ordering demands damages, alleging that the defendant a new election in a proceeding under section 32 negligently failed to comply with section 81 of of the General Corporations Law (Consol. Laws, the Labor Law (Consol. Law, a 31), requiring 4,23).. Charles A. Smythwick, of New York circular saws to be "properly

guarded." Frank City, for appellants. Martin 'J. Tierney, of Verner Johnson and Amos H. Stephens, both New Rochelle, and William J. McDonnell, of of New York City, for appellant. Edwin D. New York City, for respondents. Webb and Frederick N. Van Zandt, both of PER CURIAM. Order affirmed, with costs. New York City, for respondent.

WILLARD BARTLETT, C. J., and CHASE, PER CURIAM. Judgment afirmed, with COLLIN, CUDDEBACK, CARDOZO, and costs.

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

SIMPSON, Appellant, v. KUMPF, Respondent. (Court of Appeals of New York. Nov. 21, 1916.). Appeal from a judgment of the Appel

late Division of the Supreme Court in the First SCHWAB v. BOYLE et al., Board of Elec- Judicial Department (167 App. Div. 926, 152 tions of the City of New York, et al. (Court N. Y. Supp. 1143), entered March 12, 1915, afof Appeals of New York. Oct. 20, 1916.). Ap- firming a judgment in favor of defendant enpeal from an order of the Appellate Division of tered upon a dismissal of the complaint by the the Supreme Court in the First Judicial De court on trial at Special Term. Plaintiff sues partment (160 N. Y. Supp. 894), entered Octo as the receiver of the Lockwhit Company apber 10, 1916, which affirmed an order of Special pointed in supplementary proceedings to recover Term denying a motion for a peremptory writ the sum of $392.50, which is the unexpended of mandamus to compel the defendants to re balance of the sum of $9,000 transferred by the frain from certifying that a vacancy exists in Lockwhit Company, the judgment debtor, to dethe office of president of the board of aldermen fendant and two others, as trustees, for the pur: of the city of New York to be filled at the en- pose of receiving the same and applying said suing election. Roger Foster, Ira J. Ettinger, sum proportionately on account of the debts of and Joseph H. San, all of New York City, for Lockwhit Company. See, also, 216 N. Y. 634, appellant. Lamar Hardy, Corp. Counsel, of 110 N E. 1050. Emilie M. Bullowa and FerdiNew York City (Terence Farley, of New York nand E. M. Bullowa, both of New York City, City, of counsel), for respondents.

for appellant. L E. Schlechter and Jacob PER CURIAM. Order affirmed, with costs, Zelenko, both of New York City, for respondent. on opinion of McLaughlin, J., below.

PER CURIAM. Judgment affirmed, witb WILLARD BARTLETT, C. J., and CHASE,

costs. COLLIN, CUDDEBACK, CARDOZO, and

WILLARD BARTLETT, O. J., and HISPOUND, JJ., concur.

COCK, COLLIN, CUDDÉBACK, HOGAN,
CARDOZO, and POUND, JJ., concur.

In re SEAICH. (Court of Appeals of New York. Dec. 5, 1916.) Appeal from an order

SIMPSON et al., Respondents, v. METROof the Appellate Division of the Supreme Court POLITAN TRUST CO. OF CITY OF NEW in the First Judicial Department (170 App. Div. / YORK, Appellant. (Court of Appeals of New 686, 156 N. Y. Supp. 579), entered January 4, York. Dec. 28, 1916.) Appeal from a judg1916, which modified, and affirmed as modified, ment of the Appellate Division of the Supreme an order of Special Term confirming the report Court in the First Judicial Department (169 of appraisers in a proceeding brought under App. Div. 923, 153 N. Y. Supp. 1144), entered sections 7 and 8 of the Business Corporations June 29, 1915, affirming a judgment in favor Law (Consol. Laws, c. 4) providing for the of plaintiffs entered upon a verdict directed by consolidation of corporations. The Yellow Tax- the court upon the pleading in an action upon icab Company and the Mason-Seaman Trans- a promissory note. The answer alleged in subportation Company on March 7, 1914, entered stance that the sole co isideration for the note into an agreement of consolidation, which was

