DOHERTY, Appellant, v. CATSKILL CEMENT CO., Respondent. (Court of Appeals of New York. May 19, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (136 App. Div. 902, 120 N. Y. Supp. 1122), entered January 17, 1910, affirming a judgment in favor of defendant entered upon a verdict in an action to recover damages alleged to have been occasioned plaintiff by the maintenance of a nuisance by the defendant. A. T. Clearwater, Louis Marshall, and Edwin P. Kilroe, for appellant. Frank H. Osborn, for respondent. FERGUSON CONTRACTING CO., Appellant, v. HELDERBERG CEMENT CO., Respondent. (Court of Appeals of New York. Oct. 3, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (139 App. Div. 901, 123 N. Y. Supp. 1115), entered June 3, 1910, 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 on contract. Brainard Tolles and Juiien T. Davies, for appellant. Murray Downs, for respondent. Judgment affirmed, with PER CURIAM. PER CURIAM. Judgment affirmed, with costs. costs. CULLEN, C. J., and GRAY, VANN, WERCULLEN, C. J., and GRAY, VANN, WER-NER, HAIGHT, HISCOCK, and COLLIN, NER, HAIGHT, WILLARD BARTLETT, and JJ., concur. CHASE, JJ., concur. FEARING, Respondent, v. LINDSLEY, ApDOYLE, Respondent, v. CITY OF TROY, pellant. (Court of Appeals of New York. Appellant. (Court of Appeals of New York. June 6, 1911.) Motion to dismiss an appeal June 16, 1911.) Appeal from an order of the from a judgment of the Appellate Division of Appellate Division of the Supreme Court in the Supreme Court in the First Judicial Dethe Third Judicial Department (138 App. Div. partment (137 App. Div. 944, 123 N. Y. Supp. 650, 122 N. Y. Supp. 704), entered May 10, 1115), entered June 15, 1910, affirming a judg1910, reversing a judgment in favor of defend- ment in favor of plaintiff entered upon a verant entered upon a dismissal of the complaint dict in an action to recover damages alleged by the court at a Trial Term and granting a to have been sustained by plaintiff through the new trial in an action to recover for personal false representations of defendant. The moinjuries alleged to have been sustained through tion was made upon the ground that the apthe defendant's negligence. George B. Wel-peal was not taken within 60 days after servlington, Corp. Counsel, for appellant. Cornelius ice of a copy of the judgment of affirmance Hannan, for respondent. and notice of its entry. John Kirkland Clark, Wilson B. Brice, opposed. for the motion. PER CURIAM. Motion granted and appeal dismissed, with costs and $10 costs of motion. PER CURIAM. Order affirmed and judgment absolute ordered against appellant, with costs in all courts. CULLEN, C. J., and GRAY, HAIGHT, VANN, WERNER, HISCOCK, and COLLIN, JJ., concur. EARLE, Respondent, v. McCRUM,, Appellant. (Court of Appeals of New York. Oct. 31, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (138 App. Div. 909, 123 N. Y. Supp. 1114), entered May 31, 1910, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover upon a promissory note. William P. Maloney, for appellant. Richard T. Greene and George F. Hurd, for respondent. PER CURIAM. costs. Judgment affirmed, with CULLEN, C. J., and GRAY, WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur. EVANS, Appellant, v. EASTMAN KODAK CO., Respondent. (Court of Appeals of New York. June 16, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (143 App. Div. 958, 128 N. Y. Supp. 1122), entered March 21, 1911, affirming a judgment in favor of defendant entered upon a verdict directed by the court in an action to recover for per sonal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. See, also, 94 N. E. 1093. George D. Reed, for appellant. George A. Carnahan, for respondent. PER CURIAM. Judgment affirmed, with costs. CULLEN, C. J., and GRAY, VANN, HISCOCK, HAIGHT, and COLLIN, JJ., concur. FISS, DOERR & CARROLL HORSE CO., Respondent, v. GOLDE et al., Appellants. (Court of Appeals of New York. Nov. 21, pellate Division of the Supreme Court in the 1911.) Appeal from a judgment of the ApFirst Judicial Department (138 App. Div. 907, 123 N. Y. Supp. 1116), entered May 25, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover a balance alleged to be due for work done under a contract. Benjamin