MEMORANDUM DECISIONS.

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motion for a new trial in an action to reALDEN SPEARE'S SONS Co., Appellant, cover for personal injuries and injuries to V. ALGER, Respondent. (Court of Appeals of property, alleged to have been occasioned New York. June 5, 1906.) Appeal from a through defendant's negligence. Eugene Lamb judgment of the Appellate Division of the Richards, Jr., and Ralph G. Miller, for apSupreme Court in the First Judicial Department pellant. Julien T. Davies, Jr., Ward 'W. Pick(103 App. Div. 597, 92 N. Y. Supp. 1114), ard, and George W. McAdam, for respondent. entered April 5, 1905, affirming a judgment PER CURIAM. Judgment affirmed, with in favor of defendant entered upon a dismissal

costs. of the complaint by the court at a Trial Term,

CULLEN, C. J., and GRAY, EDWARD T. and an order denying a motion for a new trial

BARTLETT, HAIGHT, WERNER, and HISin an action to recover damages alleged to have been caused plaintiff through false rep

COCK, JJ., concur. O'BRIEN, J., absent. resentations made by defendant. William E. Warland, for appellant. George Lawyer, for BAYLES, Respondent, v. STRONG, Appelrespondent.

lant. (Court of Appeals of New York. June PER CURIAM. Judgment affirmed, with 5, 1909.) Appeal from a judgment of the Apcosts.

pellate Division of the Supreme Court in the CULLEN, C. J., and EDWARD T. BART- Second Judicial Department (104 App. Div. LETT, HAIGHTand CHASE, JJ., concur. 153, 93 N. Y. Supp. 346), entered May 8, 1905, GRAY and O'BRIEN, JJ., absent. HISCOCK, affirming a judgment in favor of plaintiff J., dissents.

entered upon a verdict and an order denying a motion for a new trial in an action to

recover for an alleged breach of contract. Selah In re ASHHEIM'S ESTATE. (Court of B. Strong and A. A. Spear, for appellant. LivAppeals of New York. June 21, 1906.) Ap- ingston Smith, for respondent. peal by permission from an order of the Appel- PER CURIAM. Judgment affirmed, with late Division of the Supreme Court in the costs. First Judicial Department (111 App. Div. 176,

CULLEN, C. J., and EDWARD T. BART. 97 N. Y. Supp. 607), entered February 14, 1906,

LETT, HAIGHT, HISCOCK, and CHASE, which affirmed an order of the New York

JJ., concur. GRAY and O'BRIEN, JJ., abCounty Surrogate's Court directing the appel

sent. lant herein to file his account as executor of Solomon W. Ashheim, deceased. The following questions were certified: "First. Is an executor

BEERS v. GRANT et al. (Court of Appeals who has duly qualified and received assets of

of New York. May 25, 1906.) No opinion. his testator's estate, for which he has never

Motion to amend remittitur denied. See 185 accounted, so far a trustee as to bring him

N. Y. - 77 N. E. 1181. within the rule that the statute of limitations does not commence to run in favor of a trustee, against one otherwise entitled to an account,

BILLINGHAM, Respondent, v. E. P. GLEAuntil such trustee has repudiated his trust? SON MFG. CO., Appellant. (Court of Appeals Second Where a third party is created by

of New York. May 25, 1906.). Appeal from a will a trustee for a term not yet expired of

judgment of the Appellate Division of the personal property, of which, as assets of his

Supreme Court in the First Judicial Departtestator's estate, the executor of such will has ment (101 App. Div. 476, 91 N. Y. Supp. 1046), taken possession, but has not delivered the same

entered February 24, 1905, affirming a judgto the trustee or accounted therefor, is the ment in favor of plaintiff entered upon a lapse of over 20 years from the issuance of

decision of the court on trial at Special Term letters testamentary a bar to a proceeding to in an action by the legatee of a stockholder compel such executor to account, by one in- to have a dividend certificate previously issued terested in said trust as a contingent remainder- by defendant, and payable at its pleasure, deman, not yet entitled to receive any benefit clared presently payable, and to recover the therefrom?" Sol. A. Cohn, for appellant. John amount thereof. Roderick Robinson, for appelDe Witt Warner, for respondents.

lant. Oscar Wagner, for respondent. PER CURIAM. Order affirmed, with costs, PER CURIAM. Judgment affirmed, with an opinion below. First question certified an

costs. swered in the affirmative; second in the nega- CULLEN, C. J., and O'BRIEN, HAIGHT, tive.

VANN, WERNER, and HISCOCK, JJ., conCULLEN, C. J., and GRAY, O'BRIEN,

cur. WILLARD BARTLETT, J., not sitting. EDWARD T. BARTLETT, WERNER, HISCOCK, and CHASE, JJ., concur.

