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New York City Charter, Laws 1901, p. 129, c. 466, § 302, providing that no proceeding shall be brought for the reinstatement to the police force of any member unless it is instituted within four months after the decision or order sought to be reviewed, does not apply to a proceeding to restore to active duty a member of the police force retired on account of alleged physical incapacity.

2. APPEAL-REVIEW-DECISION OF INTERMEDIATE COURTS-QUESTION OF FACT.

On an application for mandamus, the claim that the relator was guilty of laches, and that he has waived any right to relief, presents questions of fact, the determination of which by the trial court, having been affirmed by the Appellate Division, cannot be reviewed by the Court of Appeals.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 4322, 4324.]

Appeal from Supreme Court, Appellate Division, Second Department.

Application by Henry Hurlbut for mandamus to Theodore A. Bingham, police commissioner of the city of New York. From an order of the Appellate Division, Second Department (100 N. Y. S. 1136, 113 App. Div. --), affirming an order granting a motion for a peremptory writ of mandamus to compel

the defendant to restore the relator to active duty on the police force of the city of New York, defendant appeals. Affirmed.

John J. Delany, Corp. Counsel (James D. Bell and Patrick E. Callahan, of counsel), for appellant. Alfred E. Sander, for respondent.

PER CURIAM. We are of the opinion that the limitation on the time to commence a proceeding, contained in section 302, New York City Charter, Laws 1901, p. 129, c. 466, does not apply to a proceeding to restore to active duty a member of the police force who has been retired on account of alleged physical incapacity. The claim that the relator was guilty of laches in commencing this proceeding, and that he has waived any right to relief herein, present questions of fact which, although they might have been determined otherwise, have been determined in the relator's favor by the court at Special Term, and such determination has been unanimously affirmed by the Appellate Division. We cannot review such questions of fact.

The order should be affirmed, with costs.

CULLEN, C. J., and EDWARD T. BARTLETT, HAIGHT, VANN, WERNER, WILLARD BARTLETT, and CHASE, JJ., concur.

Order affirmed,

MEMORANDUM DECISIONS.

1

ALDEN SPEARE'S SONS Co., Appellant, V. ALGER, Respondent. (Court of Appeals of New York. June 5, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (103 App. Div. 597, 92 N. Y. Supp. 1114), entered April 5, 1905, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term, and an order denying a motion for a new trial in an action to recover damages alleged to have been caused plaintiff through false representations made by defendant. William E. Warland, for appellant. George Lawyer, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

In re ASHHEIM'S ESTATE. (Court of (Court of Appeals of New York. June 21, 1906.) Appeal by permission from an order of the Appellate Division of the Supreme Court in the First Judicial Department (111 App. Div. 176, 97 N. Y. Supp. 607), entered February 14, 1906, which affirmed an order of the New York County Surrogate's Court directing the appellant herein to file his account as executor of Solomon W. Ashheim, deceased. The following questions were certified: "First. Is an executor who has duly qualified and received assets of his testator's estate, for which he has never accounted, so far a trustee as to bring him 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, until such trustee has repudiated his trust? Second. Where a third party is created by will a trustee for a term not yet expired of personal property, of which, as assets of his testator's estate, the executor of such will has taken possession, but has not delivered the same to the trustee or accounted therefor, is the lapse of over 20 years from the issuance of letters testamentary a bar to a proceeding to compel such executor to account, by one interested in said trust as a contingent remainderman, not yet entitled to receive any benefit therefrom?" Sol. A. Cohn, for appellant. John De Witt Warner, for respondents.

PER CURIAM. Order affirmed, with costs, an opinion below. First question certified answered in the affirmative; second in the negative.

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

BACHMAN, Respondent, v. HARRINGTON, Appellant. (Court of Appeals of New York. May 25, 1906.) No opinion. Motion for reargument denied, with $10 costs. See 184 N. Y. 458, 77 N. E. 657.

BARNES, Respondent, v. v. NEW YORK ELECTRIC VEHICLE TRANSP. CO., Appellant. (Court of Appeals of New York. June 5, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (103 App. Div. 609, 93 N. Y. Supp. 1120), entered April 19, 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 for personal injuries and injuries to property, alleged to have been occasioned through defendant's negligence. Eugene Lamb Richards, Jr., and Ralph G. Miller, for appellant. Julien T. Davies, Jr., Ward W. Pickard, and George W. McAdam, for respondent. PER CURIAM. Judgment affirmed, with costs.