N. Cardozo and Harry A. Gordon, for appellants. Franklin Pierce, for respondent. PER CURIAM. Judgment reversed and new trial granted, costs to abide event, unless within 20 days plaintiff stipulates to reduce its judgment by the sum of $1,521, with interest from the date of the assessment to the date of the judgment, in which case judgment as reduced is affirmed, without costs of this appeal to either party. CULLEN, C. J., and GRAY, HAIGHT, VANN, WILLARD BARTLETT, HISCOCK, and COLLIN, JJ., concur. al., Respondents. PER CURIAM. Motion granted and appeal dismissed, with costs and $10 costs of FRANCO, Respondent, v. RADT, Appellant. (Court of Appeals of New York. Oct. 10, 1911.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (130 N. Y. Supp. 1111), entered June 24, 1911, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover the purchase price of a bond and mortgage. The motion was made upon the grounds that the Appellate Division had unanimously decided that the judgment was supported by the evidence; that the exceptions were frivolous and presented no questions of law for review and that the appeal was taken for purposes of delay. Maxwell Slade, for the motion. Emanuel Eschwege, opposed. PER CURIAM. Motion granted and appeal dismissed, with costs and $10 costs of motion. GALLAGHER, Respondent, v. GALLAGHER, Appellant. (Court of Appeals of New York. May 30, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (135 App. Div. 457, 120 N. Y. Supp. 18), entered December 29, 1909, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to compel specific performance of an alleged agreement to convey real property. John J. Gleason, for appellant. Benjamin N. Cardozo, John H. Judge, and Louis B. Hasbrouck, for respondent. PER CURIAM. costs. Judgment affirmed, with CULLEN, C. J., and HAIGHT, WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur. GARDINER'S BAY CO., Appellant, v. ATLANTIC FERTILIZER & OIL CO., Respondent. (Court of Appeals of New York. Oct. 31, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (139 App. Div. 913, 123 N. Y. Supp. 1117), entered June 27, 1910, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term in an action to restrain the defendant from so operating a fish factory as to constitute an alleged nuisance. See, also, 200 N. Y. 508, 93 N. E. 1121. Percy L. Housel, for appellant. Nathan D. Stern, for respondent. PER CURIAM. Judgment modified by striking therefrom award of extra allowance, and as modified, affirmed, without costs to either party. CULLEN, C. J., and GRAY, WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur. GEORGE DEIS, SON & CO., Respondent, v. HART, Appellant. (Court of Appeals of New York. Oct. 31, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (134 App. Div. 994, 119 N. Y. Supp. 1126), entered November 17, 1909, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action to recover for goods alleged to have been sold and delivered. Walter Welch, for appellant. A. B. Steele and William Witherstine, for respondent. PER CURIAM. Judgment affirmed, with costs. CULLEN, C. J., and VANN, WERNER, WILLARD BARTLETT, HISCOCK, CHASE, GOLDSMITH, Appellant, v. TOLK, Respondent. (Court of Appeals of New York. Oct. 31, 1911.) Appeal from a judgment entered June 4, 1910, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (138 App. Div. 287, 122 N. Y. Supp. 1051), which affirmed an interlocutory judgment of Special Term sustaining a demurrer to the complaint in an action to compel specific performance of an alleged contract. Henry C. Burnstine, for appellant. Nathan Tolk, for respondent. PER CURIAM. Judgment affirmed, with costs. CULLEN, C. J., and VANN, WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur. In re GRADE CROSSING COM'RS OF CITY OF BUFFALO. (Court of Appeals of New York. Nov. 28, 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (130 N. Y. Supp. 1112), entered July 11, 1911, which reversed an order of Special Term confirming the report of commissioners appointed to ascertain the compensation to be paid to owners of land taken for street purposes and remitted the proceedings to said commissioners. Ralph K. Robertson and Spencer Clinton, for appellants. William L. Marcy