BILLINGHAM, Respondent, v. E. P. GLEA

SON MFG. CO., Appellant. (Court of Appeals BACHMAN, Respondent, v. HARRINGTON, of New York. 'June 12, 1906.) No opinion. Appellant. (Court of Appeals of New York. Motion to amend remittitur denied, with $10 May 25, 1906.) No opinion. Motion for re- costs. See 185 N. Y. - supra. argument denied, with $10 costs. See 184 N. Y. 458, 77 N. E. 657.

BLUM, Appellant, v.

V. WHITNEY et al.,

Respondents. (Court of Appeals of New York. BARNES, Respondent, V. NEW YORK June 21, 1906.) No opinion. Motion for reELECTRIC VEHICLE TRANSP. CO., Ap- argument denied, with $10 costs. See 185 N. pellant. (Court of Appeals of New York. June Y. 232, 77 N. E. 1159. 5, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (103 App. Div. 609, BLUN, Respondent, v. MAYER et al., Appel93 N. Y. Supp. 1120), entered April 19, 1905, lants (two cases). (Court of Appeals of New affirming a judgment in favor of plaintiff en- York. Oct. 16, 1906.) Motion to dismiss aptered upon a verdict and an order denying a peals from judgments of the Appellate Division

for the motion. William H. Page, Jr., and Henry B. Twombly, opposed.

CHAUVET, Respondent, v. IVES, Appellant. PER CURIAM. Motion granted and appeals

(Court of Appeals of New York, June 5. dismissed, with costs and $10 costs of motion. 1906.) Appeal from a judgment of the Ap

pellate Division of the Supreme Court in the

First Judicial Department (104 App. Div. 303, BURKE, Respondent, v. BAKER et al., Ap- 93 N. Y. Supp. 744), entered May 16, 1905, uppellants. Court of Appeals of New York. June on an order reversing a judgment in favor of 12, 1906.) Motion to dismiss an appeal from defendant, entered upon a dismissal of the coma judgment of the Appellate Division of the plaint by the court at a Trial Term without a Supreme Court in the Second Judicial Depart-jury, and directing judgment in favor of plainment (111 App. Div. 422, 97 N. Y. Supp. 768), tiff in an action to enforce an agreement enterentered March 6, 1906, affirming a judgment ed into by the plaintiff and defendant as benein favor of plaintiff entered upon a decision of ficiaries under the will of Francis W. Lasak, the court on trial at Special Term in an ac- deceased. Algernon S. Norton and Henry W. tion to recover from the city of New York Bookstaver, for appellant. Stillman F. Kneesalaries of members of the fire department land, for respondent. thereof, alleged to have been assigned to plain- PER CURIAM. Judgment affirmed, with

, tiff's testator. The motion was made upon the costs. grounds that the appeal was taken in viola- CULLEN, C. J., and GRAY, HAIGHT, tion of section 191 of the Code of Civil Pro

WERNER, and HISCOCK, JJ., concur. O'cedure, and that no questions of law are

BRIEN, J., absent. EDWARD T. BARTraised thereby; the exceptions being frivolous. LETT, J., not voting. Thomas F. Magner, for the motion. Nelson Smith, opposed.

PER CURIAM. Motion denied, with $10 CHOLET, Appellant, v. CITY OF SYRAcosts.

CUSE, Respondent. (Court of Appeals of New
York. Oct. 2, 1906.) Appeal from an order of

the Appellate Division of the Supreme Court BUTLER et al., Respondents, v. SUPREME in the Fourth Judicial Department (111 App. COUNCIL A. L. H., Appellant. (Court of Ap

Div. 903, 96 N. Y. Supp. 1117), entered Janupeals of New York. Oct. 2, 1906.) Appeal ary 3, 1906, which reversed a judgment in favor from a judgment of the Appellate Division of of plaintiff entered upon a verdict and an order the Supreme Court in the Third Judicial De- denying a motion for a new trial, and granted partment (105 App. Div. 164, 93 N. Y. Supp. a new trial in an action to recover for the al1012) entered May 10, 1905, affirming a judg- leged negligent killing of plaintiff's intestate. ment in favor of plaintiff entered upon a de- Ray B. Smith, for appellant. Walter W. Macision of the court at a Trial Term in an ac- gee, Corp. Counsel (William Nottingham, of tion to recover upon a certificate of membership counsel), for respondent. in a fraternal benefit society. Henry A. Powell,

PER CURIAM. Order affirmed, and judgfor appellant. Maurice E. Page, for respondent. ment absolute ordered against appellant on the

PER CURIAM. Judgment affirmed, with stipulation, with costs in all courts. costs, on opinion below.

