HAVIKIN, Appellant, v. THOMAS & BUCKLEY HOD ELEVATOR CO., Respondent. (Supreme Court, Appellate Term. April 24, 1905.) Appeal from Municipal Court, Borough of Manhattan, Seventh District. Action by John Havikin against the Thomas & Buckley Hod Elevator Company. From a Municipal Court judgment in favor of defendant, plaintiff appeals. Reversed. Nathan D. Stern, for appellant. L. P. Mingey, for respondent. SCOTT, P. J. In our opinion the plaintiff made out a prima facie case, which cast upon the defendant the necessity of explaining the circumstances, and showing that neither it nor its servants had been negligent. Guldseth v. Carlin, 19 App. Div. 588, 46 N. Y. Supp. 357. The judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. HEDORFER, Appellant, v. RUPPERT. Re spondent. (Supreme Court, Appellate Division, First Department. May 20, 1905.) Action ty Catherine Hedorfer, as administratrix, against Jacob Ruppert. J. Frankenheimer, for appellant. G. G. Battle, for respondent. costs. PER CURIAM. Judgment affirmed, with LAUGHLIN, J., dissents. ROPE WORKS, Appellant. (Supreme Court HEILIG, Respondent, V. LAWRENCE Appellate Division, Second Department. A 21, 1905.) Action by Lizzie Heilig, an infant. by Annie Barnes, her guardian ad litem, against the Lawrence Rope Works. No opinion. Jag ment and order unanimously affirmed, with costs. In re HENDERSON. (Supreme Court. Ap pellate Division, Second Department. Ap 21, 1905.) In the matter of the application of Harry W. Henderson for admission to the bar. Application granted. HENTZ, Appellant, v. HAVEMEYER et al. Respondents. (Supreme Court, Appellate Divi sion, Second Department. May 12, 1905) A tion by Henry Hentz against Henry 0. Have meyer and Charles H. Senff. No opinion. Metion for leave to appeal to the Court of Ay peals denied. ACKERMAN. (Supreme Court, Appellate Ivision, First Department. May 5, 1905) the matter of Hester street school site. In the matter of Ackerman. No opinion. Repor modified, as stated in memorandum, and, s modified, confirmed. Memorandum per curiam In re HESTER ST. SCHOOL SITE. Inn HIGBEE, Appellant, v. BROOKLYN HEIGHTS R. CO., Respondent. (Supreme Court, Appellate Division, Second Department April 28, 1905.) Action by A. Marie Higer against the Brooklyn Heights Railroad Com pany. No opinion. Judgment and order uran mously affirmed, with costs. HIGBEE, Appellant, v. BROOKLIN HEIGHTS R. CO., Respondent. (Supreme Court, Appellate Division, Second Departmen April 28, 1905.) Action by Joseph L. Higbee against the Brooklyn Heights Railroad Com pany. No opinion. Judgment and order usan mously affirmed, with costs. HILTEBRANT, Respondent, v. BOICE, AF pellant, et al. (Supreme Court, Appellate Di vision, Third Department. May 3, 1905.) Ae on by William Hiltebrant against Hewitt H. REMINGTON & SON PULP & PAPER pice, impleaded, etc. No opinion. Judgment animously affirmed, with costs. HIRSCHELL, Respondent, v. WOODRUFF, ppellant. (Supreme Court, Appellate Divion, Fourth Department. May 10, 1905.) Acon by Anna Hirschell, an infant, etc., against hn V. Woodruff. No opinion. Order afmed, with $10 costs and disbursements. HOFFMAN v. UNION DIME SAV. INST. upreme Court, Appellate Division, First Dertment. April 7, 1905.) Action by George offman against the Union Dime Savings Initution. No opinion. Motion denied. Action CO., Respondent, v. WATER COM'RS OF CITY OF WATERTOWN, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 3, 1905.) Action by the H. Remington & Son Pulp & Paper Company against the water commissioners of the city of Watertown. No opinion. Interlocutory judgment affirmed, with costs. HUBBARD, Respondent, v. MASON, Appellant. (Supreme Court, Appellate Division, Second Department. May 12, 1905.) Action by Guy H. Hubbard against Homer B. Mason. No opinion. Reargument ordered, and case set down for June 7, 1905. HOGAN, Appellant, v. TREFFINGER, Reondent. (Supreme Court, Appellate Division, (Supreme Court, Appellate Division, Second DeHUBER, Appellant, v. CLARK, Respondent. cond Department. April 21, 1905.) Johanna Hogan, an infant, by Thomas Ho-partment. May 5, 1905.) Action by Hugo F. n. her guardian ad litem, against Gottlob Huber against Bernard S. Clark, as temporary 'effinger. No opinion. Order affirmed, with administrator of James Swann, deceased, etc. No opinion. Order affirmed, with $10 costs and disbursements. 