and Helen Z. M. Rodgers, for respondent. PER CURIAM. Appeal dismissed, with costs. CULLEN, C. J., and HAIGHT, WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur. In re GRIFFIN, Superintendent of Highways. (Court of Appeals of New York. June 16, 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the Third Judicial Department (129 N. Y. Supp. 1125), entered May 22, 1911, which affirmed an order of the county judge of Franklin county committing the appellant herein to the county jail until he deliver certain books and papers to the petitioner, under section 80 of the public officers law. Consol. Laws 1909, c. 47. John P. Kellas and Le Roy M. Kellas, for appellant. George J. Moore, for respondent. PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and GRAY, HAIGHT, WERNER, WILLARD BARTLETT, CHASE, and COLLIN, JJ., concur. In re GUNTHER. In re MANSKE. (Court of Appeals of New York. June 16, 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (140 App. Div. 861, 125 N. Y. Supp. 702), entered November 18, 1910, which affirmed a decree of the Kings County Surrogate's Court sustaining objections to the account of the former administratrix of the estate of Otto Gunther, deceased. Emanuel J. Myers and Edward C. Graves, for appellant. Joseph Ullman, for respondents. PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and GRAY, HAIGHT, WERNER, WILLARD BARTLETT, CHASE, and COLLIN, JJ., concur. HALL, Respondent, v. COOPER LAND CO., Appellant. (Court of Appeals of New York. Nov. 21, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (139 App. Div. 922, 124 N. Y. Supp. 1116), entered July 5, 1910, tered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the maintenance by the defendant of an alleged nuisance in permitting a stop cock connected with a water service pipe, laid down by defendant's predecessor in title for the purpose of supplying his premises with water, to protrude above the sidewalk. Martin T. Nachtmann, for appellant. Richard O. Bassett and Smith O'Brien, for respondent. PER CURIAM. Judgment affirmed, with costs. CULLEN, C. J., and WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., Concur. GRAY, J., not voting. In re HAMILTON PLACE IN CITY OF NEW YORK. Appeal of CUNNINGHAM. (Court of Appeals of New York. June 13, 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (128 N. Y. Supp. 283), entered March 31, 1911, which affirmed so much of an order of Special Term as confirmed in part an award of commissioners of appraisal in condemnation proceedings, and dismissed the appeal from so much of said order as refused to confirm part of said award. Maurice Deiches and Monroe Goldwater, for appellant. Archibald R. Watson, Corp. Counsel (Theodore Connoly and Francis J. Byrne, of counsel), for respondent. PER CURIAM. Order affirmed, with costs. CULLEN. C. J., and GRAY, HAIGHT, WERNER, WILLARD BARTLETT, CHASE, and COLLIN, JJ., concur. HANNA, Respondent, v. SORG, Appellant. (Court of Appeals of New York. Nov. 21, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (137 App. Div. 889, 121 N. Y. Supp. 1134), entered March 11, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action on contract. Charles A. Boston, and James Allison Kelly, for appellant. Norman B. Beecher, for respond ent. PER CURIAM. Judgment affirmed, with costs. CULLEN, C. J., and GRAY, HAIGHT, VANN, WERNER, CHASE, and COLLIN, JJ., concur. HARGRAVES MILLS, Respondent, v. GORDON, Appellant. (Court of Appeals of New York. Oct. 24, 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (137 App: Div. 695, 122 N. Y. Supp. 245), entered April 8, 1910, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action on contract. Charles E. Rushmore and Walter D. Clark, for appellant. Wallace MacFarlane, Charles O. Brewster, and S. J. Rosensohn, 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, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur. HATTEN, Respondent, v. HYDE-McFARLIN CO., Appellant. (Court of Appeals of New York. Oct. 31, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (137 App. Div. 932, 123 N. Y. Supp. 1119), entered April 12, 1910, affirming a judgment in favor HECHT, Respondent, v. A. G. HYDE & SONS, Appellant. (Court of Appeals of New