App. Div.] SECOND DEPARTMENT, JUNE TERM, 1903. tingent only upon the contemplated sale or a successful reorganization of the company. Prior to the demand upon the defendants and before the commencement of this action Schroeder had carried out the terms of that agreement of sale, for in February, 1898, he had advanced $350 to Drew for his expenses to Colorado, and on the 25th of July, 1899, he paid the Drew note in the hands of the defendants; under the terms of the contract he had until the 1st of January, 1900, to pay the balance of the consideration; this suit was brought on the 3d day of August, 1899. Armed with this bill of sale and with the order given by Drew upon Schroeder and Company for the delivery of the stock, Schroeder came into possession of the stock on the 25th of July, 1899, lawfully and as the true owner thereof, having taken title from the plaintiff before her demand and tender and before the commencement of this action. The plaintiff, therefore, had no title upon which she might base an action for conversion of the stock by the defendants. Such is the view we take of the evidence; the jury should have given it the same effect. The judgment and order must, therefore, be reversed and a new trial granted upon the terms usual in such cases. Goodrich, P. J., Hirschberg and Jenks, JJ., concurred. John B. Lord, as Trustee in Bankruptcy of the Estate of William F. Miller, Bankrupt, and of the Estate of the Franklin Syndicate, Incorporated, Bankrupt, Respondent, v. Henry A. Seymour and Others, Defendants, Impleaded with Frederick W. Johnson and Alfred Hayes, Jr., as Assignee of Seymour, Johnson & Co., Appellants.-Judgment affirmed, with costs, on the opinion of Mr. Justice Wilmot M. Smith at Special Term. Leave to appeal to the Court of Appeals will be granted on application. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred. The following is the opinion of Mr. Justice Wilmot M. Sinith delivered at Special Term: WILMOT M. SMITH, J.: I find that the money and bonds which defendant Robert A. Ammon placed in the hands of Seymour, Johnson & Co. had been obtained by defendant Miller from various persons under circumstances which the Court of Appeals has decided constituted larceny:* that the money was given by Miller to Ammon as his agent to hold for Miller's benefit. I decide that it is immaterial whether the legal title to the money passed to Miller or remained in the persons who placed it in his hands. It belongs to his creditors, unless it came into the hands of a bona fide owner for value. I find that Robert A. Ammon was not a partner of Seymour, Johnson & Co; that the money contributed by him was not contributed as a partner, but was a loan for which the firm gave to Ammon their notes, and that the arrangements by which Ammon received a part of the profi s of the firm was made that Ammon might receive a bonus for his personal benefit. The creditors of Miller are not estopped from claiming their share of the assets of the firm of Seymour, Johnson & Co. because of representations made by the firm to its customers that contributions had been made to the capital of the firm by a special partner, because no such contributions were made; this statement was false. The plaintiff can maintain this action because the relief sought could not otherwise be obtained. The plaintiff is entitled to judgment for the relief demanded in the complaint, with costs. John W. Lyon and Frank Lybolt, Respondents, v. Ransom Wilcox, Appellant.-Order of the County Court of Orange county denying motion for new trial on the ground of surprise and newly-discovered evidence affirmed, with cos.s. on the opinion of the county judge. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. The following is the opinion of the county judge: BEATTIE, J. The effect of all the evidence offered by the defendant was that the plaintiffs had agreed to prosecute an action in his favor against the Port Jervis and Monticello Railroad Company for twenty per cent upon the amount of the recovery as their compensation for services rendered. The action was settled before trial. The defendant claims that the understanding was that, upon the settlement being made, he should have $500 net, and that the whole of the plaintiffs' compensation for their services should be paid by the railroad company, if paid at all. The plaintiffs claimed that there was no such agreement, but that the