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firming 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 by plaintiff through the negligence of defendant, his employer. Frederick S. Martyn, for appellant. D. A. Marsh and George D. Yeomans, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

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

In re LATHAM'S WILL. (Court of Appeals of New York. Nov. 28, 1911.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (145 App. Div. 849, 130 N. Y. Supp. 535), entered July 7, 1911, which reversed an order of the New York County Surrogate's Court sustaining objections to the granting of letters testamentary to the respondent herein, one of the executors named in the will of John C. Latham, deceased. The motion was made upon the grounds that the Court of Appeals had no jurisdiction to review the order of reversal for the reason that it was not an order finally determining a special proceeding but was discretionary and that no question of law was involved. See, also, 132 N. Y. Supp. 1135. H. B. Walmsley, for the motion. John Thomas Smith, opposed.

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LE COMPTE MFG. CO., Appellant, v. WILCO., Respondent. (Court of Appeals of New LIAM J. ASCHENBACH'S SONS HARNESS York. Oct. 3, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (138 App. Div. 908, 123 N. Y. Supp. 1125), entered May 25, 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 brokerage commissions alleged to have been earned by plaintiff's assignee in negotiating the sale of defendant's capital stock. Walter Carroll Low, for appellant. Theodore B. Richter, for respondent.

PER CURIAM. Judgment affirmed, with costs

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

YORK (Court

LENNON, Respondent, v. NEW CENT. & H. R. R. CO., Appellant. of Appeals of New York. June 16, 1911.) Appeal from a judgment of the Appellate Division

PER CURIAM. Motion denied, with $10 of the Supreme Court in the Fourth Judicial

costs.

LEAKE, Respondent, v. HARTMAN, Appellant. (Court of Appeals of New York. June 13, 1911.) Appeal by permission, from an order of the Appellate Division of the Supreme Court in the Fourth Judicial Department (137 App. Div. 451, 121 N. Y. Supp. 771), entered March 9, 1910, which affirmed an order of the Monroe County Court granting a motion to strike the above-entitled action from the calendar for the trial of issues of fact with a jury, and directing that the appeal herein on behalf of defendant appellant from a judgment of the Municipal Court of the city of Rochester in favor of the plaintiff respondent be heard and determined as an issue of law. The following questions were certified: "(1) Is the appellant deprived of his constitutional right to a trial by jury if he is not permitted to have a new trial by a jury of twelve men in the County Court? (2) Does section 31 of the statutory construction law preserve to the appellant his right to a new trial in the County Court, notwithstanding the effect of chapter 754 of the Laws of 1907?" See, also, 138 App. Div. 914, 123 N. Y. Supp. 1125. Charles L. Pierce, for appellant. John W. Barrett, for respondent.

PER CURIAM. Order affirmed, with costs, on opinion of Kruse, J., below. Both questions certified answered in the negative.

CULLEN, C. J., and GRAY, HAIGHT, WERNER, WILLARD BARTLETT, CHASE, and COLLIN, JJ., concur.

LEAVITT, Appellant, v. DE VRIES, Respondent. (Court of Appeals of New York. Nov. 3, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (133 App. Div. 893, 118 N. Y. Supp. 1120), entered November 15, 1909, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an ac

Department (137 App. Div. 927, 121 N. Y. Supp. 1138), entered March 18, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for alleged malicious prosecution. Alfred L. Becker, for appellant. Eugene M. Bartlett and E. W. McIntyre, for respondent.

PER CURIAM. Judgment affirmed, with costs.

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

LINDEN, Appellant, v. FRIES, 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 (136 App. Div. 930, 120 N. Y. Supp. 1132), entered January 26, 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 damages alleged to have been sustained by plaintiff through the false representations of defendant. L. Laflin Kellogg and William K. Hartpence, for appellant.

Alexander S. Andrews and John Larkin, for respondent. PER CURIAM. costs.

Judgment affirmed, with

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

LITTLE, Appellant, v. MAYER, Respondent. (Court of Appeals of New York. May 30, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (134 App. Div. 993, 119 N. Y. Supp. 1133), entered November 24, 1909, affirming a judgment in favor of defendant entered upon a decision of the court on trial at an Equity Term in an action to enjoin the defendant from continuing the manufacture and sale of machines embodying trade

for appellant. spondent.

Nelson E. Spencer, for re- | Reeve Schley, for appellant. John D. Fearhake and James M. Gifford, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

CULLEN, C. J., and HAIGHT, WERNER, WILLARD BARTLETT, HISCOCK, and COLLIN, JJ., concur. CHASE, J., absent.