York. Oct. 31, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (139 App. Div. 902, 123 N. Y. Supp. 1120), entered June 21, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for an alleged breach of contract. See, also, 199 N. Y. 556, 93 N. E. 375. James J. Allen, for appellant. Morgan J. O'Brien, Sam son Lachman, and Morton Stein, for respond ent. Judgment affirmed, with PER CURIAM. costs. CULLEN, C. J., and GRAY, WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur. HOSKIN et al., Respondents, v. LONG ISLAND LOAN & TRUST CO., Appellant. (Court of Appeals of New York. Nov. 21, 1911.) Appeal from a judgment of the Appel late Division of the Supreme Court in the Second Judicial Department (139 App. Div. 258, 123 N. Y. Supp. 994), entered June 28, 1910, in favor of plaintiffs upon the submission of a controversy under section 1279 of the Code of Civil Procedure as to the proper interpretation of an instrument establishing a trust fund. George S. Ingraham, for appellant. Charles J. Ryan and John R. Kuhn, for respondents. PER CURIAM. Judgment affirmed, with costs, on opinion of Burr, J., below. CULLEN, C. J., and GRAY, HAIGHT, VANN, WERNER, CHASE, and COLLIN, JJ., concur. In re HUEG. (Court of Appeals of New York. Oct. 17, 1911.) Appeal from an order of the Appellate Division of the Supreme Court Div. 939, 129 N. Y. Supp. 1128), entered May in the Second Judicial Department (144 App. 12, 1911, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel the defendant to institute proceedings to ascertain the compensation due the petitioner under chapter 1006 of the Laws of 1895 by reason of the closing and discontinuing of Thomson avenue, in the bor R. Watson, Corp. Counsel (Joel J. Squier and ough of Queens, city of New York. Archibald James Regan Fitz Gerald, of counsel), for appellant. Benjamin Trapnell and Joseph A. Flannery, for respondent. PER CURIAM. Order affirmed, with costs. WERNER, WILLARD BARTLETT, HISCULLEN, C. J., and HAIGHT, VANN, COCK, and CHASE, JJ., concur. HUNTER, Appellant, v. BACON, Respondent. (Court of Appeals of New York. Oct. 3, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (135 App. Div. 920, 120 N. Y. Supp. 1128), entered December 28, 1909, affirming a judgment in favor of defendant en ▼. AMERICAN IANDIORIO, Appellant, SILK DYEING & FINISHING CO., Respond ent. (Court of Appeals of New York. June 16, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (136 App. Div. 930, 120 N. Y. Supp. 1129), entered February 20, 1910, affirming a judgment in favor of defend ant 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 occasioned by the negligence of defendant, his employer. Rosario Maggio, for appellant. Bertrand L. Pettigrew, for respondent. PER CURIAM. Judgment affirmed, with costs. CULLEN, C. J., and GRAY, HAIGHT, VANN, WERNER, HISCOCK, and COLLIN, JJ., concur. In re JEROME AVE. IN CITY OF NEW YORK. (Court of Appeals of New York. Oct. 24, 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (130 N. Y. Supp. 609), entered July 7, 1911, which affirmed an order of Special Term confirming the report of commissioners of estimate and assessment in a street opening proceeding. Benjamin Trapnell and Joseph A. Flannery, for appellant. Archibald R. Watson, Corp. Counsel (Joel J. Squier, and James Regan Fitz Gerald, of counsel), for respondent. JOHN J. HART CO., Appellant, v. CITY OF NEW YORK, Respondent. (Court of Appeals of New York, Oct. 3, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (129 App. Div. 903, 113 N. Y. Supp. 1135), entered January 25, 1909, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term without a jury in an action to recover for excess work alleged to have been performed in connection with a contract for paving. George B. Hayes, for appellant. Archibald R. Watson, Corp. Counsel (Terence Farley and Francis Martin, of counsel), for respondent. PER CURIAM. costs. Judgment affirmed, with CULLEN, C. J., and GRAY, VANN, WERNER, WILLARD BARTLETT, HISCOCK, and CHASE, JJ., concur. JUILLIARD et al., Appellants, v. TROKIE et al., Respondents. (Court of Appeals of New York. Nov. 21, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (139 App. Div. 530, 124 N. Y. Supp. 121), entered July 