0 costs and disbursements. HOLTON, Respondent, v. MCCAFFERTY, opellant. (Supreme Court, Appellate Divion, First Department. April 7, 1905.) Acin by Morris L. Holton against Robert E. cCafferty. J. F. Harrison, for appellant. G. Frisbie, for respondent. No opinion. Judgent affirmed, with costs. In re HOME TRUST CO. (Supreme Court, opellate Division, Second Department. May 1905.) In the matter of the application of e Home Trust Company, etc. No opinion. otion granted. Reference ordered to John Ward, Esq. In re HORSTMAN LUMBER CO. (Sueme Court, Appellate Division, Third Dertment. May 3, 1905.) In the matter of the plication of a majority of the directors of the orstman Lumber Company for a voluntary solution. Charles F. Veeder, appellant. inion. Orders modified, by giving receiver edit for $1,884.88, and, as so modified, afmed, with costs of this appeal to the receivpayable out of the fund. No HUDSON RIVER WATER POWER CO. v. GLENS FALLS GAS & ELECTRIC CO. et al. (Supreme Court, Appellate Division, Third Department. May 3, 1905.) Action by the Hudson River Water Power Company against the Glens Falls Gas & Electric Company and others. No opinion. Motion denied, and case set down for Wednesday of third week, or on such day as counsel may agree. HUMES, Appellant, v. HAMMOND TYPEWRITER CO., Respondent. (Supreme Court, Appellate Division, First Department. April 7, 1905.) Action by William T. Humes against Hammond Typewriter Company. H. B. B. Stapler, for appellant. A. Brough, for respondent. PER CURIAM. Judgment affirmed, with costs. LAUGHLIN, J., dissents. HUTCHINSON, Respondent, v. BIEN, Appellant. (Supreme Court, Appellate Division, Second Department. May 5, 1905.) Action by David W. Hutchinson against Franklin Bien, as receiver, etc. No opinion. Motion for leave to appeal to the Court of Appeals denied. Motion to vacate stay of proceedings granted. TOUGHTON, Appellant, v. CITY OF HACA, Respondent. (Supreme Court, Aplate Division, Third Department. May 3, 5.) Action by Peter A. Houghton against è city of Ithaca. No opinion. Judgment and ler unanimously affirmed, with costs. HOUSE et al., Respondents, v. CARR, Appelt. (Supreme Court, Appellate Division, urth Department. May 3, 1905.) Action by ria House and Cline E. House against Lun C. Carr, administrator, etc. No opinion.ing that examination of the witnesses produced dgment affirmed, with costs. HOWARD, Respondent, v. CITY OF FUL-N, Appellant. (Supreme Court, Appellate ision, Fourth Department. May 10, 1905.) tion by James S. Howard against the city Fulton. No opinion. Motion to dismiss ap1 denied, with $10 costs. INTERNATIONAL SILVER CO., Respondent, v. THOMAS, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 10, 1905.) Action by the International Silver Company against Orlando F. Thomas. PER CURIAM. Order modified, by provid by the plaintiff be continued from day to day until completed, that such examination be concluded on or before July 1, 1905, and that, in case such examination occupies more than five days, the plaintiff be required to pay to defendant's attorney $10 for each day in excess of five so occupied, in addition to the sum specified in the order appealed from, and, as so and 127 New York State Reporter modified, affirmed, without cost of this appeal to either party. WILLIAMS, J., dissents, on the ground that under the facts of this case the granting of an open commission was an improper exercise of discretion, and the order should be reversed and the motion denied. JAMES v. LIBBY, MCNEIL & LIBBY. (Supreme Court, Appellate Division, First Department. May 12, 1905.) Action by William James against Libby, McNeil & Libby. No opinion. Motion denied, with $10 costs. JAMES