LITTLEFIELD STOVE CO., Appellant, v. CITY OF ALBANY, Respondent. (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 Third Judicial Department (130 N. Y. Supp. 1118), entered June 28, 1911, affirming a judgment in favor of defendant entered upon the report of a referee in an action to recover damages alleged to have been caused by the overflow of a sewer. The motion was made upon the grounds that the Appellate Division had unanimously decided that the findings of fact were supported by the evidence; that the exceptions were frivolous and presented no question for review and that the appeal was taken merely for purposes of delay. Arthur L. Andrews, Corp. Counsel, for the motion. John A. Delehanty, opposed.

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PER CURIAM. Order affirmed, with costs, on opinion of Ingraham, P. J., below (144 App. Div. 372, 129 N. Y. Supp. 577); first, second, and third questions certified answered in the affirmative; fourth question answered in the negative.

CULLEN, C. J., and HAIGHT, WERNER, WILLARD BARTLETT, and CHASE, JJ, concur. HISCOCK and COLLIN, JJ., dissenting.

LYNCH, Respondent, v. LACKAWANNA STEEL 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 Fourth Judicial Department (140 App. Div. 882, 124 N. Y. Supp. 1120), entered July 25, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. Evan Hollister, for appellant. Frederick S. Jackson and Edmund L. Ryan, for respondent PER CURIAM. Judgment affirmed, with

costs.

CULLEN, C. J., and GRAY, HAIGHT, VANN, WILLARD BARTLETT, and COL LIN, JJ., concur. HISCOCK, J., not voting.

lant. (Court of Appeals of New York. May LYNCH, Respondent, v. PEIRCE, Appel30, 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. 1132), entered Decemplaintiff entered upon a verdict in an action ber 31, 1909, affirming a judgment in favor of to recover for personal injuries alleged to have been sustained by plaintiff through the neghgence of defendant, his employer. Robert H. Ewell and George F. Harriman, for appellant. William J. Martin, Charles B. McLaughlin, and John Conville, for respondent.

PER CURIAM.

costs.

Judgment affirmed, with

CULLEN, C. J., and GRAY, VANN, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur.

MCCORMICK, Respondent, v. THOMPSON, Appellant, et al. (Court of Appeals of New York. May 19, 1911.) Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (143 App. Div. 972, 127 N. Y. Supp. 1130), entered March 14, 1911, affirm

LOGAN, Respondent, V. GREENWICH TRUST CO. OF GREENWICH, CONN., Appellant. (Court of Appeals of New York. Dec. 5, 1911.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (144 App. Div. 372, 129 N. Y. Supp. 577), entered May 9, 1911, which reversed an order of Special Term granting a motion to vacate a warrant of attach ment, an order purporting to revive and continue an action against defendant, and a judgment entered against defendant. The following questions were certified: "(1) Did the Supreme Court have power to make the order herein dated the 15th day of January, 1910, purporting to continue the action against the Greenwich Trust Company of Greenwich, Conn., as administrator of the goods, chattels, and credits of George P. Sheldon, deceased, and amending the summons and pleadings accordingly? (2) Did the Supreme Court have power to make the order herein dated the 15th day of January, 1910, directing service of the summons herein upon the Greenwich Trust Company of Greenwich, Conn., as administrator of the goods, chattels, and credits of George P. Sheldon, deceased, by publication or without the state? (3) Did the Supreme Court have power to make the order herein dated the 26th day of April, 1910, directing the entry of judging a judgment in favor of plaintiff entered ment herein in favor of the plaintiff and against the Greenwich Trust Company of Greenwich, Conn., as administrator of the goods, chattels, and credits of George P. Sheldon, deceased? (4) A valid attachment having been granted in this action on the ground that the defendant was a nonresident of the state of New York, and a valid levy having been made under such attachment by the sheriff of the county of New York, did the attachment fall by reason of the death of the defendant before service of the summons or the commencement of the publication thereof, where, within 30 days after the granting of the warrant of attachment, service of the summons by publication, under an order duly granted, was commenced against the defendant who had been substituted in the action in the place and stead of the deceased defendant, said substituted defendant being the personal representative of the de

upon a verdict in an action to recover damages alleged to have been occasioned plaintiff by the false representations of defendant. The motion was made upon the grounds that the exceptions were frivolous and the appeal taken for pur poses of delay only. Henry W. Williams, for the motion. Erskine C. Rogers, opposed.