in suit was the payment of a fee for legal serve authorized and approved by all the stockholders ices, the claimants being the attorneys for the of both companies, except the petitioner herein, makers of the note, and withholding from who owned about' 2 per cent. of the preferred them at the time all knowledge of the fact that stock and 18/10 per cent. of the common stock they had already received approximately the of the Yellow Taxicab Company. Under sec

same amount from another source for the same tion 8 of the Business Corporations Law the work. Nash Rockwood and Lawrence B. Mcpetitioner applied to the court for the appoint- Kelvey, both of Saratoga Springs, for appellant. ment of appraisers to appraise the value of his Graham Sumner, of New York City, for restock. See, also, _218 N. Y. 692, 113 N. D. spondents. 1066. Henry B. Twombly, of New York City, PER CURIAM. Judgment afirmed, with for appellant T. Ludlow Chrystie and Wil- costs. liam J. Moran, both of New York City, for re

WILLARD BARTLETT, C. J., and HISspondent.

COCK, CHASE, COLLIN, CUDDEBACK, PER CURIAM. Order affirmed, with costs. HOGAN, and POUND, JJ., concur.

and dangerous, and in failing to provide the S. SHANKER METAL CEILING CO., Inc., plaintiff's intestate with an adequate and sufv. FORT MASONRY CO. et al. (Court of Ap- ficient scaffold and with a reasonably safe place peals of New York. Oct. 17, 1916.) Motion to work, planks and materials. E. Clyde Sherto dismiss an appeal as to plaintiff, respondent, wood, William B. Davis, and Amos H. Stephens, from a judgment of the Appellate Division of all of New York City, for appellant. Ralpb the Supreme Court in the First Judicial De Gillette, of New York City, for respondent. partment (159 N. Y. Supp. 1143), entered June

PER CURIAM. 20, 1916, affirming a judgment of the Bronx costs.

Judgment affirmed, with County Court in an action to foreclose a mechanic's lien. The motion was made upon the

WILLARD BARTLETT, C. J., and HIS grounds that the Appellate Division had unani- COCK, CHASE, COLLIN, 'HOGAN, CARDO mously decided that the findings of fact were zo, and POUND, JJ., concur. sustained by the evidence, that no question of law was involved, and that the exceptions were frivolous. Louis Weinberger, of New York City, for the motion. David Steckler, of New al., Respondents. (Court of Appeals of New

TREEMARMEN, Appellant, v. FRANK et York City, opposed.

York. Oct. 10, 1916.) Motion to dismiss an apPER CURIAM. Motion denied, without peal from a judgment of the Appellate Division of costs.

the Supreme Court in the second Judicial De partment (158 N. Y. Supp. 1133), entered April

25, 1916, affirming a judgment in favor of deIn re TITUS et al. (Court of Appeals of fendants entered upon a dismissal of the comNew York. Oct. 31, 1916.) Appeal from an plaint by the court at a Trial Term in an ac order of the Appellate Division of the Su- tion to recover for personal injuries alleged to preme Court in the First Judicial Department have been sustained by plaintiff through the (170 App. Div. 764, 156 N. Y. Supp. 509), en negligence of defendants. The motion was tered December 30, 1915, which reversed 80 made upon the ground of failure to file the re much of a decree of the New York County Sur. quired undertaking. Henry Ginnane, of New rogate's Court settling the accounts of the ex York City, for motion. ecutorg of Edward P. Hatch, deceased, as di PER CURIAM. Motion granted, and appeal rects the assignment to the respondents, the dismissed, with costs and $10, costs of motion. Real Estate Title Insurance and Trust Company of Philadelphia, Herbert P. Queal and Harry T. Stoddart as trustees under four certain deeds of trust, made by William W. Hendrick In re TRUESDELL (Court of Appeals son, Boyd Hatch and Livingston Hatch re of New York. Dec. 5, 1916.) Appeal spectively, of certain securities therein enu from an order of the Appellate Division of merated, in lieu of cash or of the entire share the Supreme Court in the Second Judicial De of their said assignors or mortgagors, in full partment (160 N. Y. Supp. 1148), entered July satisfaction of their claims against the said as-29, 1916, which affirmed an order of the Westsignors or mortgagors or their estates, and in chester County Surrogate's Court permitting 80 far as said decree refuses to allow them the petitioner to issue execution upon two costs and counsel fees. Frederick T. Kelsey, judgments obtained against Thaddeus K. Green, Arthur Butler Graham, Louis Weinberger, and since deceased. The surrogate held that these Jacob Weinberger, all of New York City, Loren two judgments were liens upon the property of E. Harter, of Brooklyn, and Henry G. Gray, of the decedent Thaddeus K. Green at the time of New York City, for appellants. Otto C. Wie bis death and at the time of the filing of rum, Jr., and Nelson S. Spencer, both of New respondent's petition in the Surrogate's Court; York City, for respondent executors. George and the decree directed that the respondent be S. Mittendorf, of New York City, for respond- permitted to issue executions upon these judge ents Real Estate Title Insurance & Trust ments against the property of Mr. Green there Company and others.