CULLEN, C. J., and VANN, WERNER, and CULLEN, C. J., and GRAY, EDWARD T. CHASE, JJ., concur. O'BRIEN, J., absent. BARTLETT, VANN, WERNER, and WIL- WILLARD BARTLETT, J., dissents. HISLARD BARTLETT, JJ., concur. CHASE, J., COCK, J., not sitting. not sitting.

In re CLINTON AVE. IN CITY OF NEW YORK. (Court of Appeals of New York. June 19, 1906.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (106 App. Div. 31, 94 N. Y. Supp. 146), entered June 9, 1905, which affirmed an order of Special Term confirming the report of commissioners of estimate and assessment in the above-entitled proceeding. William C. Beecher and Richard B. Kelly, for appellant. J. Hampden Dougherty, Alvin R. Johnson, Jesse Johnson, and John P. Dunn, for respondents.

PER CURIAM. Order affirmed, with costs.

CULLEN, C. J., and GRAY, O'BRIEN, EDWARD T. BARTLETT, WERNER, HISCOCK, and CHASE, JJ., concur.

CAMDEN IRON WORKS v. CITY OF NEW YORK et al. (Court of Appeals of New York. June 21, 1906.) Appeal from Supreme Court, Appellate Division, First Department. Action by the Camden Iron Works against William H. Masterson and others. From a judgment of the Appellate Division (93 N. Y. Supp. 754, 104 App. Div. 272), affirming a judgment for defendant, plaintiff appeals. Judgment of Trial Term modified and affirmed. Henry Galbraith Ward, for appellant. L. Laflin Kellogg, for respondents.

PER CURIAM. Judgment of Trial Term modified by deducting therefrom the sum of $1,803.26, being the interest allowed upon the balance of respondents' counterclaim over and above the amount of appellant's claim from May 19, 1902, to June 16, 1904, the date of the decision herein, and, as modified, atlirmed, without costs to either party.

CULLEN, C. J., and GRAY, HAIGHT, WERNER, and HISCOCK, JJ., concur. EDWARD T. BARTLETT, J., votes for reversal in memorandum. O'BRIEN, J., absent.

EDWARD T. BARTLETT, J. (dissenting). I agree with the dissenting opinion of PATTERSON, J., in the Appellate Division, concurred in by Presiding Justice VAN BRUNT, to the effect that there was reversible error in the rulings of the trial judge when the inspectors for the city of New York were under examination by the counsel for the plaintiff. The most important point in the plaintiff's case was to establish, if possible, that these inspectors for the city were biased, and not acting in good faith.

CODY, Respondent, v. IADCOX, Appellant. (Court of Appeals of New York. Oct. 2, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (109 App. Div. 912, 95 N. Y. Supp. 1122), entered December 7. 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in an action to recover on a promissory note. Charles H. Searle, for appellant. P. C. J. De Angelis, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J. and VANN, WERNER, WILLARD BARTLETT. and CHASE, JJ.. concur. O'BRIEN, J., absent. HISCOCK, J., not sitting

COUSINO, Respondent, v.

WATER- DOON, Respondent, v. CASTLETON WATOWN PAPER_CO., Appellant. (Court of TER SUPPLY CO., Appellant. (Court of ApAppeals of New York. Oct. 2, 1906.) Appeal peals of New York. June 12, 1906.) Appeal from a judgment of the Appellate Division of from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial De- the Supreme Court in the First Judicial Department (105 App. Div. 625, 93 N. Y. Supp. partment (103 App. Div. 597, 92 N. Y. Supp. 1124), entered May 12, 1905, affirming a judg- 1121), entered April 5, 1905, affirming a judgment in favor of plaintiff entered upon a ver- ment in favor of plaintiff entered upon a verdict and an order denying a motion for a new dict and an order denying a motion for a new trial in an action to recover for personal in- trial in an action to recover for an alleged breach juries alleged to have been occasioned through of contract. Henry W. Wiggins, for appellant. defendant's negligence. Thomas Burns, for ap- Herbert A. Heyn, for respondent. pellant. George B. MacComber, for respondent. PER CURIAM. Judgment affirmed with

PÈR CURIAM. Judgment affirmed, with costs. costs.

CULLEN, C. J., and GRAY, EDWARD T. CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, WERNER, and HISBARTLETT, VANN, WERNER, WILLARD COCK, JJ., concur. O'BRIEN, J., absent. BARTLETT, and CHASE, JJ., concur.

