THIRD DEPARTMENT, JUNE TERM, 1903. 1778% Sq. ft. 383 1 7-10 6-10 7-2 53 2 7-10 6-10 7-2 53 883 3 7-10 6-10 7-2 53 383 4 6-10 9-3 7-2 63 5 6-10 7-5 7-2 75 453 50 363 525 7 7-7 7-10 7 (sloping ceiling) 59 372 Not one of the rooms has the floor area or contains the number of cubic feet of space required by the statute,* or as stated in the application. The average floor space of the six largest rooms is sixty feet, and the average cubical contents four hundred and twenty-three feet. The statement of the applicant in regard to the rooms was neither technically nor substantially true. As bearing upon the good faith of the applicant in obtaining what is commonly known as a hotel license," it appeared that in July his register of guests consisted of a slip of pa per. It was produced at the request of said special agents and it contained but two names. Auchmoody stated that they were guests of the hotel and no claim was made by him that the hotel had entertained any other guests since it opened. Witnesses were produced who testified that on Sunday, May 25, 1902, the windows of the room in which liquor was sold and kept for sale were wholly covered by screens, curtains and shades. Witnesses were also produced who testified that said windows were not covered by screens, curtains and shades on that day, but the county judge found that all the material allegations contained in the petition were true. The findings that material statements in the application were false and that the applicant had violated the Liquor Tax Law, as stated, are sustained by the evidence, and the order should be affirmed, with costs. Fred Bates, Appellant, v. James Dubben, Respondent.-Judgment unanimously affirmed, with costs. No opinion. Harry E. Bicknell and Others, Appellants, v. William H. Gardner, Respondent.- Judgment and order unanimously affirmed, with costs. No opinion. Jabez Clews, as Administrator, etc., of William J. Clews, Deceased, Appellant, v. The Union Bag and Paper Company, Respondent.Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred. Louie A. Copeland, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.-Judgment and order affirmed, with costs. No opinion. All concurred. Houghton, J., not sitting. General Electric Company, Respondent, v. National Contracting Company, Appellant. Judgment unanimously affirmed, with costs. No opinion. [Vol. 85. William L. Hall and Others, Respondents, v. R. A. Whytlaw Son & Company, Appellant. Order affirmed, with ten dollars costs and disbursements. No opinion. All concurred. Mary C. Harris, Appellant, v. Brodie Brin and George Brown, Respondents.- Judgment unanimously affirmed, with costs. No opinion. John F. Holloway and James N. Holloway, Respondents, v. Charles F. Horstmann, Appellant. Judgment unanimously affirmed, with costs. No opinion. Henry H. Jackson and Others, as Executors of and Trustees under the Last Will and Testament of Peter A. H. Jackson, Deceased, Suing on Behalf of Themselves and All Other Creditors of James M. Smith, Deceased, Appellants, v. Minna R. Pollock and Julia B. Foster, Individually and as Executrices, etc., of Emeline S. Mcllhargy, Deceased, Respondents, Impleaded with Wright Smith, as Administrator, etc., of James M. Smith, Deceased, Defendant.-Order affirmed, with ten dollars costs and disbursements, No opinion. Henry H. Jackson and Others, as Executors of and Trustees under the Last Will and Testament of Peter A. H. Jackson, Deceased, Suing on Behalf of Themselves and All Other Creditors of James M. Smith, Deceased, Appellants, v. Minna R. Pollock and Julia B. Foster, Individually and as Executrices, etc., of Emeline S. Mellhargy, Deceased, Respondents, Impleaded with Wright Smith, as Administrator, etc, of James M. Smith, Deceased, Defendant. - Judgment unanimously affirmed, with costs. No opinion. James M. Jones, Respondent, v. John A. Fairchild and Frank M. Fairchild, Appellants. Judgment affirmed, with costs. No opinion. All concurred. Louis H. Joy, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Judgment and order affirmed, with costs. No opinion. All concurred, except Parker, P. J., and Houghton, J., dissenting. Peter Keller, Appellant, v. Gilman M. Herkimer and William Phelps, Respondents. Judgment and order unanimously affirmed, with costs. No opinion. In the Matter of the Petition of the Mayor, Aldermen and Commonalty of the City of Schenectady, under Section 62 of the Railroad Law and Chapter 376 of the Laws of 1902, as to Changing Certain Grade Crossings of the New York Central and Hudson River Railroad and the Railroad Operated by the Delaware and Hudson Company in that City from Grade to Undercrossings.