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

BAYLES, Respondent, v. STRONG, Appellant. (Court of Appeals of New York. June 5, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (104 App. Div. 153, 93 N. Y. Supp. 346), entered May 8, 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 for an alleged breach of contract. Selah B. Strong and A. A. Spear, for appellant. Livingston Smith, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

sent.

BEERS v. GRANT et al. (Court of Appeals of New York. May 25, 1906.) No opinion. Motion to amend remittitur denied. See 185 N. Y. 77 N. E. 1181.

BILLINGHAM, Respondent, v. E. P. GLEASON MFG. CO., Appellant. (Court of Appeals of New York. May 25, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (101 App. Div. 476, 91 N. Y. Supp. 1046), entered February 24, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action by the legatee of a stockholder to have a dividend certificate previously issued by defendant, and payable at its pleasure, declared presently payable, and to recover the amount thereof. Roderick Robinson, for appellant. Oscar Wagner, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

BILLINGHAM, Respondent, v. E. P. GLEASON MFG. CO., Appellant. (Court of Appeals of New York. June 12, 1906.) No opinion. Motion to amend remittitur denied, with $10 costs. See 185 N. Y. -, supra.

BLUM, Appellant, v. WHITNEY et al., Respondents. (Court of Appeals of New York. June 21, 1906.) No opinion. Motion for reargument denied, with $10 costs. See 185 N. Y. 232, 77 N. E. 1159.

BLUN, Respondent, v. MAYER et al., Appellants (two cases). (Court of Appeals of New York. Oct. 16, 1906.) Motion to dismiss appeals from judgments of the Appellate Division

15, 1904, affirming an interlocutory and a final judgment entered upon the report of a reference in an action to settle the rights of the plaintiffs and the defendants as to certain assets of the Bradley Salt Company. P. M. French, for appellant. Horace McGuire, for respondents. PER CURIAM. Judgment affirmed, with costs.

of the Supreme Court in the First Judicial | 1117), entered upon an order made November Department (113 App. Div. 242, 99 N. Y. Supp. 22, 113 App. Div. 247, 99 N. Y. Supp. 25), entered May 20, 1906, modifying, and affirming as modified, judgments in favor of plaintiff entered upon reports of a referee. The motion was made upon the grounds that the Appellate Division had unanimously decided that there was evidence tending to sustain the findings of fact, and no questions of law were presented for review. Charles Edward Souther, for the motion. Louis Marshall, opposed.

PER CURIAM. Motion denied, with $10 costs.

BONTA, Respondent, v. GRIDLEY, Appellant, et al. (Court of Appeals of New York. June 21, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (97 App. Div. 643, 90 N. Y. Supp. 1089), entered November 10, 1904, which affirmed interlocutory and final judgments in favor of plaintiff entered upon decisions of the court at a Trial Term without a jury in an action to recover for an alleged breach of contract. C. A. Hitchcock, for appellant. Charles P. Ryan, for respondent. PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and EDWARD T. BARTLETT, WERNER, WILLARD BARTLETT, and CHASE, JJ., concur. GRAY, J., absent. VANN, J., not voting.

BORNKESSEL, Appellant, v. METROPOLITAN ST. RY. CO., Respondent. (Court of Appeals of New York. May 25, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (96 App. Div. 625, 88 N. Y. Supp. 1093), entered October 18, 1905, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff's intestate, alleged to have been caused by the negligence of the defendant. John C. Robinson, for appellant. Joseph F. Daly, Bayard H. Ames, and Henry A. Robinson, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and O'BRIEN, HAIGHT, VANN, WERNER, WILLARD BARTLETT, and HISCOCK, JJ., concur.

BOWERS v. BARSE et al. (Court of Appeals of New York. June 12, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (96 App. Div. 636, 89 N. Y. Supp. 1100), entered July 26, 1904, affirming a judgment in favor of defendant (respondent) entered upon a dismissal of the complaint as to him by the court on trial at Special Term in an action to recover on a contract guarantying payment of dividends upon certain stock of which plaintiff was the owner of a number of shares. C. Walter Artz, Frederick W. Frost, and Frank Sullivan Smith, for appellant. J. Arthur Corbin, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, WERNER, and HISCOCK, JJ., concur. O'BRIEN, J., absent. HAIGHT, J., not voting.

BRADLEY et al. v. BRIDGE et al. (Court of Appeals of New York. Oct. 2, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (101 App. Div. 611, 92 N. Y. Supp.

