PER CURIAM. Judgment affirmed, with costs.

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

tion in view of the principle of comity.” Joseph H. Choate and John A. Garver, for appellant. Clarence J. Stearn, for respondent.

PER CURIAM. Order affirmed, with costs, and questions certified answered, to the effect that the Supreme Court has jurisdiction of this action, and that there is nothing in the principle of comity that prohibits the exercise of that jurisdiction, on opinion in Richman v. Consolidated Gas Co., 186 N. Y. — 78 N. E. 871.

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

GILSEY et al., Respondents, v. KEEN et al., Appellants (two cases). (Court of Appeals of New York. 'June 5, 1906.) Appeal in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (104 App. Div. 427, 93 N. Y. Supp. 783; 104 App. Div. 629, 93 N. Y. Supp. 787), entered May 17, 1905, affirming a judgment in favor of plaintiffs entered upon a verdict directed by the court, and an order denying a motion for a new trial in actions to recover amounts due for rent of leased premises. Grant C. Fox, for appellants. Sol. Kohn, for respondents.

PER CURIAM. Judgments affirmed, with costs.

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

GUEST, Respondent, V. GUEST, Appellani. (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. 630, 93 N. Y. Supp. 1133), entered May 12, 1905, affirming a judg. ment in favor of plaintiff entered upon a verdict. and an order denying a motion for a new trial in an action to recover money alleged to have been loaned by plaintiff to defendant. William P. Maloney, for appellant. Lyman E. Warren, 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.

GORHAM, Respondent, v. ROGERS et al., Appellants. (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 (103 App. Div. 595, 92 N. Y. Supp. 1126), entered March 17, 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. Martin Conboy, for appellants. Howard Taylor, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

HAACK, Respondent, V. BROOKLYN LA. BOR LYCEUM ASS'N, Appellant (two cases). (Court of Appeals of New York. June 12, 1906.) Motion to dismiss an appeal by permission in each of the above-entitled actions from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (112 App. Div. - 97 N. Y. Supp. 1136),

-, entered March 22, 1906, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial in actions-one to recover for loss of services, and the other to recover for personal injuries occasioned by defendant's alleged negligence. The motions were made upon the grounds that no questions were involved which could be reviewed by the Court of Appeals. George H. Follwell, for the motions. Percival S. Menken, opposed.

PER CURIAM. Motion in each case granted, and appeal dismissed, with costs and $10 costs of motion.

GROARKE, Appellant, V. LAEMMLE, 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 (91 App. Div. 614, 86 N. Y. Supp. 1137), entered March 8, 1904, 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 personal injuries alleged to have been sustained through defendant's negligence. Charles Green Smith and Lawrence Atterbury, for appellant. De Lagnel Berier, for respondent.

PER CURIAM. Judgment reversed, and new trial granted, costs to abide event, on the ground that defendant's negligence presented a question of fact for the jury.

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

HEALY, Respondent, V. MALCOLM, 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 (110 App. Div. 888, 96 N. Y. Supp. 1128) entered December 28, 1905. affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover for an alleged breach of contract. Edward W. S. Johnston and Edward P. Orrel}, for appellant. L. Laflin Kellogg and Alfred C. Petté, for respondent.

PER CURIAM. Judgment affirmed; with costs.

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

GROSSMAN, Respondent, F. CONSOLIDATED GASCO. OF NEW YORK, Appellant. (Court of Appeals of New York. Oct. 16, 1906.) Appeal by permission from an order of the Appellate Division of the Supreme Court in the First Judicial Department (114 App. Div. - 100 N. Y. Supp. 100), entered June

26, 1906, which affirmed an order of Special Term granting a motion for an injunction pendente lite herein. The following questions

HEIM, Respondent, v. UNION RY. CO. OF NEW YORK CITY, 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 (101 App. Div. 607, 91 N. Y. Supp. 1097), entered January 13, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a

preme Court has jurisdiction to entertain this action. (2) Whether or not, if the Supreme Court did have jurisdiction to entertain this action, it ought to have entertained jurisdic

new trial in an action to recover for the death of plaintiff's intestate, alleged to have been caused by defendant's negligence. Herbert C. Smyth and Henry A. Robinson, for appellant. Arnold C. Weil and Robert Weil, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and O'BRIEN, HAIGHT, VANN, WERNER, and HISCOCK, JJ., con

WILLARD BARTLETT, J., not sitting.