13, 1910, 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 re In re KANE (Court of Appeals of New of the Appellate Division of the Supreme Court York. June 16, 1911.) Appeal from an order in the Second Judicial Department (129 N. Y. Supp. 280), entered April 28, 1911, which affirmed an order of Special Term (129 N. Y. Supp. 990) denying a motion for a peremptory writ of mandamus to compel defendant to appoint the petitioner to the office of commissioner of elections of the city of New York. Charles H. Corp. Counsel (Terence Farley and Louis H. Kelby, for appellant. Archibald R. Watson, Hahlo, of counsel), for respondent. PER CURIAM. Order affirmed, with costs, on opinion of Burr, J., below. COLLIN, JJ., concur. KIDDER et al., Appellants, v. CHILDS et al., Respondents. (Court of Appeals of New York. June 16, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (130 App. Div. 259, 114 N. Y. Supp. 561), entered March 10, 1909, in favor of defendants, upon the submission of a controversy under section 1279 of the Code of Civil Procedure, as to the proper construction of an agreement for the sale of land. Charles Stewart Butler, for appellants. George M. Mackellar, for respondents. PER CURIAM. Judgment reversed and judgment ordered for plaintiffs on the submitted controversy, without costs to any party, on dissenting opinion of Miller, J., below. CULLEN, C. J., and GRAY, HAIGHT, VANN, WERNER, HISCOCK, and COLLIN, JJ., concur. KING et al. v. BEERS et al. (Court of Appeals of New York. Oct. 24, 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (129 N. Y. Supp. 986), entered June 8, 1911, which reversed an order of Special Term confirming the report of a referee in surplusmoney proceedings subsequent to the foreclosure of a mortgage upon real property. Edward S. Seidman, Henry. Wollman, Benjamin F. Wollman, and Robert G. Starr, for appellants. Martin Conboy and Frank A. Clary, for respondents. PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and HAIGHT, VANN, WERNER, WILLARD BARTLETT, HISCOCK, and CHASE, JJ., concur. KOELLHOFFER v. HILLEBRAND et al. (Court of Appeals of New York. Oct. 10, 1911.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (144 App. Div. 915, 129 N. Y. Supp. 1131) entered May 19, 1911, affirming a judgment in favor of plaintiff entered upon the report of a referee in an action to recover damages alleged to have been occasioned plaintiff by fraudulent representations of defendants. The motion was made upon the grounds that the Appellate Division had unanimously affirmed the judgment appealed from, that no question were frivolous. Fred L. Gross, for the motion. | terclaim for breach of a covenant against inJoab H. Banton, opposed. PER CURIAM. Motion denied, with $10 costs. cumbrances so diminish the plaintiff's recovery as to prevent the court at Special Term from making an order directing judgment of fore closure on the pleadings?" See, also, 63 Misc. Rep. 161, 118 N. Y. Supp. 502; 143 App. Div. Elec-949, 128 N. Y. Supp. 1129. Charles J. Katzenstein and Gates Hamburger, for appellants. James C. Van Siclen and Edwin G. Wright, for respondent. Oct. KOENIG V. BRITT et al., Board of tions. (Court of Appeals of New York. 10, 1911.) Appeal from Supreme Court, Appellate Division, First Department. In the matter of the application of Samuel S. Koenig for relief against J. Gabriel Britt and others, constituting the Board of Elections of New York City. From an order of the Appellate Division (131 N. Y. Supp. 140), reversing an order in favor of plaintiff granting a mandamus, plaintiff appeals. Order of the Appellate Division reversed, and order of Special Term modified. Herbert R. Limburg, A. S. Gilbert, and Albert S. Bard, for appellant. Archibald R. Watson, Corp. Counsel (Abram I. Elkus, Terence Farley, and George P. Nicholson, of counsel), for respondents. D-Cady Herrick, for Democratic State Committee, intervening. PER CURIAM. The order of the Appellate Division should be reversed and that of the Special Term in substance affirmed, without costs. There are some errors, however, in the form of the Special Term order, for which reason it must be modified, and the order for this may be settled on two days' notice