in described, upon which these judgments are PER CURIAM. Order affirmed, with costs. debtor was still living. Benjamin Scharps, of

liens, with like effect as if the said judgment WILLARD BARTLETT, C. J., and HIS- New York City, for appellant. Floyd M. COCK,, CHASE, COLLIN, CUDDEBACK, Grant, of White Plains, for respondent. HOGAN, and CARDOZO, JJ.,

PER CURIAM. Appeal dismissed, without costs, on the authority of Matter of Union

Trust Co., 172 N. Y. 494, 65 N. E. 259. TOMS, Respondent, v. POST & McCORD, WILLARD BARTLETT, C. J., and CHASE, Appellant, et al. (Court of Appeals of New COLLIN, CUDDEBACK, CARDOZO, and York. Nov. 21, 1916.) Appeal from a judg- POUND, JJ., concur. HOGAN, J., absent. ment of the Appellate Division of the Supreme Court in the First Judicial Department (168 App. Div. 942, 152 N. Y. Supp. 1146) entered May 13, 1915, affirming a judgment in favor

USONA STAMPING WORKS, Respondent, of plaintiff entered upon a verdict in an ac V. WAGNER, Appellant, et al. (Court of Aption to recover for the death of plaintiff's in-peals of New York. Oct. 10, 1916.) Motion to testate, alleged to have been occasioned through dismiss an appeal from a judgment of the Ape the negligence of the defendant, appellant, his pellate Division of the Supreme Court in the employer. The negligence charged in the com- First Judicial Department (171 App. Div. 913, plaint is: Defects in the condition of the 155 N. Y. Supp. 1145), entered December 2, ways, works and plant, in that the girder on 1915, affirming a judgment in favor of plaintiff which the plaintiff's intestate was required to entered upon a verdict in an action for conwork was inadequate and insufficient for his version. The motion was made upon the ground safety, and was coated with ice and was slip- that the Appellate Division had unanimously pery and dangerous. Negligence of superintend decided that the findings of fact were supported ence and of a person intrusted with authority to by the evidence and that the exceptions present direct, control and command the plaintiff's in- no question which may be reviewed. Walter testate, in directing and requiring the plaintiff's L. Bunnell, of New York City, for the motion. intestate to work upon an iron or steel girder Louis J. Halbert, of Brooklyn, opposed. while the same was inadequate and insufficient PER CURIAM. Motion granted, and appeal for his safety, and coated with ice and slippery dismissed, with costs and $10 costs of motion

concur.

costs.

affirming a judgment in favor of plaintiffs enterVAN COTT V. VAN COTT et al. (Court of ed upon a decision of the court at a Trial Term Appeals of New York. Dec. 28, 1916.) Appeal without a jury in an action to restrain defendant from Supreme Court, Appellate Division, First from interfering with or removing, water pipes Department. Action by Elbert Van Cott against from certain real estate and awarding damages Mortimer Van Cott, Jr., and others. From a for water pipes already disconnected and rejudgment of the Appellate Division of the Su moved therefrom. Edgar T. Brackett, Sheridan preme Court in the First Judicial Department P. Wait, and Luther A. Wait, all of Saratoga (167 App. Div. 694, 152 N. Y. Supp. 840), enter Springs, for appellant. Andrew J. Nellis and ed May 7, 1915, upon the submission of a con. Walter E. Ward, both of Albany, for respondtroversy under section 1279 of the Code of ents. Civil Procedure upon an agreed statement of PER CURIAM.