T. WHITE & CO., Appellant, V. MOOT, Respondent. (Supreme Court, Appellate Division, First Department. April 20, 1905.) Action by James T. White & Co. against Adelbert Moot. E. S. Benedict, for appellant. C. V. Nellany, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. JOHNSON, Respondent, v. CITY OF NEW YORK et al., Appellants. (Supreme Court, Ap pellate Division, Second Department. May 12, 1905.) Action by Louise Johnson against the city of New York, the Automobile Club of America, Albert R. Shattuck, and others. No opinion. Reargument ordered, and case set down for June 7, 1905. KEANE, Appellant, V. BROOKLYN HEIGHTS R. CO., Respondent. Supreme Court, Appellate Division, Second Department. April 28, 1905.) Action by William Kette against the Brooklyn Heights Railroad Compe ny. PER CURIAM. Order of the County Court of Kings county modified, by inserting a vision requiring the defendant to pay the o of the trial and all disbursements in the secon to date, together with the costs of this p peal, all to be paid within 20 days from the entry of this order. On failure to comply ala these conditions, the order is reversed, al judgment unanimously directed on the verici, with costs, and with costs of this appeal. KELLER, Respondent, v. KELLER, Ape lant. (Supreme Court, Appellate Divis First Department. April 7, 1905.) Actics Annie L. Keller against Augustus R. K A. Beekmann, for appellant. C. W. Leiler, for respondent. PER CURIAM. Order affirmed, with $1 costs and disbursements, on opinion in K v. Keller, 100 App. Div. 325, 91 N. Y. Su528. VAN BRUNT, P. J., and MCLAUGHLIN, J., dissent. KELLER v. KELLER. (Supreme Com JOHNSON, Appellant, V. THOMPSON- Appellate Division, First Department. M STARRETT CO., Respondent. (Supreme 12, 1905.) Action by Annie L. Keller ag Court, Appellate Division, Second Department, Augustus R. Keller. No opinion. Motica e April 28, 1905.) Action by John P. Johnson nied. against the Thompson-Starrett Company. Νο opinion. Appeal dismissed by default, with costs. JOHNSTON, Respondent, v. LONG ISLAND INV. & IMP. CO., Appellant. (Supreme Court, Appellate Division, Second Department. April 28, 1905.) Action by George B. Johnston against the Long Island Investment & Improvement Company. No opinion. Judgment, so far as appealed from, affirmed, with costs. JONES v. FUCHS et al. (Supreme Court, Appellate Division, Second Department. April 21, 1905.) Action by William G. Jones against Frederick Waldemar Fuchs and others. No opinion. Order aflirmed, with $10 costs and disbursements. JONES, Respondent, v. MENDHAM, Appellant. (Supreme Court, Appellate Division, Second Department. April 28, 1905.) Action by Spencer Jones, an infant, by Mary Jones, his guardian ad litem, against Maurice B. Mend ham. No opinion. Judgment and order of the County Court of Westchester county unanimously affirmed, with costs. KAMINSKY V. SCHENKEL. (Supreme Court, Appellate Division, First Department. May 12, 1905.) Action by Paul M. Kaminsky against Jacob Schenkel. No opinion. Motion denied, with $10 costs. KELLY, Respondent, v. FRONTIER TELEPHONE CO., Appellant. (Supreme Court A pellate Division, Fourth Department. May 1905.) Action by Theresa Kelly, an infant, b James E. Kelly, her guardian ad litem, aga the Frontier Telephone Company. No opinist Judgment and order affirmed, with costs. KENSINGTON NAT. BANK, Respo v. HENRY, Appellant. (Supreme Court pellate Division, Second Department. Apri 1905.) Action by the Kensington Nat Bank against Charles T. Henry. No opiske Judgment affirmed, with costs. KENT, Appellant, v. LEWIS, Respect (Supreme Court, Appellate Division, Second I partment. April 21, 1905.) Action by erick G. Kent against Henry H. Lewis N opinion. Judgment affirmed, with costs. KENT, Appellant, v. NEW YORK, N. H& H. R. CO., Respondent. (Supreme Court. A pellate Division, Second Department. M 1905.) Action by James L. Kent, as as trator of John E. Kent, deceased, against the New York, New Haven & Hartford Bal Company. No opinion. Judgment unan ly affirmed, with