PER CURIAM. Motion denied, with $10 costs.

MCEWAN BROS., Respondent, . BIL LINGS, Appellant, et al. (Court of Appeals of New York. Nov. 21, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Depart ment (138 App. Div. 915, 123 N. Y. Supp. 1127), entered May 24, 1910, affirming a judg ment in favor of plaintiff entered upon a ver dict in an action to recover upon an account

ered. M. B. Jewell, for appellant. James T. Ward, for respondent.

PER CURIAM. Judgment reversed and new trial granted, costs to abide event, because of error in admission of declarations of Whitney as to the interest of appellant Billings in oil leases and his membership in the Billings Oil Company.

CULLEN, C. J., and GRAY, HAIGHT, VANN, WILLARD BARTLETT, HISCOCK, and COLLIN, JJ., concur.

In re MACHOLDT. (Court of Appeals of New York. Oct. 24, 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (144 App. Div. 252, 128 N. Y. Supp. 1069), entered April 21, 1911, which affirmed an order of Special Term granting a motion for a peremptory writ of mandamus to compel defendant to pay a certain award theretofore made in condemnation proceedings to the petitioner. Archibald R. Watson, Corp. Counsel (Joel J. Squier, and G. E. Draper, of counsel), for appellant. Benjamin Trapnell and Joseph A. Flannery, for respondent.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and HAIGHT, VANN, WERNER, WILLARD BARTLETT, HISCOCK, and CHASE, JJ., concur.

MacKELLAR, Respondent, v. THOMPSON, Appellant. (Court of Appeals of New York. May 30, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (137 App: Div. 897, 122 N. Y. Supp. 1135), entered March 22, 1910, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action to recover upon promissory notes. Theodosius F. Stevens and Robert H. Elder, for appellant. James Garfield Purdy, for respondent.

PER CURIAM. Judgment affirmed, with

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MCMAHON, Appellant, v. SMITH et al., Respondents. (Court of Appeals of New York. June 6, 1911.) Motion for leave to withdraw an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (136 App. Div. 839, 121 N. Y. Supp. 736), entered March 11, 1910, reversing a judgment in favor of plaintiff entered upon a verdict and granting a new trial in an action to recover broker's commissions. The motion was made upon the ground that the Court of Appeals had no jurisdiction to entertain the appeal. George W. McKenzie, for the motion. Louis Ehrenberg, opposed. PER CURIAM. Motion denied and appeal dismissed, with costs and $10 costs of motion.

MCMICHAEL, Respondent, v. FEDERAL PRINTING CO., Appellant. (Court of Appeals of New York. Nov. 3, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (139 App. Div. 225, 123 N. Y. Supp. 998), entered June 27, 1910, aflirming a judg

ment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. William N. Cohen, C. H. Duell, R. W. France, and F. P. Warfield, for appellant. D-Cady Herrick, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur.

MAGILL, Respondent, v. MAGILL et al., Appellants. (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 (138 App. Div. 920, 123 N. Y. Supp. 1128), entered May 10, 1910, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to determine the legal beneficiary of the proceeds of a certain certificate of life insurance. Walter E. Warner, for appellants. Frank W. Holmes, for respondent.

PER CURIAM. Judgment affirmed, with costs.

CULLEN, C. J., and GRAY, HAIGHT, VANN, WERNER, CHASE, and COLLIN, JJ., concur.

In re MANHATTAN TERMINAL OF NEW YORK AND BROOKLYN BRIDGE IN CITY OF NEW YORK. York. Oct. 24, 1911.) (Court of Appeals of New of the Appellate Division of the Supreme Appeal from an order Court in the First Judicial Department (143 App. Div. 929, 128 N. Y. Supp. 1118), entered March 16, 1911, which affirmed an order of Special Term confirming a report of commissioners of estimate and appraisal in condemnation proceedings. See. also, 143 App. Div. 921, 130 N. Y. Supp. 1120. David Keane and Morgan J. O'Brien, for appellants. Archibald R. Watson, Corporation Counsel (Terence Farley, and Charles D. Olendorf, of counsel), for respondent.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and HAIGHT, VANN, COCK, and CHASE, JJ., concur. WERNER, WILLARD BARTLETT, HIS

MANNY, Appellant, v. WILSON, Respondent. (Court of Appeals of New York. Oct. 3. 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (137 App. Div. 140, 122 N. Y. Supp. 16), entered March 17, 1910, reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and granting a new trial in an action to recover for an alleged conversion. Edward H. Tatum, for appellant. John H. Corwin, for respond

ent.