Judgment affirmed, with facts affecting the method of the distribution or costs. division of the proceeds of sale of real property, or the respective interests in such realty, if not COLLIN, CUDDEBACK, 'HOGAN, CARDO

WILLARD BARTLETT, C. J., and CHASE, sold, which has been held in trust by, this de zo, and POUND, JJ., concur. fendant under

the provisions of the third paragraph of the will of Jacob Weeks Cornwell, deceased, pursuant to an order of the Supreme Court, New York county, appointing the WASMER, Respondent, v. RUPPERT et al., Windsor Trust Company, the predecessor of this Appellants. (Court of Appeals of New York. defendant, to execute the trust, and such trust Dec. 28, 1916.) Appeal from a judgment of the now having terminated by reason of the death Appellate Division of the Supreme Court in the of the life beneficiary, the testator's widow, Second Judicial Department (166 App. Div. Elbert Van Cott and Mortimer Van Cott, Jr., 903, 151 N. Y. Supp. 1147), entered January 4, appeal. The questions raised in the court be 1915, affirming a judgment in favor of plaintiff's low and upon this present appeal relate assignor entered upon a verdict in an action cbiefly to the construction of the third para- for libel arising from the publication of a nograph of Mr. Cornwell's will, wherein bis tice that certain chattels would be sold under a trustees are directed upon the death of his chattel mortgage given by plaintiff's assignor, widow to sell the trust property and distribute "upon which default has been made." The debt the proceeds, and to the respective interests of had been previously paid. Ashbel P. Fitch, the several distributees therein. Affirmed. of New York City, for appellants. Thomas A. Arthur M. Johnson, of Mt. Verpon, for, ap. McKennell and Alfred H. Appell, both of New pellants. Robert W. Candler, of New York York City, for respondent, City, for respondent Empire Trust Co.

PER CURIAM. Judgment affirmed, with Francis A. Winslow and Bern Budd, both of

costs. New York City, for other respondents.

CHASE, COLLIN, CUDDEBACK, HOGAN, PER CURIAM. Judgment affirmed, without CARDOZO, and POUND, JJ., concur. WIL

LARD BARTLETT, C. J., dissents.
WILLARD BARTLETT, 0. J., and HIS-
COCK, COLLIN, CUDDEBACK, HOGAN,
CARDOZO, and POUND, JJ., concur.

WATER COM’RS OF CITY OF BINGHAM-
TON, Appellants, v. CITY OF BINGHAMTON

et al., Respondents. (Court of Appeals of New VAN DUSEN, Respondent, v. NORTHWES- York. Oct. 24, 1916.) Appeal, by permission, TERN MUT. LIFE INS. CO., Appellantfrom an order of the Appellate Division of the (Court of Appeals of New York. Oct. 31, 1916.) Supreme Court in the Third Judicial DepartAppeal from a judgment of the Appellate Divi- ment (173 App. Div. 327, 158 N. Y. Supp. 888), sion of the Supreme Court in the Fourth Judi- entered May 15, 1916, which reversed an order cial Department (165 App. Div. 946, 150 N. Y. of Special Term overruling a demurrer to the Supp. 1116), entered November 18, 1914, affirm- complaint and sustained such demurrer. The ing a judgment in favor of plaintiff entered upon question to be determined was whether chapter a verdict in an action to recover for the death 780 of the Laws of 1867 creating a board of of plaintiff's intestate alleged to have been oc- water commissioners in the city of Binghamton casioned through the negligence of the defend- was repealed by the provisions of the Second ant. The plaintiff's intestate was walking out Class Cities Law (Laws 1909, c. 55 (Consol. of the entrance to the place of business where he Laws, c. 53]) when the city of Binghamton be was employed in a building owned by defendant came subject to the operation of that law. The when he was struck by an anvil thrown from following question was certified: “Does the a platform connected with a stairway on the complaint herein state facts sufficient to conexterior of the building. The anvil was thrown stitute a cause of action ?". George B. Curtiss, down by some employés of an organization which of Binghamton, for appellants. Maurice E. had rented a ball in the building who were re- Page, of Binghamton, for respondents. moving the anvils under the alleged direction PER CURIAM. Order affirmed, without and supervision of the defendant's agent and costs, and question certified answered in the servant in charge of the building. F. W. Thom