defendant was to pay them a reasonable amount for their services, in addition to such amount as they could get from the railroad company as their costs and disbursements. The case was submitted to the jury in such manner that if they had believed the testimony in behalf of the defendant that he was to have $500 net, their verdict would have been for the defendant. The case has been twice tried and there can be no question that ordinary diligence would have developed what is now claimed to be newly-discovered evidence in favor of the defendant. Mr. Godeffroy was the presi dent and general superintendent of the railroad company, and the claim, as paid, was audited by Mr. Cox, an employee of the company. There was no apparent reason why they should not l:ave been deemed as important witnesses for the defendant as Mr. Lillie, the treasurer of the company, or Mr. Parshall, its attorney, and, like them, produced as witnesses upon the trial to testify as to their knowledge of the whole transaction. Whether the $300 paid by the railroad company, to the plaintiffs as attorneys, included claims other than their claim for costs and disbursements in the Wilcox action, does not seem to me to be important. The defendant himself entered into negotia tions with the railroad company for the settlement of his claim, and agreed to accept $500. If, as the jury have found, he was still to pay his attorneys twenty per cent upon the amount received, it does not avail him that the railroad company paid to the attorneys $300 additional. If the plaintiffs had made the settlement and had concealed from the defendant that $800 was to be paid by the railroad company, then the question of the items or charges which involved the payment of $300 more than was paid to the defendant would be of importance. I think the verdict of the jury as to the weight of evidence was conclusive, and that the motion for a new trial should be denied, with costs. Lafayette L. Burdick, Respondent, v. Mary E. Burdick, Appellant, and Laura V. Stickley, Respondent.- Reargument ordered for Wednesday, June 10, 1903. Present- Goodrich, P. J., Hirschberg, Jenks and Hooker, JJ. Henry Page, Respondent, v. Bernard Naughton and Daniel F. McMahon, Appellants.- Judg ment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to re *See People v. Miller (169 N. Y. 339).- [REP. SECOND DEPARTMENT, JUNE TERM, 1903. duce the recovery of damages to the sum of $6,000 and extra allowance proportionately, in which case the judgment as modified is unanimously affirmed, without costs of this appeal to either party. No opinion. Present Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. Phoebe Schaible. Respondent, v. Amelia Tetzloff, Appellant.-Judgment unanimously affirmed, with costs. No opinion. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Curtis Brothers Lumber Company, Respondent, v. George P. Fiske, Appellant. - Judgment of the Municipal Court affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. John Langley, Respondent, v. William W. Rouss, as Executor, etc., of Charles Broadway Rouss, Deceased, Appellant.- Judg ment of the Municipal Court affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. William A. Williams, Appellant, v. The Brooklyn Heights Railroad Company, Respondent. -Order setting aside verdict affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. Benjamin F. Williams, Appellant, v. The Brooklyn Heights Railroad Company, Respondent. Judgment and order unanimously affirmed, with costs. No opinion, Present Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ. Rosa Serwer, Respondent, v. Morris Serwer, Appellant.-Judgment and order reversed and new trial granted, costs to abide the event, unless within twenty days plaintiff stipulate to reduce recovery of damages to the sum of $3,000, and extra allowance proportionately, in which case the judgment as inodified is affirmed, without costs of this appeal to either party. No opinion. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Sam Saffier, Appellant, v. Norman S. Dike, as Sheriff, etc., Respondent.- Motion denied. Present- Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. Pontus I. Thompson, Respondent, v. Emma A. Richardson and Others, Defendants, Impleaded with Ellen A. Raynor and Frank E. Linn, Appellants. (Action No. 1.)