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PER CURIAM. costs.

Motion denied, with $10

July 14, 1911, which reversed an interlocutory | Van Wyck, for the motion. George C. Lay, judgment of Special Term overruling demur- opposed. rers to the complaint and sustained such demurrers in a creditor's action against stockholders of the Newfoundland Syndicate who, it was alleged, had procured their stock, for less than par. The following questions were certified: "First. Does the complaint herein state facts sufficient to constitute a cause of action in favor of the plaintiff against any of the deSecond. Does it appear upon the face of the complaint herein that the plaintiff has not legal capacity to sue, in that suit can be brought only in the right of the trustee in bankruptcy of Newfoundland Syndicate, for the benefit of said syndicate's creditors and for the benefit of the estate in bankruptcy?" See, also, 129 N. Y. Supp. 1135. Elbridge L. Adams and Nelson S. Spencer, for appellant. Francis D. Pollak and Justus P. Sheffield, for respondents.

fendants?

PER CURIAM. Order affirmed, with costs, on opinion of Dowling, J., below. First question certified answered in the negative; second question not answered.

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

MASSA, Respondent, V. WATERTOWN ENGINE 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 Fourth Judicial Department (138 App. Div. 913, 123 N. Y. Supp. 1128), entered May 9, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for an alleged breach of contract. Edward N. Smith, for appellant. Elon R. Brown and Henry H. Babcock, for respondent.

MILLER, Respondent, v. CAMPBELL, Appellant. (Court of Appeals of New York. May 19, 1911.) Motion for leave to withdraw an appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (137 App. Div. 920, 12 affirming a judgment in favor of plaintiff enN. Y. Supp. 1137), entered March 18, 1910, tered upon an order of Special Term granting motion was made upon the ground that apa motion for judgment on the pleadings. The pellant desired to move at Special Term for leave to serve an amended and supplemental answer. Elon R. Brown, for the motion. Moses L. Littleton, opposed.

PER CURIAM. Motion granted on payment of taxable costs to date and $10 costs of motion within 20 days from the entry of this order. On failure to make such payment within the time specified, the motion is denied, with $10 costs.

In re MORSE. (Court of Appeals of New York. Oct. 24, 1911.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (129 N. Y. Supp. 1136), entered June 12, 1911, which affirmed an order of the Orange County Court (69 Misc. Rep. 29, 125 N. Y. Supp. 739), confirming the report of commissioners of appraisal appointed in a proceeding to alter a highway. Henry Bacon, for appellant. M. N. Kane, for respondent.

PER CURIAM. Order affirmed, with costs. CULLEN, C. J., and HAIGHT, WERNER, and CHASE, JJ., concur.

PER CURIAM. Judgment affirmed, with VANN, WILLARD BARTLETT, HISCOCK,

costs.

CULLEN, C. J., and GRAY, HAIGHT, VANN, WERNER, CHASE, and COLLIN, JJ., concur.

NATIONAL CONDUIT & CABLE CO., Respondent, v. COMMERCIAL UNION ASSUR. CO., Limited, Appellant. (Court of Appeals of New York. Nov. 3, 1911.) Appeal from a judgment, entered January 25, 1910, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (135) App. Div. 136, 120 N. Y. Supp. 7), which reversed a judgment in favor of defendant enjudgment in favor of the plaintiff in an action to recover upon a policy of fire insurance. Frederick B. Campbell, John F. Devlin, and Paul C. Whipp, for appellant. Clarence G. Galston and Arthur Watson, for respondent.

MEYER BROS. DRUG CO., Respondent, v. MCKINNEY et al., Appellants. (Court of Appeals of New York. Oct. 3, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (137 App. Div. 541, 121 N. Y. Supp. 845), entered March 17, 1910, affirming a judg-tered upon the report of a referee and directed ment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury in an action to recover for an alleged breach of contract. William Nottingham and Theodore R. Tuthill, for appellants. Israel T. Deyo, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

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

MIDWOOD PARK CO., Respondent, v. KOUWENHOVEN REALTY & IMPROVEMENT CO., 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 Second Judicial Department (144 App. Div. 939, 129 N. Y. Supp. 1135), entered May 22, 1911, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term (128 N. Y. Supp. 954), in an action to foreclose a mortgage. The motion was made upon the ground that the appeal was unauthorized and the Court of Appeals had no ju

PER CURIAM. Judgment affirmed, with costs, on opinion of Clark, J., below.