DUBUC, Respondent, v. LAZELL, DALLEY CULLIN, Appellant, V. ALVORD, Sheriff, & CO., Appellant. (Court of Appeals of New Respondent, et al. (Court of Appeals of New York. May 25, 1906.) Appeal from a judg

a York. June 12, 1906.) Motion to dismiss an ment of the Appellate Division of the Supreme appeal from a judgment of the Appellate Divi- Court in the First Judicial Department (102 sion of the Supreme Court in the Third Judicial App. Div. 614, 92 N. Y. Supp. 1121), entered Department (109 App. Div. 918, 96 N. Y. February 21, 1905, affirming a judgment in Supp. 494), entered January 13, 1906, affirm- favor of plaintiff and an order denying a motion ing a judgment in favor of defendant entered for a new trial in an action to recover for an upon the report of a referee in an action of

alleged breach of contract of employment. Ausreplevin. The motion was made on the grounds

ten G. Fox and George H. Fletcher, for appelthat the Court of Appeals had no jurisdiction

lant. Lyman E. Warren and Alfred E. Merrill, to hear the appeal, it being from an unanimous

for respondent. affirmance by the Appellate Division, and per- PER CURIAM. Judgment affirmed, with mission to appeal not having been obtained; costs. that the exceptions were frivolous, and no ques- CULLEN, C. J., and O'BRIEN, HAIGHT, tion of law was presented for review. John VANN, WERNER, WILLARD BARTLETT, L. Crandell, for the motion. J. Frank Chace, and HISCOCK, JJ., concur. opposed.

PER CURIAM. Motion denied, with $10 costs.

EBLING BREWING CO., Respondent, V. NEW YORK CITY INTERBOROUGH RY.

CO., Appellant. (Court of Appeals of New DAVIS, Appellant, V. BROADALBIN

York. Oct. 9, 1906.) Appeal from an order of KNITTING CO., Respondent. (Court of Ap- the Appellate Division of the Supreme Court in peals of New York. June 21, 1906.) Appeal

the First Judicial Department (112 App. Div. from an order of the Appellate Division of the 912, 99 N. Y. Supp. 1138), entered April 6, Supreme Court in the Third Judicial Depart

1906, which affirmed an order of Special Term ment (90_App. Div. 567, 86 N. Y. Supp. 127), granting a motion for the continuance of an entered February 17, 1904, which reversed a injunction pendente lite. George W. Wicker

sham and Noel Gale, for appellant. judgment in favor of plaintiff entered upon a

Harold verdict and an order denying a motion for a

Nathan, for respondent. new trial, and granted a new trial in an action PER CURIAM. Appeal dismissed, without to recover for personal injuries alleged to have costs. been caused by defendant's negligence. Henry CULLEN, C. J., and EDWARD T. BARTV. Borst and Florence J. Sullivan, for appel- LETT, HAIGHT, VANN, WERNER, WILlant. Lewis E. Carr and Edward W. Douglas, LARD BARTLETT, and CHASE, JJ., concur.. for respondent.

PER CURIAM. Order affirmed, and judgment absolute ordered against appellant on the stip

EDWARDS, Respondent, v. WATERMAN, ulation, with costs in all the courts.

Appellant. (Court of Appeals of New York. CULLEN, C. J., and GRAY, EDWARD T.

May 25, 1906.) Appeal from a judgment of the

Appellate Division of the Supreme Court in BARTLETT, WERNER, and HISCOCK, JJ.,

the Second Judicial Department (102 App. Div. concur.. O'BRIEN, J., absent. CHASE, J.,

624, 92 N. Y. Supp. 1121), entered March 8, not sitting

1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying

a motion for a new trial in an action to reDOHSE, Respondent, v. VILLAGE OF BA

cover a balance alleged to be due upon a buildTAVIA, Appellant. (Court of Appeals of

ing contract. Herbert Goldmark and George New York. June 21, 1906.) Appeal from a C. Coffin, for appellant. Harry W. Moore, for judgment of the Appellate Division of the Su- respondent. preme Court in the Fourth Judicial Department

PER CURIAM. Judgment affirmed, with (100 App. Div. 512, 91 N. Y. Supp. 1093),

costs. entered January 23, 1905, affirming a judg

CULLEN, C. J., and O'BRIEN, HAIGHT, ment in favor of plaintiff entered upon a verdict and an order denying a motion for a new

VANN, WERNER, and HISCOCK, JJ., con

cur. WILLARD BARTLETT, J., not sitting. trial. Frank S. Wood, for appellant. George W. Watson, for respondent. PER CURIAM. Judgment affirmed, with

EIGHTH WARD BANK OF BROOKLYN, costs.

Respondent, v. MCLOUGHLIN et al., AppelCULLEN. C. J.. and EDWARD T. BART

lants. (Court of Appeals of New York. Oct. 9, LETT, VANN, WERNER, WILLARD BART- 1906.) Motion to dismiss an appeal from a I,ETT, and CHASE, JJ., concur. GRAY, J., judgment of the Appellate Division of the Su-. absent.

preme Court in the Second Judicial Department