before the chief judge of this court. CULLEN, C. J., and HAIGHT, VANN, WERNER, WILLARD BARTLETT, HISCOCK, and CHASE, JJ., concur. In re LAFFARGUE'S ESTATE. (Court of Appeals of New York. June 16, 1911.) Appeal by permission. from an order of the Appellate Division of the Supreme Court in the First Judicial Department (142 App. Div. 426, 126 N. Y. Supp. 965), entered January 20, 1911, which modified and affirmed as modified a decree of the New York County Surrogate's Court directing the executor of J. George Laffargue to judicially settle his accounts. The following questions were certified: "(1) Has the Surrogate's Court jurisdiction of a proceeding commenced prior to September 1, 1910, to compe. an executor to judicially settle his accounts pursuant to the provisions of section 2727 of the Code of Civil Procedure, at the instigation of one whose claim of interest in the estate is dependent upon the survivorship of a person named in the will as a legatee, the fact of such survivorship being denied by a duly verified anof the Code of Civil Procedure, and interposed upon the return day of the citation by the executor? (2) In such a proceeding, has the Surrogate's Court jurisdiction to determine the disputed fact of survivorship, all of the interested parties having first been cited in?" also, 143 App. Div. 910, 127 N. Y. Supp. 1128. George D. Zahm, for appellant. Edwin T. Taliaferro and E. B. Wilson, for respondent. KOEWING, Appellant, v. THALMANN et al., Respondents. (Court of Appeals of New York. Nov. 21, 1911.) Appeal from a judg-swer in the form as prescribed by section 2722 ment of the Appellate Division of the Supreme Court in the First Judicial Department (139 App. Div. 893, 123 N. Y. Supp. 750), entered June 23, 1910, 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 damages alleged to have been occasioned plaintiff through the negligence of defendants as stockbrokers in handling his account. E. C. Crowley, for appellant. J. Markham Marshall, for respondents. PER CURIAM. Judgment affirmed, with costs. CULLEN, C. J., and GRAY, HAIGHT, VANN, WILLARD BARTLETT, HISCOCK, and COLLIN, JJ., concur. See, PER CURIAM. Order affirmed, with costs, and questions certified answered in the affirmative. CULLEN, C. J., and GRAY, HAIGHT, WERNER, WILLARD BARTLETT, CHASE, and COLLIN, JJ., concur. Judgment affirmed, with LAPIER, Appellant, v. GONYO, Respondent. (Court of Appeals of New York. Oct. 3, 1911) KOUWENHOVEN, Respondent, ▼. GIFFORD et al., Appellants. (Court of Appeals of sion of the Supreme Court in the Third JudiAppeal from a judgment of the Appellate DiviNew York. Oct. 24, 1911.) Appeal, by per cial Department (136 App. Div. 903, 120 N. mission, from an order of the Appellate Divi- Y. Supp. 1131), entered January 8, 1910, afsion of the Supreme Court in the Second Ju- firming a judgment in favor of defendant endicial Department (143 App. Div. 913, 127 Ntered upon a decision of the court at a Trial Y. Supp. 1128), entered February 17, 1911, Term without a jury in an action to recover which affirmed an order of Special Term grant- for an alleged trespass and to obtain an ining a motion for judgment upon the pleadings junction. C. J. Vert, for appellant. John H. in an action to foreclose a mortgage. The folBooth, for respondent. lowing questions were certified: "First. In this PER CURIAM. action for the foreclosure of a purchase-money costs. mortgage, in which no allegation of the complaint is denied, does the counterclaim for breach of covenant against incumbrances so put in issue the amount due plaintiff under the mortgage as to prevent the making of an order at Special Term directing judgment on the pleadings? Second. Is the appellant, mortgagor, entitled as a matter of right to a jury trial of the issues raised on her counterclaim for breach of covenant against incumbrances in this action to foreclose a purchase-money mortgage? Third. Does the failure of the plaintiff CULLEN, C. J., and GRAY, HAIGHT, WERNER, HISCOCK, and COLLIN, JJ., concur. BROOKLYN LARSON, Appellant, HEIGHTS R. CO., Respondent. (Court of Appeals of New York. May 19, 1911.) Ap peal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (134 App. Div. 679, 119 N. |