-Judg. ment affirmed, with costs. No opinion. oodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Pontus I. Thompson, Respondent, v. Emma A. Richardson and Others, Defendants, Impleaded with Ellen A. Raynor and Frank E. Linn, Appellants. (Action No. 2.)-Judg ment affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Andrew O'Brien, Respondent, v. James P. Silo, Appellant.- The court desires to see counsel in this case. Present-Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ. The People of the State of New York ex rel. James H. Baker, Respondent, v. William Miller Collier and Others, Constituting the State Civil Service Commission, Appellants. The People of the State of New York ex rel. Joseph Daniels, Respondent, v. William Miller Collier and Others, Constituting the State Civil Service Commission, Appellants. The People of the State of New York ex rel. Martin Murphy, Appellant, v. William Miller Collier and Others, Constituting the State Civil Service Commission, Respondents. The People of the State of New York ex rel. [Vol. 85. Albert E. Meyer, Appellant, v. William Miller Collier and Others, Constituting the State Civil Service Commission, Respondents. The People of the State of New York ex rel. Charles Colne, Appellant, v. William Miller Collier and Others, Constituting the State Civil Service Commission, Respondents. The People of the State of New York ex rel. William G. Morgan, Appellant, v. William Miller Collier and Others, Constituting the State Civil Service Commission, Respondents (Cases decided April 24, 1903. Reported in 82 App. Div. 644.) The court desires to see counsel in these cases. Present - Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. John C. Whitehead, Appellant, v. Homer Lee, Respondent.- Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. Ethel Eyre Valentine and Others, Respondents, v. Benjamin E. Valentine, Appellant. (No. 1.) -Judgment affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Ethel Eyre Valentine and Others, Respondents, v. Benjamin E. Valentine, Appellant. (No. 2.) -Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Ocean Causeway, of Lawrence, Long Island, Appellant, v. Frederick L. Gilbert, Respondent. Judgment affirmed, without costs, on the authority of Ocean Causeway v. Gilbert (54 App. Div. 118). Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. In the Matter of the Judicial Settlement of the Accounts of William Clement Putnam and George P. Putnam, Executors and Trustees of and under the Last Will and Testament of Mary P. Bull, Deceased.- Appeal withdrawn by consent, without costs. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. In the Matter of the Judicial Settlement of the Accounts of William Clement Putnam and George P. Putnam, Executors and Trustees of and under the Last Will and Testament of Mary P. Bull, Deceased.- Appeal withdrawn by consent, without costs. PresentGoodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. costs. Annie Finnerty, Respondent, v. Joseph Walker, costs. Isaac McMunn Holly, Appellant, v. Frank T. Hill, Respondent.- Judgment of the Municipal Court affirmed by default, with costs. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. Samuel Miller, Respondent. v. Peter Malanora and Others, Appellants.- Judgment of the Municipal Court affirmed by default, with costs. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred. William H. Downs, Appellant, v. Elmira Bridge Company, Respondent. - Motion for reargument denied. Motion for leave to appeal to the Court of Appeals granted. App. Div.] Present SECOND DEPARTMENT, JUNE TERM, 1903. Bartlett, Woodward, Hirschberg, | Jenks and Hooker, JJ. Caroline B. Hudler, Respondent, v. Metropolitan Street Railway Company, Appellant.. Motion denied. Present- Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. Frederick P. Schmidt, Respondent, v. Interurban Street Railway Company, Appellant. Motion for reargument denied. Present- Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. Edward A. Cox, Appellant, v. John Halloran, Respondent. -Order resettled so as to recite that the reversal was upon the facts as well as the law; application otherwise denied. Present Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. Charles A. Lundine, Appellant, v. Alexander J. A. Callaghan, Respondent. Motion denied. Present - Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. William N. Dykman and The Brooklyn Trust Company, as Executors, etc., Appellants, v. United States Life Insurance Company, Respondent. -Motion for leave to appeal to the Court of Appeals granted. Present Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. Walter C. Perkins, Respondent, v. James B. Smith, Appellant. - Motion denied. Present Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. Apollonia Warth, Trading and Doing Business under the Firm Name and Style of Albin Warth, Respondent, v. Simon Liebovitz, Appellant.