- Motion denied. Joseph H. McClellan, Respondent, v. Robert S. Dalzell and Thomas Burke, Appellants. Judgment unanimously affirmed, with costs. No opinion. Emma E. Morrell, as Administratrix, etc., of William R. Morrell, Deceased, Appellant, v. Boston and Maine Railroad, Respondent.Judgment affirmed, with costs. No opinion. All concurred, except Smith, J., dissenting. Margaret B. Mott and Mary H. Bradley, Appellants, v. John D. Spicer and Mrs. John Doyle, Respondents. -Judgment and order unanimously affirmed, with costs. No opinion. The People of the State of New York ex rel. New York City and Westchester Railway Company v. The Board of Railroad Commis of 1897, chap. 312.— [Rep. * Laws of 1896, chap. 112, § 31 as amd. by Laws +Laws of 1890, chap. 565, § 62, added by Laws of 1897, chap. 754, and amd. by Laws of 1899, chap. 359.- [REP. App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1903. sioners of the State of New York and Ashley W. Cole and Others, Being the Members Thereof, and the New York and Port Chester Railroad Company. - Application denied. The People of the State of New York ex rel. Brooklyn Union Elevated Railroad Company v. Erastus C. Knight, as Comptroller of the State of New York.- Determination of the Comptroller confirmed, with fifty dollars costs and disbursements. No opinion. All concurred. The People of the State of New York ex rel. Coney Island and Gravesend Railway Company v. Erastus C. Knight, as Comptroller of the State of New York.-Determination of the Comptroller confirmed, with fifty dollars costs and disbursements. No opinion. All concurred. The People of the State of New York ex rel. Nassau Electric Railway Company v. Erastus C. Knight, as Comptroller of the State of New York.- Determination of the Comptroller confirmed, with fifty dollars costs and disbursements. No opinion. All concurred. The People of the State of New York ex rel. Eastmans Company of New York, Relator, v. William J. Morgan, as Comptroller of the State of New York, Respondent.- Determination of the Comptroller confirmed, with fifty dollars costs and disbursements. No opinion. All concurred, except Parker, P. J., dissenting. The People of the State of New York, Appel lant, v. William H. Rupert, as Sheriff, etc., Respondent.-Judgment unanimously affirmed, with costs. No opinion. Houghton, J., not sitting. The People of the State of New York, Respond- William N. Scouller, Respondent, v. George M. costs. FOURTH DEPARTMENT, JUNE TERM, 1903. John Scanlon, Respondent, v. The Village of Weedsport, Appellant.- Motion for reargument denied. Motion for leave to appeal to the Court of Appeals granted. - Motion for reargument, or for leave to appeal to Court of Appeals upon questions to be certified to that court, after an unanimous affirmance of a final judgment and order.— ADAMS, P. J.: In determining the appeal from the judgment and order we were of the opinion that this case presented simply a question of fact, and that within wellsettled principles of law we ought not to interfere with the verdict rendered by the jury, inasmuch as the evidence was quite sufficient to uphold that verdict. It is true that the snow upon the sidewalk in question was the result of an unusually severe and prolonged storm, but it nevertheless appeared that many other walks in that immediate locality were entirely cleared of the snow which had fallen within a reasonable time after the storm had subsided, and that while some effort was made to remove it from the walk upon which the plaintiff fell, a ridge some eight or ten inches in height and six to eight inches in width, running through the center of the walk for its entire length, had been permitted to remain, although it might