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NATIONAL PARK BANK OF NEW YORK, Respondent, v. BILLINGS et al., Appellants. (Court of Appeals of New York. Oct. 24. 1911.) Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (144 App. Div. 536, 129 N. Y. Supp. 846), entered May 19, 1911, which modified and affirmed as modified an order of Special Term granting a motion for judgment upon the pleadings in a judgment creditor's action to secure the sale of an alleged interest of the defendant Billings in his father's estate to satisfy a judg ment. The following questions were certified: "First. May the court upon motion, after is

complaint, give judgment upon the pleadings? | Guernsey Price, for appellant. Nelson L. Second. Does the complaint state facts suffi- Keach and Louis Steckler, for respondent. cient to constitute a cause of action?" J. CulPER CURIAM. Judgment affirmed, with bert Palmer, for appellants. C. H. Payne and costs. Louis F. Doyle, for respondent.

PER CURIAM. Order affirmed, with costs, on opinion of Miller, J., below, and questions certified answered in the affirmative.

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NEW HARTFORD COTTON MFG. CO., Respondent, v. LOWENSTEIN et al., Appellants. (Court of Appeals of New York. Nov. 21, 1911.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (136 App. Div. 907, 120 N. Y. Supp. 1137), entered December 17, 1909, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for an alleged breach of contract of sale. William Rubin and Jacob Klein, for appellants. Henry J. Cookinham, for respondent.

PER CURIAM. Judgment affirmed, with

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NEW YORK STEAM CO., Respondent, V. RYAN et al., Appellants. (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 (137 App. Div. 941, 122 N. Y. Supp. 1138), entered April 13, 1910, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for labor and materials alleged to have been furnished. William L. Bowman, for appellants. Frederick E. Fishel, for respondent.

PER CURIAM. costs.

Judgment affirmed, with

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

NEYLAN, Respondent, v. JAMES REILLY'S SONS 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 First Judicial Department (136 App. Div. 938. 121 N. Y. Supp. 1140), entered February 14, 1910, modifying and affirming as modified a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negli

CULLEN, C. J., and GRAY, VANN, WERNER, HAIGHT, CHASE, and COLLİN, JJ., concur.

OGILBY et al., Appellants, v. HICKOK, Respondent. (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 (144 App. Div. 61, 128 N. Y. Supp. 860), entered April 27, 1911, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the answer in an action of partition. The following question was certified: "Is the further and separate defense demurred to contained in the answer to the amended complaint herein sufficient in law upon the face thereof?" See, also, 129 N. Y. Supp. 1137. Arthur O. Townsend and Hamilton Rogers, for appellants. Ralph P. Buell, for respondent.

PER CURIAM. Order affirmed, with costs, and question certified answered in the aflirmative.

CULLEN, C. J., and GRAY, HAIGHT, WERNER, WILLARD BARTLETT, CHASE, and COLLIN, JJ., concur.

OPENHYM et al., Respondents, v. CHAMBERLIN-JOHNSON-DU BOSE CO., Appellant. (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 (137 App. Div. 919, 121 N. Y. Supp. 1141), entered March 16, 1910, affirming a judgment in favor of plaintiffs entered upon a decision of the court at a Trial Term, a jury having been waived, in an action to recover for goods sold and deMason, and William L. Ransom, for appellant. livered. Robert Louis Hoguet, Herbert D. John A. Garver and Carl A. Mead, for respondents. Judgment affirmed with

PER CURIAM. costs.

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

Respondent, et al. O'REILLY, Appellant, v. GALLAGHER, (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. 907, 123 N. Y. Supp. 1132), entered May 25, 1910, affirming a judgment in favor of defendant entered upon a decision of the court on trial at Special Term in an action to foreclose a mechanic's lien. Adrian T. Kiernan, for appellant. Louis B. Hasbrouck and Frederick J. Moses, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

CULLEN, C. J., and VANN, WERNER, WILLARD BARTLETT, HISCOCK, CHASE, and COLLIN, JJ., concur.

BEN

OTTINGER et al., Appellants, v. NETT, Respondent, et al. (Court of Appeals of New York. Oct. 24, 1911.) Appeal by permission, from an order of the Appellate Division of the Supreme Court in the First Judicial Department (144 App. Div. 525, 129 N. Y. Supp. 819), entered May 19, 1911, which reversed an interlocutory judgment at Special

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