-Motion denied; the leave sought for in this application does not seem to be necessary. Present- Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. Jacob Levy, etc., Respondent, v. Grove Mills Paper Company, Appellant.- On the trial of this action the plaintiff recovered a verdict, which was set aside by the trial court. The plaintiff's exceptions were ordered to be heard in the first instance at the Appellate Division, and upon the argument thereof in this court they were sustained, and we made an order directing that judgment should be entered in favor of the plaintiff upon the verdict. Upon that appeal only the plaintiff's exceptions were before us. The defendant has now appealed from the judgment, and the plaintiff moves to dismiss its appeal on the ground that it has no right to a second review of the case. It seems to us, however, that this is not a second review. defendant's exceptions have never before this court, and it is entitled to be heard upon them now upon an appeal from the judgment. Motion denied. PresentBartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. JJ. The been Alzire A. Flick, as Administrator, etc., Respondent, v. William W. Penfield, Appellant.Motion denied. Present-- Bartlett, Woodward, Hirschberg, Jenks and Hooker, The People of the State of New York ex rel. James J. Miller, Respondent, v. Thomas Sturgis, as Fire Commissioner, etc., Appellant. Application to resettle order denied. Present-Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. Richard Sandiford, Appellant, v. The Town of Hempstead. Respondent. Carman Frost and Amanda Frost. his Wife, Appellants.--Motion to dismiss appeal granted, unless within five days the appellants pay the respondent ten dollars costs, and stipulate to have the appeal papers prepared and served and the case ready for argument at the next term of this court; if these conditions are complied with the motion to dismiss the appeal is denied, without costs. Present Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. James Nick, Appellant, v. Louise Donovan and John Donovan, Respondents.- Judgment of the Municipal Court reversed on argument, and new trial ordered, costs to abide the event, on the ground that the court erred in holding that it had not the power to allow the plaintiff to reopen his case under the circumstances disclosed by the record. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. William J. Smith, Respondent, v. Harry G. Barber, Appellant, Impleaded with Pansy B. Pritchard.- Order of reference reversed on argument, with ten dollars costs and disbursements on the authority of McAleer v. Sinnott (30 App Div. 318), and motion for reference denied, without costs. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Charles Brookes, as Receiver of the Property, etc., of Theodore De Cline, a Judgment Debtor, Respondent, v. Frederick Lorenzen, Appellant.-Judgment of the County Court of Westchester county affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward and Jenks, JJ., concurred; Hirschberg, J., not voting. Johanna Marko, as Administratrix, etc., Respondent, v. Samuel Holzschlag, Appellant. -Judgment of the Municipal Court affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred. Royal Bread Company, Respondent, v. New York and Queens County Railway Company, Appellant. Judgment of the Municipal Court affirmed, with costs. No opinion. Bartlett, Hirschberg and Jenks, JJ., concurred; Goodrich, P. J., and Woodward, J., dissented. Maurice Ryan, Respondent, v. Charles Reimer, Appellant. Judgment of the Municipal Court affirmed, with costs. No opinion. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. George Gibbs, Respondent, v. Jacob Herman, Sheriff of Orange County, Appellant.- Judgment and order affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., cou curred. David Mayer Brewing Company, Appellant, v. Michael Manning, Respondent.-- Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. William Simis, as General Guardian of William Simis and Wilfred Simis, and William Simis and Warren S. Sillcocks, as Executors of Mary O. Simis, Deceased, Plaintiff, v. Charlotte White, Appellant, Impleaded with Others, Defendants. Henry J. Coggeshall, as Receiver of the Mutual Benefit Loan and Building Company, Respondent. - Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. Erie Railroad Company, Plaintiff, v. Mary Anne Stewart and Others, Defendants.Motion to confirm referee's report granted, with ten dollars costs in all respects, except as to the item of one hundred dollars, expert fee, which item is disallowed; form of order to be settled before Mr. Justice Hooker before the nineteenth instant. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. In the Matter of the Judicial Settlement of the Account of Lizzie Reichert, as Sole Surviving Administratrix of Charles G. Reichert, SECOND DEPARTMENT, June Term, 1903. Deceased. George L. Reichert, Appellant; | Lizzie Reichert, Adininistratrix, and Others, Respondents.- Decree of the Surrogate's Court of Suffolk county affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. In the Matter of the Judicial Settlement of the Account of Lizzie Reichert, as Administratrix of Charles G. Reichert, Deceased. George L. Reichert, Appellant; Lizzie Reichert, Administratrix, and Thadeuse M. Reichert, Respondents.- Order settling case on appeal affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. Ruth E. A. Dickover, an Infant, etc., Respondent, v. John S. McGillivray, Appellant.Judgment of the Municipal Court affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. The Edison Electric Illuminating Company of Brooklyn, Respondent, v. James A. Logan, Appellant. Judgment of the Municipal Court affirmed, with costs. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. Catherine McGee, as Administratrix, etc., of John J. McGee, Appellant, v. The Barber Asphalt Paving Company, Respondent.Judgment affirmed, with costs. No opinion. Goodrich, P. J., Bartlett and Jenks, JJ., concurred; Hirschberg and Hooker, JJ., dissented. In the Matter of the Guardianship of the Person of Caroline Gladys Coddington, an Infant. Andrew C. Coddington, Appellant: Louise A. Coddington, Present Guardian of the Person of Caroline Gladys Coddington, and Another, Respondents. - Örder modified by allowing costs and disbursements of proceedings on accounting and one hundred and fifty dollars counsel fee instead of fifty dollars, and as modified affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Foodward, Jenks and Hooker, JJ., concurred. Charles Goldstein, Respondent. v. Hyman M. Shulman and Others, Appellants.- Order reversed, with ten dollars costs and disbursements, on the authority of Goldstein V. Shapiro, (ante, p. 83.) Goodrich, P. J., Bartlett, Woodward, Jenks and Hooker, JJ., concurred. The People of the State of New York ex rel. Frank Cain, Respondent, v. William Miller Collier and Others, Constituting the State Civil Service Commission, Appellants.- Or der reversed, without costs. (See People ex rel. Sims v. Collier, 175 N. Y. 196.) Goodrich, P. J., Bartlett, Woodward, Jenks and Hooker, JJ., concurred. George Fleer and Henry Fleer, etc., Respondents, v. James A. Cody and Others, Composing the Firm of Cody Brothers, Impleaded with Others, Appellants, and the City of New York, Respondent.-Judgment reversed and new trial granted, costs to abide the final award of costs, on the authority of Vollkommer v. Cody (ante, p. 57). Goodrich, P. J., Bartlett, Woodward, Jenks and Hooker, JJ., concurred. Andrew R. Baird. Respondent, v. James A. Cody and Others. Composing the Firm of Cody Brothers, Impleaded with Others, Appellants, and the City of New York Respondent. Judgment reversed and new trial granted, costs to abide the final award of costs, on the authority of Vollkommer v. Cody (ante, p. 57). Goodrich, P. J., Bartlett, Woodward, Jenks and Hooker, JJ., concurred. [Vol. 85. Frank Bayerdoerfer, Respondent, v. Leopold A. Weill and Mertil Luikert, as Trustees, and Rosalie L. Hill, Appellants. Order affirmed, with ten dollars costs and disbursements. No opinion. Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred. Mary Agnes O'Donohue and Isabella Amy, Respondents, v. John F. Cronin and Newbold T. Lawrence, as Executor of and Trustee under the Last Will and Testament of Newbold Lawrence, Deceased, Appellants. -Judgment and orders affirmed, with costs, on the authority of O'Donohue v. Cronin (62 App. Div. 379). Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ., concurred. Joseph L. Schwimer, Respondent, v. The Manhattan Railway Company, Appellant.— Judgment and order unanimously affirmed, with costs. No opinion. Present-Goodrich, P. J., Bartlett, Woodward, Hirschterg and Hooker, JJ. The People of the State of New York ex rel. John Palmieri, Relator, v. Josiah T. Marean, one of the Justices of the Supreme Court of the State of New York, Respondent.- Reargument ordered upon the question whether the proceedings must not be reviewed by appeal instead of by certiorari. Case set down for Wednesday, June seventeenth. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Jenks, JJ. John F. Heisenbuttel and Others. Respondents, v. Henry T. Beckman and Others, Appellants. - Judgment of the Municipal Court affirmed, with costs. No opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. No Mary E. Connell, Respondent, v. William F. Connell, Appellant. -Order affirmed, with ten dollars costs and disbursements. opinion. Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ., concurred. Barnard L. Steefel and Joseph L. Steefel, Appellants, v. Jacob Rothschild, Respondent. - Judgment affirmed on argument, with costs, on the authority of Steefel v. Rothschild (64 App. Div. 293). Goodrich, P. J., Woodward, Hirschberg and Hooker, JJ., concurred. Charles Harriman and Another, Appellants, v. The City of Yonkers, Respondent. - Motion to resettle order granted. Present-Goodrich, P. J., Woodward, Hirschberg, Jenks and Hooker, JJ. Sylvester L. Malone, as Administrator, etc., Respondent, v. Saints Peter and Paul's Church, Brooklyn, E. D., Appellant. Motion denied. Present- Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ. In the Matter of the Application of Patrick W. Cullinan, as State Commissioner of Excise. for an Order Revoking and Canceling Liquor Tax Certificate No. 3,614, Issued to Joe Kray; and six other cases. - Order settled and signed. Present Goodrich, P. J., Bartlett, Woodward, Hirschberg and Hooker, JJ. The Queens County Water Company, Appellant, v. Robert Grier Monroe and Another, Respondents. - Motion to resettle order denied. Present - Goodrich, P. J., Bartlett, Jenks and Hooker, JJ. George Wallace, Appellant, v. William H. Jones and Others, Respondents.- Motion denied. Present - Goodrich, P. J., Bartlett, Jenks and Hooker, JJ. Jane M. Fisk, Respondent, v. May C. G. Ford, Appellant.- Judgment affirmed. with costs. No opinion. Goodrich, P. J., Bartlett, Hirschberg, Jenks and Hooker, JJ., concurred. John W. Lyou and Frank Lybolt, Respondents, v. Ransom Wilcox, Appellant.- Judgment of the County Court of Orange county App. Div.] THIRD DEPARTMENT, JUNE TERM, 1903. affirmed, with costs. No opinion. Good- In the Matter of the Petition of Patrick W. of the State of New York, Respondent, for an Order Revoking and Canceling Liquor Tax Certificate No. 4.171, Issued to Agnes McCue, Appellant. Order affirmed, with ten dollars costs and disbursements, upon the opinion of Mr. Justice Marean at Special Terin. (Reported in 39 Misc. Rep. 636.) Goodrich, P. J., Woodward, Hirschberg and Hooker, JJ., concurred. THIRD DEPARTMENT, JUNE TERM, 1903. Jacob W. Webb, Appellant, v. Nelson M. Parks, Respondent.-Judgment reversed and new trial granted, with costs to appellant to abide event.-Appeal by the plaintiff from a judgment of the County Court of Franklin county, entered in the clerk's office of said county on the 29th day of December, 1902, dismissing the plaintiff's complaint as upon a nonsuit. SMITH, J. The plaintiff and one W. E. Seaver were the owners as tenants in common of certain property upon which was a butter tub factory. Prior to 1900 the defendant and one Mrs. Bliss were copartners in the manufacture and sale of butter tubs, doing business under the name of Bliss & Parks. At that time J. E. Bliss, representing Mrs. Bliss of said firm, rented from W. E. Seaver his undivided half interest in said factory, and the defendant Parks rented from the plaintiff his undivided half interest for the year 1900. Thereupon the firm of Bliss & Parks proceeded during the year 1900 to manufacture tubs as a part of the firm business. Prior to December 31, 1900, at which time the said lease was to expire, plaintiff wrote to the defendant a letter in response to a letter from the defendant, saying he could have his interest in the premises another year for the sum of $115 