negative. son and C, V. Byrne, both of Syracuse, for appellant. A. Lee Olmsted, of Syracuse, for re- COCK, CHASE, COLLIN,, CUDDEBACK,

WILLARD BARTLETT, C. J., and HISspondent.

HOGAN, and CARDOZO, JJ., concur. PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, CUDDEBACK,

WEIDMANN, Respondent, v. BORDEN et CARDOZO, and POUND, JI., concur.

al., Appellants. (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. WARD et al., Respondents, v. BRIGGS, Ap- 912, 152 N. Y. Supp. 1148), entered April 26, pellant. (Court of Appeals of New York. Dec. 1915, affirming a judgment in favor of plaintifi 12, 1916.) Appeal from a judgment of the Ap- entered upon a verdict in an action for converpellate Division of the Supreme Court in the sion. Jacob Weidmann, plaintiff's testator, loanThird Judicial Department (169 App. Div. 904, ed the Zust Motor Company, a New York corpo 152 N. Y. Supp. 1147), entered May 6, 1915, ration, $3,000, for which he was given a chattel

mortgage upon a chassis and certain machinery, vivors or survivor of them, in trust to hold the lathes, presses, and tools of every kind at No. 235 saine during the life of my daughter Mary West Hiftieth street, in the borough of Manhat. Louisa Seaman, and to pay her the net income tan, city of New York. Mr. Weidmann died and thereof, semiannually, during her life, and upon the Zust Motor Company became bankrupt. It her death, to pay and transfer the principal was alleged that the tools and machinery came in- thereof to her lawful issue, or in default of to possession of defendants who refused to deliver such issue, to divide the same equally among the same to a representative of the mortgagee her brothers and sister, the descendants of any and that they were thereafter sold. Francis deceased brother or sister to take the share their Colety, of New York City, for appellants. Mar- parent would bave been entitled to if living." tin Conboy and Philip Š. Hill, both of New At the time of the creation of the trust Mary York City, for respondent.

L Seaman had two children living, a son, Allan PER CURIAM. Judgment affirmed, with H. Seaman, and a daughter, Jane's., now wife

of John De C. Van Etten, the respondent on costs.

this appeal. No other child was born to her HISCOCK, CHASE. COLLIN, HOGAN, thereafter. Allan H. Seaman died before bis CARDOZO, and POUND, JJ., concur. WIL- mother, leaving a widow, the appellant Nina Vop LARD BARTLETT, C. J., is of the opinion Bach Seaman, but no child or descendant. He that the evidence as to the value was inadmissi- left a will giving all his property to said wife, ble, and he concurs upon the ground that the and appointed her sole executrix. On behalt error was not harmful under the circumstances. of the respondent Jane S. Van Etten, it is

claimed that the remainders did not vest until

the death of the life beneficiary, and that the WEISMAN, Respondent, v. CITY OF NEW respondent, being her sole surviving issue and YORK, Appellant. (Court of Appeals of New descendant, is entitled to the whole of the trust

estate. In bebalf of the appellant Nina Von York. Nov. 28. 1916.) _Motion to amend remittitur. See 219 N.' Y. 178, 114 N. E. 70. the will of Allan H. Seaman, it is claimed that

Bach Seaman, individually and as executrix of PER CURIAM. Motion granted, and remit- the said Allan H. Seaman took a vested remaintitur amended, so as to read as follows: ..."Judg. der upon the death of the testatrix, and that such ment of Appellate Division reversed, with costs interest passed by his will and is now vested in in both courts, and judgment of Trial Term the appellant. The surrogate decided that Allan affirmed."