HILTEBRANT, Respondent, v. BOICE, 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 Third Judicial Department (105 App. Div. 636, 93 N. Y. Supp. 1131), entered May 5, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action for money had and received. Howard Chipp, for appellant. James Jenkins, for respondent.

POR CURIAM. Judgment affirmed, with costs.

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

HUDSON & M. R. CO., Respondent, v. WENDEL, Appellant, et al. (Court of Appeals of New York. Oct. 16, 1906.) Appeal by permission from an order of the Appellate Division of the Supreme Court in the First Judicial Department (112 App. Div. 822, 98 N. Y. Supp. 341), entered April 17, 1906, which affirmed an order of Special Term denying a motion to dismiss a proceeding to acquire certain property by condemnation, and referred the issues raised by the petition and the answers thereto. The following questions were certified: "(1) Can the petitioner, respondent, upon the facts alleged in the petition herein, maintain a proceeding to acquire by_condemnation the property of the appellant, Josephine J. S. Wendel, in said petition described? (2) Should the preliminary motion made by the defendant Josephine J. S. Wendel to dismiss this proceeding as to her, which said motion is recited in the order of the Special Term of the Supreme Court dated February 6, 1906, and entered in the office of the clerk of the county of New York on the 7th day of February, 1906, have been granted ?" Lewis L. Delafield, for appellant. F. B. Jennings, for respondent.

PER CURIAM. Order affirmed, with costs; first question certified answered in the affirmative; second question certified answered in the negative.

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

HOOD, Appellant, v. LEHIGH VALLEY R. CO., Respondent. (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. 418, 96 N. Y. Supp. 431), entered November 27. 1905. affirming a judgment in favor of defendant entered upon a verdict directed by the court, and an order denying a motion for a new trial in an action to recover for the alleged negligent killing of plaintiff's intestate. William E. Prentice, for appellant. James McCormick Mitchell and Chester Odiorne Swain, 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.

JOHNSON et al., Appellants, V. ATLAS IMP. CO. et. al., Respondents. (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 (102 App. Div. 560, 92 N. Y. Supp. 950), entered April 14, 1905, affirming a judgment in favor of defendants entered upon a decision of the court on trial at Special Term in an action to recover upon certain contractual obligations. Samuel B. Clarke and Francis G. Caffey, for appellants. Augustus Van Wyck and Charles W. Church, Jr., for respondents.

PER CURIAM. Judgment affirmed, with costs.

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

HOUSE et al., Respondents, v. CARR, Appellant. (Court of Appeals of New York. Oct. 9, 1906.) No opinion. Motion

opinion. Motion for reargument denied, with $10 costs. See 185 N. Y. 453, 78 N. E. 171.

HOWELL, Respondent, V. JOHN HANCOCK MUT. LIFE INS. CO. OF BOSTON, Appellant. (Court of Appeals of New York. Oct. 26, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (107 App. Div. 200, 95 N. Y. Supp. 87), entered August 21, 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 policy of life insurance. William De Graff, for appellant. Elbridge L. Adams, for respondent,

PER CURIAM. Judgment affirmed, with costs, on the ground that no sufficient exception was taken to the submission to the jury of the question as to whether the time in which to pay the premiurn had been extended.

CULLEN, C. J., and EDWARD T. BARTLETT, HAIGHT, VANN, and CHASE, JJ., concur. GRAY, J., absent. HISCOCK, J., not sitting.

78 N.E.-70

KAY, Respondent, v. MONROE, Water Supply Com'r, et al., Appellants. (Court of Appeals of New York. June 12, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (109 App. Div. 913, 95 N. 'Y. Supp. 1138), entered December 12, 1905, affirming a judgment of Special Term enjoining the defendant commissioner from carrying out a contract for the purchase of water meters. John J. Delany, Corp. Counsel, Alfred_J. Talley, and Frederick St. John (James D. Bell, of counsel), for appellants. Walter Thorn, 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.