have been removed with the exercise of a fair degree of care and diligence, and that it was by reason of this lack of diligence and effort that the plaintiff received the injury complained of. It was insisted upon the argument, however, that notwithstanding this fact the case in its main features was essentially the same as that of Taylor v. City of Yonkers (105 N. Y. 202); Kaveny v. City of Troy (108 id. 571), and Harrington v. City of Buffalo (121 id. 147), and consequently that the plaintiff ought not to have recovered. In this contention we were unable to agree with the learned counsel for the appellant, and we are still of the opinion that there is a very marked distinction between the facts of the Ellen Clark, Respondent, v. Mary Clark, as Held, that the plaintiff waived his right Edward F. Hollister, Appellant, v. George H. Charles Wiers, Respondent, v. The New York FOURTH DEPARTMENT, JUNE TERM, 1903. [Vol. 85, App. Div.] pany, Appellant.- Order reversed and new trial ordered, with costs to the appellant to abide event, unless the respondent stipulates to reduce the verdict to $4,000 as of the date of the rendition thereof, in which event the order is affirmed, without costs of this appeal to either party. All concurred. Milton M. Fenner, Appellant, v. Harrison Peck, Respondent.-Judgment of County Court reversed and that of the Justice's Court affirmed, with costs. Held, that the proof of the parol contract was properly excluded by the justice of the peace. All concurred. Isaiah McKibbin, Appellant, v. J. Henry Howe and Others, Respondents.-Order affirmed, with ten dollars costs and disbursements. All concurred, except Williams, J., dissenting. Dennis Deegan, Appellant, v. Chase & Smith Company, Respondent.- Judgment and order affirmed, with costs. All concurred. Charles A. Green, Appellant, v. George R. Collins, Respondent.-Order affirmed, with ten dollars costs and disbursements. All concurred. Frances A. Harrison, Respondent, v. Grand Trunk Railway Company of Canada and The New York Central and Hudson River Railroad Company, Appellants.- Judgment and order affirmed, with costs. All concurred. Patrick Donnelly, as, etc., v. The City of Rochester.- Motion for reargument denied; motion for leave to appeal to the Court of Appeals granted. William H. Slade v. Gertrude A. Hale, as Executrix, etc. Motion for reargument denied, with ten dollars costs and disbursements. Frank A. Weddigan and John Meyer, Respondents, v. William F. Whiting, Appellant.Order reversed and motion for new trial granted upon condition that the defendant, within thirty days after entry and service of a copy of this order, pay plaintiffs the cost of this appeal and the taxable costs of this action aceruing from the joinder of issue, including the costs and disbursements upon the reference to ascertain the plaintiffs' damages; also the disbursements actually incurred by plaintiffs upon the trial of the action and upon said reference for witness fees not taxable; also upon condition that plaintiffs have the right, at their election, to read from the stenographer's minutes upon any new trial of the action and upon any reference ordered herein, the evidence of any of their witnesses already taken, residing outside of the State of New York. In the event of the defendant's failure to comply with the terms of this decision the order appealed from is affirmed, with costs. The form of the order to be entered hereupon to be settled before Mr. Justice Hiscock upon two days' notice. All concurred. Elizabeth E. Silver, Appellant, v. Thomas J. Murphy, Respondent. Judgment and order affirmed, with costs. All concurred. James M. Douglass, Respondent, v. Bartel's Brewing Company, Appellant.