costs. KIND, Appellant, v. BLAINE, Respondet (Supreme Court, Appellate Division, First De partment. April 20, 1905.) Action by Emer PER CURIAM. Judgment reversed, and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce judgment as entered, including costs, etc., to the sum of $2,150.38, in which event judgment, as so modified, and order, affirmed, without costs. LENNOX, Respondent, v. INTERURBAN pany. KNEE, Respondent, v. NEWTON CREEK OWING CO., Appellant. (Supreme Court, ppellate Division, Second Department. May 1905.) Action by James Knee against the ewton Creek, Towing Company. No opinion. dgment and order of the County Court of eens county unanimously affirmed, with costs. KRONTHAL, Respondent, v. METROPOLI- | 21, 1905.) AN ST. RY. CO., Appellant. (Supreme against the Interurban Street Railway Comurt, Appellate Term. April, 1905.) Appeal om City Court of New York. Action by Duis Kronthal against the Metropolitan Street ailway Company. From a judgment in favor plaintiff, defendant appeals. Reversed on ndition. Henry A. Robinson (Bayard H. nes and F. Angelo Gaynor, of counsel), for pellant. Joseph Kohler, for respondent. PER CURIAM. It is quite evident that jury in its award improperly included punie damages. The judgment will be reversed, d a new trial ordered, unless the respondent pulates to reduce the judgment to $200 and sts, in which event the judgment, as modified, ll be affirmed, without costs. KUEHN, Respondent, Y. SYRACUSE nion and memorandum written by them, ARSEN, Appellant, v. UNITED STATES ORTGAGE & TRUST CO., Respondent. preme Court, Appellate Division, Second partment. May 12, 1905.) Action by Ludka Larsen, as administratrix, etc., against United States Mortgage & Trust Company. opinion. Motion for leave to appeal to the urt of Appeals denied. EE, Respondent, v. UNION RY. CO. OF W YORK, Appellant. (Supreme Court, Aplate Division, First Department. May 5, 5.) Action by Charles A. Lee against the ion Railway Company of New York. B. H. 93 N.Y.S.-72 PER CURIAM. Judgment and order reversed, and new trial granted, costs to abide the event, on the authority of Lennox v. Interurban Street Railway Company (decided herewith) 93 N. Y. Supp. 230. In re LENT. (Supreme Court, Appellate Division, Second Department. April 21, 1905.) In the matter of the judicial settlement of the account of Smith Lent, administrator, etc. Motion granted. LEVIN & MEYER CO. v. JACKSON et al. (Supreme Court, Appellate Division, First Department. April 7, 1905.) Action by the Levin & Meyer Company against Henry H. Jackson and others. No opinion. Motion denied, with $10 costs. LEVIN et al., Appellants, v. McLEAN et al., Respondents. (Supreme Court, Appellate DiMay 20, 1905.) vision, First Department. Action by Jacob Levin and another against James H. McLean and another. J. C. WechG. E. Cogswell, for resler, for appellants. No opinion. Judgment affirmed, spondents. with costs. LEVY v. POPPER et al. (Supreme Court, Appellate Division, First Department. May 12, 1905.) Action by William Levy against Edward Popper and others. No opinion. Motion denied. Memorandum per curiam. LEWIS v. BARBER. (Supreme Court, ApMay 3, pellate Division, Third Department. 1905.) Action by Ellis F. Lewis, as executor of Richard Westaway, deceased, against Herbert M. Barber, as administrator, etc., of Daniel Denean, deceased. No opinion. Order affirmed, with $10 costs and disbursements. LONG ISLAND LOAN & TRUST CO. v. BROOKLYN HYGIENIC ICE CO. et al. (Supreme Court, Appellate Division, Second Department. May 12, 1905.) Action by the Long Island Loan & Trust Company, as trustee, etc., against the Brooklyn Hygienic Ice Company, Agnes L. O'Rourke, individually and as executrix, etc., the Empire State & Surety Company, and others. PER CURIAM. We are of the opinion that the court had no power on this motion to adjust the rights of the parties in respect to mat and 127 New York State Reporter ters which could only be the subject of contract. The order must be reversed, with $10 costs and disbursements, but without prejudice