KEARNEY, Appellant, v. COLEMAN et al., Respondents. (Court of Appeals of New York. June 21, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (105 App. Div. 638, 94 N. Y. Supp. 206), entered June 29, 1905, affirming a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover an amount alleged to be due upon a contract. Edward P. Mowton and John Mulholland, for appellant. David McClure for respondents.

PER CURIAM. Judgment affirmed, with costs.

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

App. Div. 625, 93 N. Y. Supp. 1139), entered May 11, 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 received through defendant's negligence. Francis K. Purcell, for appellant. Edgar V. Bloodough, 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.

KENSINGTON NAT. BANK, Respondent, v. HENRY, Appellant. (Court of Appeals of New York. June 12, 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. 1136), entered May 6, 1905, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover upon a promissory note dated and made payable at New York, but actually made and delivered at Philadelphia. Gilbert W. Minor, for appellant. Daniel P. Hays and Joseph J. Corn, 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., absent.

MARSON, Respondent, v. CITY OF ROCH ESTER, Appellant. (Court of Appeals of New York. June 19, 1906.) Appeal_by permission from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (112 App. Div. - 97 N. Y. Supp. 881), entered March 16, 1906, which affirmed an order of Special Term referring questions of fact arising upon a motion to punish defendant for contempt. The following question was certified. "Can the city of Rochester, a municipal corporation, be punished in this action for a contempt of court?" William W. Webb, Corp. Counsel (B. B. Cunningham, of couns l), for appellant. Nelson E. Spencer, for respondent.

PER CURIAM. Order affirmed. with costs on opinion below; question certified answered in the affirmative.

CULLEN, C. J., and EDWARD T. BART LETT, WERNER, HISCOCK, and CHASE. JJ., concur. GRAY, J., in result. O'BRIEN, J., dissents.

KING et al., Respondents, V. GERMANAMERICAN BANK OF BUFFALO, Appellant. (Court of Appeals of New York. Oct. 9, 1906.) Motion to dismiss an appeal from a judgment of the Appellant Division of the Supreme Court in the Fourth Judicial Department (102 App. Div. 619, 92 N. Y. Supp. 1131), entered upon an order made March 1, 1905, affirming a judgment in favor of plaintiffs entered upon the report of a referee. The motion was made upon the grounds that the appeal was frivolous, no questions of merit being involved therein. Moses Shire, for the motion. William C. Carroll, opposed.

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

MAY, Respondent, V. JONES et al., Appellants. (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 (102 App. Div. 617, 92 N. Y. Supp. 1134), entered February 15, 1905. affirming a judgment in favor of plaintiff entered upon a verdict directed by the court, and an order denying a motion for a new trial in an action to recover a sum theretofore paid by plaintiff upon a contract whereby defendants agreed to sell a certain leasehold estate, together with damages for alleged fraudulent representa tions. Edwin Countryman, for appellants. Ira Leo Bamberger and Sidney Lowenthal, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

KNICKERBOCKER TRUST CO. V. ONEONTA, C. & R. S. RY. CO. et al. (Court of Appeals of New York. Oct. 9, 1906.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (111 App. Div. 812, 97 N. Y. Supp. 673), entered June 7, 1906, which affirmed an order of Special Term granting a motion for leave to intervene in the above-entitled proceeding. The motion was made on the grounds that the order appealed from was not a final order in a special proceeding, but was discretionary, and the Court of Appeals had therefore no jurisdiction to entertain the appeal. Charles E. Hotchkiss, for the motion.

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

MAYER, Respondent, v. HEINEMAN, 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 (105 App. Div. 612, 94 N. Y. Supp. 1153), entered June 16, 1905, affirming a judgment in favor of plaintiff entered upon å verdict and an order denying a motion for a new trial in an action to recover for an alleged breach of contract. Jesse S. Epstein, for appellant. Melvin G. Palliser and Hector M. Hitchings, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

MALDOON, Respondent, V. JEFFERSON POWER 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

lany, Corp. Counsel (Theodore Connoly and Royal E. T. Riggs, of counsel), for respondents.