-Judgment and order affirmed, with costs. All concurred. Edward R. Booth. Appellant, v. Carrie H. Fordham and Others, Respondents. - Judg ment and order reversed and new trial or dered, with costs to appellant to abide event. Held, that upon all the evidence plaintiff was entitled to go to the jury upon the various issues involved. All concurred. Millie J. Connell, as Administratrix, etc., of John Connell, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. - Judgment and order affirmed, with costs. All concurred. Michael Dillon, Respondent, v. Francis J. Clark, Appellant. -Judgment affirmed, with costs. All concurred. Ella D. Spencer, as Administratrix, etc.. of Frank Spencer, Deceased, Appellant, v. The Town of Sardínia, Respondent. - Judgment and order affirmed, with costs. All concurred Francis X. Zapf, Appellant, v. Lulu N. Carter, Respondent. - Order amended so as to read: "Judgment reversed upon questions of law and of fact and new trial ordered before another referee, with costs to the appellant to abide event This amendment is upon condition, however, that the appellant, within ten days after entry and service of a copy of the order to be entered hereon, be permitted to withdraw his appeal to the Court of Appeals without costs, and upon such withdrawal that the respondent, within thirty days thereafter, pay to the appellant the costs and disbursements of the appeal to the Court of Appeals, including the money expended for the purchase of the printed record. In case of the failure of the respondent to pay said costs and disburse ments, the motion is denied, with ten dollars costs. The order to be settled, before Mr. Justice Williams upon two days' notice.” All concurred; Hiscock, J., not sitting. Henry F. Hughes, Individually and as Succes sor to the Late Firm “Gordon & Hughes," v. Ficklen & Murphy Company and Erie Railroad Company, Respondents. Judgment affirmed, with costs. All concurred. Daniel J. Bryan, Respondent, v. Farmers' Mutual Indemnity Association of Cayuga County, Appellant. Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs. Nellie A. Gregg Vought, Respondent, v Eastern Building and Loan Association of Syracuse, N. Y.. Appellant. Judgment and order affirmed, with costs. All concurred. McKee Land and Improvement Company of Rochester, New York, Appellant, v. Samuel B. Williams, Treasurer of the City of Roch ester, Respondent. — Order affirmed, with costs. All concurred. Florence Briggs, by Guardian, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. Motion for reargument denied, with ten dollars costs and disbursements; motion for leave to appeal to the Court of Appeals denied. INDEX. ACCOUNTING — By a guardian. - See GUARDIAN AND WARD. Bill of particulars—not required of the plaintiff where he is entitled to See PLEADING. Against defendants against whom bankruptcy proceedings are instituted. Relating to corporations generally. See CORPORATION. Settlement of right of an interested party to intervene. See PARTY. - For flooding land· - - when in trespass and not for breach of contract. The right to remove a dead body from a cemetery does not affect any See VENUE. ADVERTISEMENT - On fences - the Legislature cannot authorize a munici- See PEOPLE v. GREEN.. 400 AGRICULTURAL LAW - Action to recover a penalty, for selling impure - PAGE. APPEAL - An order authorizing the construction by a railroad of a tempo- See ONEONTA, C. & R. S. R. Co. v. C. & C. V. R. R. Co..... See PEOPLE EX REL. COURTNEY v. UNGER. (No. 2).. Mandamus an order to show cause requiring the production of a ballot Trial of issues raised by the return to an alternative mandamus — modes See PEOPLE EX REL. BELLINGER v. WELLS.. Modification of an assessment on appeal—what must be shown to estab- 251 249 378 See MATTER OF MAYOR (OPENING E. 176TH ST.).. 347 ....... An exception to the direction of a verdict is sufficient — the party except- 196 A decision of a County Court confirming the decision of commissioners See MATTER OF MITCHELL. 277 Service of a case on appeal — when unnecessary,— when necessary, it must See MCILVAINE v. STEINSON.. 562 What stipulation as to the contents of a record on appeal does not show See MILLER v. FARMERS & M. STATE BANK..... 175 Power of a County Court to reverse a justice's judgment as being against the weight of evidence. See MURTAGH v. DEMPSEY. 204 Waiver of the right to appeal from an order vacating a judgment and See ROCKEFELLER v. ST. REGIS PAPER Co..... 267 Condemnation of land—review of a report of commissioners by the See MATTER OF TOWN OF GUILFORD.. ARCHITECT-Building contract · - when an architeet, "acting for the pur- See LANGLEY v. ROUSS... 207 564 27 |