to the right of the plaintiff to move, if so advised, to be relieved from the purchase, or for a resale of the premises. LOSEY, Respondent, v. WORDEN, Appellant. (Supreme Court, Appellate Division, Fourth Department. May 3, 1905.) Action by Minnie M. Losey, as executor, etc., of Charles H. Losey, deceased, against Charles A. Worden, as executor, etc., of Mary A. Robart, deceased. No opinion. Judgment affirmed, with costs. In re LOW et al. (Supreme Court, Appellate Division, First Department. May 20, 1905.) In the matter of Seth Low and others. No opinion. Motion denied, with $10 costs. LUDINGTON et al., Appellants, v. NATIONAL BROADWAY BANK OF NEW YORK et al., Respondents. (Supreme Court, Appellate Division, Second Department. April 21, 1905.) Action by Benjamin L. Ludington and Charles H. Pond, as substituted trustees, etc., against the National Broadway Bank of New York and the Mercantile National Bank of the City of New York. PER CURIAM. Motion for reargument denied. Motion for leave to appeal to the Court of Appeals granted, and question certified as follows: "Does the complaint in this action state a cause of action?" LUNNY, Respondent, v. MCCLELLAN et al., Appellants. (Supreme Court, Appellate Division, First Department. May 20, 1905.) Action by Farrel Lunny against Malleville W. McClellan and others. E. Mitchell, for appellants. G. W. Files, for respondent. No opinion. Order affirmed, with $10 costs and disbursements. McCONNELL, Appellant, v. MORSE IRON WORKS & DRY DOCK CO., Respondent. (Supreme Court, Appellate Division, Second Department. April 28, 1905.) Action by Sarah McConnell, as administratrix, etc., against the Morse Iron Works & Dry Dock Company. No opinion. Motion for reargument granted, and case set down for May 8, 1905. MCCOON v. SCHWARZ. (Supreme Court, Appellate Division, First Department. May 20, 1905.) Action by Catherine A. McCoon against Mayme Schwarz. No opinion. Motion granted, so far as to dismiss appeal, with $10 costs. MCDONALD, Respondent, v. HOLBROOK, CABOT & DALY CONTRACTING CO., Ap pellant. (Supreme Court, Appellate Division, Second Department. May 12, 1905.) Action by Ida L. McDonald against the Holbrook, Cabot & Daly Contracting Company. opinion. Motion to resettle order denied. No MCDONALD, Respondent, v. TONAWAN DA IRON & STEEL CO. et al., Appellants (Supreme Court, Appellate Division, Fourth Department. May 3, 1905.) Action by Dun can J. McDonald against the Tonawanda Ir & Steel Company and William M. Mills. PER CURIAM. Judgment and order re versed, and new trial ordered, with costs to the appellants to abide event. Held, that the verdict, in so far as it found want of proba cause, was contrary to and against the weig of the evidence. MCGEE, Appellant, v. UNITED STATES CASUALTY CO., Respondent. (Supre Court, Appellate Term. May 23, 1905) Ap peal from Municipal Court, Borough of Ma hattan, First District. Action by John C. M Gee against the United States Casualty Co pany. Judgment for defendant, and plaint appeals. Affirmed. R. L. Pritchard, for pellant. Carl Schurz Petrasch, for respondent PER CURIAM. The plaintiff himself test fied in effect that, if he settled Mr. Cross claim for $1,000, the defendant promised give him, the plaintiff, $200. The evide shows that Mr. Crosby's claim was not tled for $1,000, and therefore plaintiff was entitled to receive the $200. The judgmen appealed from is affirmed, with costs. MAHNKEN, Respondent, v. BROOKLYN HEIGHTS R. CO., Appellant. (Sup Court, Appellate Division, Second Depar April 21, 1905.) Action by Henry Ma against the Brooklyn Heights Railroad Co pany. No opinion. Judgment and order 2017 imously affirmed, with costs. MAHONEY, Respondent, v. WESTING HOUSE, CHURCH, KERR & CO. A lant. (Supreme Court, Appellate Division ond Department. May 12, 1905.) Action Philip Mahoney against Westinghouse. Charch Kerr & Co. No opinion. Motion denied. MAHONEY, Respondent, v. WESTING HOUSE, CHURCH & KERR, Appellan (Supreme Court, Appellate Division, Secch Department. April 28, 1905.) Action |