PER CURIAM. Order affirmed, with costs; questions certified answered in the negative.

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

MEAD, Respondent, v. HAMMOND, Appellant, 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 Second Judicial Department (107 App. Div. 575. 95 N. Y. Supp. 241), entered December 9, 1905, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action for the foreclosure of certain mortgages. Nelson Smith, for appellant. George B. Lester and Charles S. Yawger, for respondent.

PER CURIAM. Judgment affirmed, with costs, on opinion below.

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

MOREHOUSE, Respondent, v. BROOKLYN HEIGHTS R. CO., Appellant, et al. (Court of Appeals of New York. Oct. 9, 1906.) No opinion. Motion for reargument denied, with $10 costs. See 185 N. Y. 520, 78 N. E. 179.

MEEHAN, Respondent, V. ATLAS SAFE MOVING & MACHINERY TRUCKAGE 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. 1139), entered May 1, 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 death of plaintiff's intestate, alleged to have been occasioned through defendant's negligence. George Gordon Battle and Frederick E. Fishel, for appellant. Herbert C. Smyth, Millard F. Tompkins, and P. H. Delehanty, 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.

MURPHY, Respondent, V. JOHN HANCOCK MUT. LIFE INS. 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 Second Judicial Department (106 App. Div. 611, 94 N. Y. Supp. 1157), entered June 16, 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 upon a policy of life insurance. Leonard J. Langbein, for appellant. John F. Brennan, 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.

MEIGGS, Appellant, V. HOAGLAND, Respondent. (Court of Appeals of New York. May 25, 1906.) Appeal from a juägment of the Appellate Division of the Supreme Court in the Second Judicial Department (93 App. Div. 617, 87 N. Y. Supp. 1141), entered April 25, 1904, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term in an action to compel the defendant to accept title to certain real property which he had contracted to purchase. Henry L. Bogert, for appellant. James C. Bergen, 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.

MYER V. ABBETT 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 First Judicial Department (105 App. Div. 537, 94 N. Y. Supp. 238), entered June 27, 1905, modifying, and affirming as modified, a judgment in favor of respondents herein, entered upon the report of a referee in an action for an accounting. Edward W. S. Johnston and Edward P. Orrell, Jr., for appellants. Frederick H. Man. Henry H. Man, Leon Abbett, and Thomas J. Sanson, for respondents.

PER CURIAM. Judgment affirmed, with costs to each party respondent appearing by separate counsel and filing briefs.

CULLEN, C. J., and VANN, WERNER. WILLARD BARTLETT,

BARTLETT, HISCOCK, and CHASE, JJ., concur. O'BRIEN, J., absent.

METROPOLITAN MILK & CREAM CO., Appellant, v. CITY OF NEW YORK et al., Respondents. (Court of Appeals of New York. Oct. 16, 1906.) Appeal by permission from an order of the Appellate Division of the Supreme Court in the First Judicial Department (113 App. Div. 377, 98 N. Y. Supp. 894), entered June 25, 1906, which affirmed an interlocutory judgment of Special Term overruling a demurrer to an affirmative defense. The following questions were certified: "Is the separate defense contained in the answer of the defendant the city of New York, and numbered 8, insufficient in law upon the face thereof? Is the separate defense contained in the answer of the defendant the department of health of the city of New York, and numbered 8, insufficient in law upon the face thereof?” John J. Lenehan, for appellant. John J. De

NUNNALLY, Respondent, V. NEW YORKER STAATS-ZEITUNG, Appellant. (Court of Appeals of New York. Oct. 16, 1906.) Appeal by permission from an order of the Appellate Division of the Supreme Court in the First Judicial Department (111 App. Div. 482, 97 N. Y. Supp. 911), entered March 9, 1906. which affirmed an interlocutory judgment of Special Term overruling a demurrer to the com. plaint in an action for libel. The following question was certified, "Does the complaint state facts sufficient to constitute a cause of action ?” William J. Amend, John E. Donnelly, and Alfred J. Amend, for appellant. George H. D. Foster, for respondent.

PER CURIAM. Order affirmed, with costs, on opinion of Patterson, J., below. Question certified answered in the affirmative.

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