H. Seaman took a vested remainder on the death of the testatrix, and that it passed by his

will to the appellant, and the decree was made In re' WEST. (Court of Appeals of New in accordance with that decision. The AppelYork. Dec. 5, 1916.). Appeal from an order late Division reversed this decision and modified of the Appellate Division of the Supreme Court the decree by directing the payment of the trust in the Third Judicial Department (170 App. Div. fund to Jane S. Van Etten. Henry Willis 926. 154 N. Y. Supp. 1150), entered July 25, Smith, of New York City, for appellant. Clar1915, which affirmed a decree of the Saratoga ence L. Westcott, and Egbert C. Simonson, both County Surrogate's Court denying an application of New York City, for respondents. by Walter S. West to be reinstated as one of the trustees under the last will and testament of his

PER CURIAM. Order affirmed, with costs. father, George West, deceased. In December, WILLARD BARTLETT, C. J., and CHASE, 1907, 'Walter s. West was declared an incomo COLLIN, CUDDEBACK, HOGAN, CARDOpetent person by an order of the Supreme Court ZO, and POUND, JJ., concur. of the state of New York, and a committee of his person and property was appointed. Thereafter on petition, setting forth that be had been

WILLIAMS et al., Appellants, V. CITY OF declared an incompetent person and a committee appointed of his person and property, he was NEW YORK, Respondent. (Court of Appeals removed as one of the trustees because of such of New York. Oct. 3, 1916.) Appeal from a incompetency and Hiram C. Todd was appointed judgment of the Appellate Division of the Susubstituted trustee in his place. Walter H. preme Court in the First Judicial Department Cogan, of Albany, for appellant. Edgar T. (171 App. Div. 952, 156 N. Y. Supp. 1150), Brackett, of Saratoga Springs, for respondent, entered December 31, 1915, affirming a judgment PER CURIAM. Order affirmed, with costs. rected by the court in an action to recover for

in favor of defendant, entered upon a verdict diWILLARD BARTLETT, C. J., and CHASE, an alleged breach of contract. The plaintiffs COLLIN, CUDDEBACK, HOGAN, CARDO- entered into a contract with the city of New Zo, and POUND, JJ., concur.

York, acting by and through the aqueduct commissioners, wherein the plaintiffs agreed to fur.

nish all the materials and labor for the perIn re WESTCHESTER TRUST CO: (Court manlike manner construct a dam on the Croton

formance, and in a good, substantial and workof Appeals of New York. Dec. 12, 1916.). Ap- river at Muscoot mountain in the towns of Som. peal from Supreme Court, Appellate Division, Second Department. In the matter of the known as the Muscoot dam, with its gate houses,

ers and Bedford, Westchester county, to be accounting of the Westchester Trust Company; overflow and other appurtenances. Subsequentas substituted trustee under the will of Margaret De Frate Hodgman, deceased. From an orderly plaintiffs, alleging breach of contract by of the Appellate Division of the Supreme Court this action to recover the value of work done

the defendant, abandoned the work and brought in the Second Judicial Department (173 App. Div. 403, 159 N. Y. Şupp. 887), modifying,

and claim sought to recover the difference between

and damages. Defendant by way of counteraffirming as modified, a decree of the West: the contract price and the amount espended to chester County Surrogate's Court, on appeal by Jane S. Van Étten from part thereof, Nina Von complete the work. L. Labin Kellogg, of New Bach Seaman, individually and as executris, Corp. Counsel, of New York City (Terence

York City, for appellants. 'Lamar Hardy, appeals. Affirmed. The sole question presented by the appeal is the construction of a part of the Farley, of New York City, of counsel), for fourth clause of Mrs. Hodgman's will, by which

respondent. the trust was created, and of which the following

PER CURIAM. Judgment affirmed, with is a copy: "And the remaining equal fifth part

costs. I give and bequeath to my executors, or those WILLARD BARTLETT, C. J., and COL

JJ., concur. HISCOCK, J., dissents, on the E. Buckingham, of New York City, for respondground that it was error for the court to hold ent trustee of Carrie R. Castree, deceased. as matter of law that the city did not commit William H. Ford and George M. Thompson, a breach of this contract by withholding pay- both of New York City, for respondents Wilment on the certificates.

liams and others. Phönix Ingraham, of New York City, for respondents John M. Dodd and

others. WILLIAMS, Appellant, v. VAN WAGENEN

PER CURIAM. Judgment affirmed, with

costs. et al., Respondents. (Court of Appeals of New York. Dec. 28, 1916.) Appeal from a judg.