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

BRATT, Respondent, v. GIBBS et al., Appellants. (Court of Appeals of New York. June 21, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (103 App. Div. 600, 92 N. Y. Supp. 1117), entered June 11, 1904, 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 for services. J. B. McCormick, for appellants. Fred A. Bratt, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

BRINCK, Respondent, v. NORTH GERMAN LLOYD S. S. CO., Appellant. (Court of Appeals of New York. Oct. 9, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (104 App. Div. 619, 93 N. Y. Supp. 1122), entered May 4, 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 for the loss of baggage through the alleged_negligence of defendant. Joseph Larocque, Jr., for appellant. Lyman W. Redington, for respondent.

PER CURIAM. Judgment reversed, new trial granted, costs to abide event, unless plaintiff stipulates to reduce her recovery to the sum of $50, with interest from the date of the loss, with costs, in which event the judgment, as reduced, is affirmed, without costs of this appeal, on opinion in Tewes v. North German Lloyd Steamship Company, 186 N. Y. -, 78 N. E. 864.

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

BROWN et al., Appellants, v. McKIE, Tax Collector, Respondent. (Court of Appeals of New York. June 21, 1906.) No opinion. Motion for reargument denied, with $10 costs. See 185 N. Y. 303, 78 N. E. 64.

BROWN et al., Respondents, v. RETSOF MINING CO., Appellant (three cases). (Court of Appeals of New York. June 21, 1906.) Motion to dismiss appeals from judgments of the Appellate Division of the Supreme Court in the Second Judicial Department (109 App. Div. 150, 95 N. Y. Supp. 815; 112 App. Div. -, 97 N. Y. Supp. 1130), entered in actions Nos. 1 and 2 on November 28, 1905, and in action No. 3 on March 9, 1906, which affirmed judgments in favor of plaintiffs entered upon decisions of the court at Trial Terms without juries in actions to recover on contracts. The motion was made upon the ground that the judgments are not appealable to the Court of Appeals, under subdivision 2 of section 191 of the Code of Civil Procedure. John A. Garver,

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

PER CURIAM. Motion granted and appeals dismissed, with costs and $10 costs of motion.

BURKE, Respondent, v. BAKER et al., Appellants. Court of Appeals of New York. June 12, 1906.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (111 App. Div. 422, 97 N. Y. Supp. 768), entered March 6, 1906, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to recover from the city of New York salaries of members of the fire department thereof, alleged to have been assigned to plaintiff's testator. The motion was made upon the grounds that the appeal was taken in violation of section 191 of the Code of Civil Procedure, and that no questions of law are raised thereby; the exceptions being frivolous. Thomas F. Magner, for the motion. Nelson Smith, opposed.

PER CURIAM. Motion denied, with $10 costs.

BUTLER et al., Respondents, v. SUPREME COUNCIL A. L. H., Appellant. (Court of Appeals of New York. Oct. 2, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (105 App. Div. 164, 93 N. Y. Supp. 1012) entered May 10, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term in an action to recover upon a certificate of membership in a fraternal benefit society. Henry A. Powell, for appellant. Maurice E. Page, for respondent. PER CURIAM. Judgment affirmed, with costs, on opinion below.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, VANN, WERNER, and WILLARD BARTLETT, JJ., concur. CHASE, J., not sitting.

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, affirmed, without costs to either party.

CULLEN, C. J., and GRAY, HAIGHT, WERNER, and HISCOCK, JJ., concur. WARD 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.

CHAUVET, Respondent, v. IVES, Appellant. (Court of Appeals of New York, June 5. 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (104 App. Div. 303, 93 N. Y. Supp. 744), entered May 16, 1905, upon an order reversing a judgment in favor of defendant, entered upon a dismissal of the complaint by the court at a Trial Term without a jury, and directing judgment in favor of plaintiff in an action to enforce an agreement entered into by the plaintiff and defendant as beneficiaries under the will of Francis W. Lasak, deceased. Algernon S. Norton and Henry W. Bookstaver, for appellant. Stillman F. Kneeland, for respondent.

PER CURIAM. Judgment, affirmed, with costs.

CULLEN, C. J., and GRAY, HAIGHT, WERNER, and HISCOCK, JJ., concur. O'BRIEN, J., absent. EDWARD T. BARTLETT, J., not voting.

CHOLET, Appellant, v. CITY OF SYRACUSE, Respondent. (Court of Appeals of New York. Oct. 2, 1906.) Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (111 App. Div. 903, 96 N. Y. Supp. 1117), entered January 3, 1906, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial, and granted a new trial in an action to recover for the alleged negligent killing of plaintiff's intestate. Ray B. Smith, for appellant. Walter W. Magee, Corp. Counsel (William Nottingham, of counsel), for respondent.

PER CURIAM. Order affirmed, and judgment absolute ordered against appellant on the stipulation, with costs in all courts.