payable in advance, or $125 payable at the end of the year. To this letter no response was made by the defendant. Plaintiff claims, however, that the defendant continued to occupy the premises after the expiration of his lease for 1900, and thereby became liable for the rent under the terms as stated in his letter. This case was tried in the Justice's Court where the plaintiff recovered judgment for $90. It was appealed to the County Court for a new trial, and upon that trial the county judge directed a nonsuit against the plaintiff upon the ground, as stated by him, that there was no proof of any occupancy by the defendant during the year 1901. In this ruling we think the learned county judge was in error. Certain evidence tending to show the occupancy in 1901 by J. E. Bliss in behalf of the partnership was rejected by the County Court as not pleaded. Enough appears in the case, however, to show that J. E. Bliss occupied the premises in 1901 representing his wife's interest in the partnership. His acts, therefore, in the partnership business were, as matter of law, acts done in behalf of both partners, and his occupancy in the conduct of the partnership business was the occupancy both of his wife, whom he represented, and of his wife's partner, this defendant. It was apparently the same Occupancy as that which existed in 1900, which was not surrendered in any way by this defendant at the expiration of the lease for the year 1900. I am unable to see how there could be a surrender of the premises at the expiration of the year 1900 with out an abandonment by the partnership. In any event, one of the partners could not thereafter hold the occupancy for the same purpose for which it was held in 1900, and claim therefrom an abandonment of the occupancy of the other partner under a lease of an undivided interest. The judgment of the County Court must, therefore, be reversed and a new trial granted. All concurred. In the Matter of the Petition of Fred. L. Ryon, Respondent, for an Order Revoking and Canceling Liquor Tax Certificate No. 30,326, Issued to John P. Auchmoody, Appellant.- Order unanimously affirmed, with costs. Appeal by John P. Auchmoody from an order of the county judge of Ulster county, dated the 28th day of November, 1902, and entered in the office of the clerk of the county of Ulster on that day revoking and canceling liquor tax certificate No. 30,326 issued to the said John P. Auchmoody. CHASE, J.: On the 15th day of May, 1902, John P. Auchmoody made application for a liquor tax certificate to traffic in liquors at a hotel in Clintondale, in the county of Ulster, in which application statements were made by him in the form of questions and answers, included among which are the following: 20. Does the applicant intend to carry on a bona fide hotel on such premises? Yes." "25. Does such building contain at least ten bedrooms above the basement, exclusive of those occupied by the family and servants, each room properly furnished to accomodate lodgers and separated by partitions at least three inches thick, extending from floor to ceiling, with independent access to each room by a door opening into a hallway, each room having a window or windows not less than eight square feet of surface opening upon a street or open court, light shaft or open air, and each having at least eighty square feet of floor area, and at least six hundred cubic feet of space therein * #? No." "26. Does such hotel conform to all the requirements set forth in the statement last above, except that the number of bedrooms therein for guests is not less than six * * *? Yes." A liquor tax certificate was prepared and issued to him by the county treasurer of the county of Ulster. The particular character of the traffic in liquors is determined by the application. The application and certificate must be interpreted together. (Matter of Barnard, 48 App. Div. 423; Matter of Cullinan [Campbell cert.] 39 Misc. Rep. 646.) On or about the 30th day of August, 1902. Fred. L. Ryon, a citizen of the State of New York, commenced this proceeding to have said liquor tax certificate revoked and canceled on the grounds therein stated, among others that material statements in the application of the holder of such certificate were false, and that provisions of the Liquor Ta Law* had been violated at the place designated in said certificate as the place *Laws of 1896, chap. 112 as amd.— [REP. |