WILLARD BARTLETT, C. J., and HISment of the Appellate Division of the Supreme COCK,, CHASE, COLLIŃ, CUDDEBACK, Court in the First Judicial Department (170 HOGAN, and POUND, JJ., concur. App. Div. 896, 154 N. Y. Supp. 1150), entered July 28, 1915, affirming a judgment in favor of defendants, entered upon a decision of the court WILLOUGHBY, Respondent, v. BROTHERon trial at Special Term in an action brought HOOD OF LOCOMOTİVE FIREMEN & ENfor the construction of the will of John M. Dodd, GINEMEN, Appellant. (Court of Appeals of deceased, whereby it was decreed that by the New York. Oct. 10, 1916.) Motion to dismiss will of Carrie R. Castree, deceased, donee of a an appeal from a judgment of the Appellate power of appointment under the will of said Division of the Supreme Court in the Fourth John M. Dodd, deceased, she effectually exer- Judicial Department (159 N. Y. Supp. 1150), cised the said power of appointment in conformi- entered May, 31, 1916, affirming a judgment in ty with the correct construction of the will of favor of plaintiff entered upon a verdict in an said John M. Dodd, deceased. This appeal action to recover a death benefit.

The moraises the question: "Did the plaintiff, as re- tion was made upon the ground that the Appelmair.derman, have such an absolute vested in late Division unanimously decided that there terest in the estate of John M. Dodd, deceased, was evidence sufficient to sustain the verdict under the third and fourth clauses of his will, and that the exceptions were frivolous. Charles that immediately upon the death of Carrie R. Newton, of Buffalo, for the motion. George J. Castree, the life beneficiary, she became the Arnold, of Buffalo, opposed. absolute owner thereof, or could the interest PER CURIAM. Motion granted, and appeal of the plaintiff be divested by the life bene- dismissed, with costs and $10 costs of motion. ficiary's exercise of the power of appointment contained in the fourth clause of said will. Plaintiff's contention is that her interest could not be defeated; that her estate in remainder was

WOOD, Respondent, v. VILLAGE OF RICH. vested and absolute. The guardian ad litem con- FIELD SPRINGS, Appellant. (Court of Aptends, and the court below held, that the plain- peals of New York. Oct. 10, 1916.) Motion to tiff became entitled to an estate in remainder dismiss an appeal from a judgment, entered in the principal of the trust fund, subject to December 8, 1914, upon an order of the Appelopen and let' in after-born children of Carrie late Division of the Supreme Court in the Third R. Castree, and subject to divestment in the Judicial Department (163 App. Div. 103, 148 event of Carrie R. Castree exercising her power N. Y. Supp. 498), reversing a judgment in favor of appointment pursuant to the will of John M. of defendant entered upon the report of a ref. Dodd. Carrie R. Castree appointed the use and eree and directing judgment in favor of plaintiff. income of the trust fund to the plaintiff during The motion was made upon the grounds of failher iife with remainder to the plaintif's surviv. ure to file the required return, that the decision ing issue, with limitations over in the event of of the Appellate Division was unanimous, that her death without issue. William W. Green and no questions of law were involved, and that the Edward W. Walker, both of New York City, exceptions were frivolous. Lynn J. Arnold, for appellant. Louis F. Dodd and George Rosen of Albany, for the motion. dale, both of New York City, for respondent PER CURIAM. Motion granted, and appeal trustees of Jobo M. Dodd and others. Charles 'dismissed, with costs and $10 costs of motion.

END OF CASES IN VOL. 114

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