CULLEN, C. J., and VANN, WERNER, and CHASE, JJ., concur. O'BRIEN, J., absent. WILLARD BARTLETT, J., dissents. HISCOCK, J., 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.

CODY, Respondent, v. HADCOX, 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. 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. WATERTOWN PAPER CO., 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 (105 App. Div. 625, 93 N. Y. Supp. 1124), entered May 12, 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 for personal injuries alleged to have been occasioned through defendant's negligence. Thomas Burns, for appellant. George B. MacComber, for respondent. PER CURIAM. Judgment affirmed, with

costs.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, VANN, WERNER, WILLARD BARTLETT, and CHASE, JJ., concur.

CULLIN, Appellant, v. ALVORD, Sheriff, Respondent, et al. (Court of Appeals of New York. June 12, 1906.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (109 App. Div. 918, 96 N. Y. Supp. 494), entered January 13, 1906, affirming a judgment in favor of defendant entered upon the report of a referee in an action of replevin. The motion was made on the grounds that the Court of Appeals had no jurisdiction to hear the appeal, it being from an unanimous affirmance by the Appellate Division, and permission to appeal not having been obtained; that the exceptions were frivolous, and no question of law was presented for review. John L. Crandell, for the motion. J. Frank Chace, opposed.

PER CURIAM. Motion denied, with $10 costs.

BROADALBIN

DAVIS, Appellant, v. KNITTING CO., Respondent. (Court of Appeals of New York. June 21, 1906.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (90 App. Div. 567, 86 N. Y. Supp. 127), entered February 17, 1904, which reversed a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial, and granted a new trial in an action to recover for personal injuries alleged to have been caused by defendant's negligence. Henry V. Borst and Florence J. Sullivan, for appellant. Lewis E. Carr and Edward W. Douglas, for respondent.

PER CURIAM. Order affirmed, and judgment absolute ordered against appellant on the stipulation, with costs in all the courts.

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

DOHSE, Respondent, v. VILLAGE OF BATAVIA, Appellant. (Court of Appeals of New York. June 21, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (100 App. Div. 512, 91 N. Y. Supp. 1093), entered January 23, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial. Frank S. Wood, for appellant. George W. Watson, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J.. and EDWARD T. BARTLETT, VANN, WERNER, WILLARD BARTLETT, and CHASE, JJ., concur. GRAY, J., absent.

DOON, Respondent, v. CASTLETON WATER SUPPLY CO., Appellant. (Court of Appeals of New York. June 12, 1906.) Appeal from a judgment of the Appellate Division_of the Supreme Court in the First Judicial Department (103 App. Div. 597, 92 N. Y. Supp. 1121), entered April 5, 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 for an alleged breach of contract. Henry W. Wiggins, for appellant. Herbert A. Heyn, for respondent.

PER CURIAM. Judgment affirmed with costs.

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

DUBUC, Respondent, v. LAZELL, DALLEY & CO., Appellant. (Court of Appeals of New York. May 25, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (102 App. Div. 614, 92 N. Y. Supp. 1121), entered February 21, 1905, affirming a judgment in favor of plaintiff and an order denying a motion for a new trial in an action to recover for an alleged breach of contract of employment. Austen G. Fox and George H. Fletcher, for appellant. Lyman E. Warren and Alfred E. Merrill, for respondent.

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EBLING BREWING CO., Respondent, v. NEW YORK CITY INTERBOROUGH RY. CO., Appellant. (Court of Appeals of New York. Oct. 9, 1906.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (112 App. Div. 912, 99 N. Y. Supp. 1138), entered April 6, 1906, which affirmed an order of Special Term granting a motion for the continuance of an injunction pendente lite. George W. Wickersham and Noel Gale, for appellant. Harold Nathan, for respondent.

PER CURIAM. Appeal dismissed, without costs.

CULLEN, C. J., and EDWARD T. BARTLETT, HAIGHT, VANN, WERNER, WILLARD BARTLETT, and CHASE, JJ., concur..

EDWARDS, Respondent, v. WATERMAN, Appellant. (Court of Appeals of New York. May 25, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (102 App. Div.. 624, 92 N. Y. Supp. 1121), entered March 8, 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 a balance alleged to be due upon a building contract. Herbert Goldmark and George C. Coffin, for appellant. Harry W. Moore, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and O'BRIEN, HAIGHT, VANN, WERNER, and HISCOCK, JJ., conWILLARD BARTLETT, J., not sitting.

cur.

EIGHTH WARD BANK OF BROOKLYN, Respondent, v. McLOUGHLIN et al., Appellants. (Court of Appeals of New York. Oct. 9, 1906.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department:

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