In re LAING. (Court of Appeals of New PER CURIAM. Order (59 App. Div. 612, LANCASTER, Respondent, v. FRENCH, PER CURIAM. Judgment (56 App. Div. LIBERTY WALL PAPER CO., Appellant, PER CURIAM. Judgment (59 App. Div. PARKER, C. J., and GRAY. O'BRIEN, parties appearing and filing briefs in this court, PARKER, C. J., and BARTLETT, MELCHER, Respondent, v. BIEN, Appel- PER CURIAM. Judgment (61 App. Div. MERRICK, Respondent, v. WATERS et PER CURIAM. Judgment (51 App. Div. In re MILES' ESTATE. (Court of Appeals MONTAUK ASS'N, Appellant, v. DALY et PER CURIAM. Judgment (62 App. Div. MORRIS, Respondent, V. METROPOL- PER CURIAM. Judgment (63 App. Div. NEW YORK INFANT ASYLUM, Respond- PER CURIAM. Appeal dismissed, with PARKER, C. J., and BARTLETT, NICHOLSON, Respondent, V. STERN- OILLE et al., Appellants, v. RODGER et al., Respondents. (Court of Appeals of New York. April 8, 1902.) Thomas K. Smith, for appellants. Homer Weston, for respondents. PER CURIAM. Order (61 App. Div. 612, 69 N. Y. Supp. 1141) affirmed, and judgment absolute ordered for defendants on the stipulation, with costs. PARKER, C. J., and GRAY, O'BRIEN, MARTIN, CULLEN, and WERNER, JJ., concur. VANN, J., not voting. PEALE et al., Appellants, v. BENJAMIN, Respondent, et al. (Court of Appeals of New York. April 15, 1902.) Motion to dismiss an appeal from a judgment of the appellate division of the supreme court in the First judicial department, entered January 31, 1902 (68 App. Div. 126, 74 N. Y. Supp. 147), affirming a judgment in favor of defendant entered upon a verdict and an order denying a motion for a new trial. The motion was made upon the grounds that the appeal is frivolous, without merit, and taken only for delay. John E. Judge, for the motion. James C. Lenney, opposed. No opinion. Motion granted, and appeal dismissed, with costs. PEOPLE, Respondent, v. AUSTIN, Appellant. (Court of Appeals of New York. March 25, 1902.) Charles Hopkins and Frank B. Lown, for appellant. William R. Lee, for the People. PER CURIAM. Judgment (63 App. Div. 382, 71 N. Y. Supp. 601) of conviction affirmed, on opinion of Hirschberg, J., below. PARKER, C. J., and GRAY, O'BRIEN, and CULLEN, JJ., concur. BARTLETT, J. (dissenting). The appeal presents a novel question, never decided by this court. There is much to be said on either side of the controversy, and the cases in other states are conflicting. As there is no limitation of time within which a prosecution for murder must be commenced, and as an indictment for other felonies is barred in five years, it seems the reasonable, broader, and more Inerciful construction of the statutes bearing upon this question to hold that, if the jury are unable to find the defendant guilty of murder in either degree, they must acquit if the statute of limitations has run against a lesser offense of which they deem him guilty. It is true the statute provides that an indictment for felony, other than murder, must be found within five years after its commission (Code Cr. Proc. § 142); but I cannot assent to the construction that its effect is limited to the finding of an indictment. The effect of this construction would be that a conviction for manslaughter could be had at any time, notwithstanding the statute, by simply charging the defendant in the indictment with murder. The verdict of the jury has determined that the defendant is guilty of manslaughter. It is conceded that an indictment for this offense could not have been found, because the statute forbids it. The general policy of the state, as disclosed by the statutes, may be thus stated: Murder is so heinous a crime it can be prosecuted at any time; but as to all other felonies the statute of repose acts as a shield, lest defendants be unable to defend themselves owing to the changes wrought by time and death. I vote for reversal. HAIGHT and WERNER, JJ., concur. PEOPLE, Respondent, v. GOSLIN et al., Appellants. (Court of Appeals of New York. April 15, 1902.) Frank S. Black, Frederick B. House, Henderson Peck, Robert A. Ammon, and Frederick B. Bard, for appellants. John C. Davies, Atty. Gen. (Job E. Hedges and John D. Lindsay, of counsel), for the People. PER CURIAM. Judgment of conviction (67 App. Div. 16, 73 N. Y. Supp. 520) affirmed. PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, and WERNER, JJ., concur. CULLEN, J., not voting. PEOPLE, Respondent, v. HERLIHY, Appellant. (Court of Appeals of New York. March 7, 1902.) Abram I. Elkus and Carlisle J. Gleason, for appellant. William Travers Jerome, Dist. Atty. (Howard S. Gans, of counsel), for the People. PER CURIAM. Judgment (66 App. Div. 534, 73 N. Y. Supp. 236) affirmed on opinion below. PARKER, C. J., and O'BRIEN, BARTLETT, HAIGHT, MARTIN, and VÁNN, JJ., concur. GRAY, J., absent. PEOPLE, Respondent, v. RUSSELL et al., Appellants. (Court of Appeals of New York. May 20, 1902.) William G. Cooke, for appellants. William Travers Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for respondent. PER CURIAM. Appeal dismissed, with costs, on authority of Van Arsdale v. King, 155 N. Y. 325, 49 N. E. 866, People v. Clark, 168 N. Y. 676, 61 N. E. 1132, and People v. Baker, 168 N. Y. 677, 61 N. E. 1132. See 67 App. Div. 620, 74 N. Y. Supp. 1141. PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, CULLEN, and WERNER, JJ., concur. PEOPLE ex rel. HATHEWAY, Appellant, v. FROMME, Register, Respondent. (Court of Appeals of New York. April 8, 1902.) J. Langdon Ward, for appellant. George L. Rives, Corp. Counsel (Theodore Connoly, of counsel), for respondent. PER CURIAM. Order (67 App. Div. 618, 73 N. Y. Supp. 1144) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, CULLEN, and WERNER, JJ., concur. PEOPLE ex rel. MACK, Appellant, _v. BURT et al., Civil Service Com'rs, et al., Respondents. (Court of Appeals of New York. April 8, 1902.) Charles C. Burlingham, for appellant. George L. Rives, Corp. Counsel (Theodore Connoly and William B. Crowell, of counsel), for respondents. PER CURIAM. Order (65 App. Div. 157, 72 N. Y. Supp. 567) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, CULLEN, WERNER, JJ., concur. and PETRIE, Respondent, V. NEW YORK CENT. & H. R. R. CO., Appellant. (Court of Appeals of New York. April 18, 1902.) Henry Purcell, for appellant. John O'Leary and John N. Carlisle, for respondent. PER CURIAM. Judgment (63 App. Div. 473, 71 N. Y. Supp. 866) affirmed, with costs. BARTLETT, HAIGHT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. PARKER, C. J. (dissenting). Under the rulings of the trial judge, now to be affirmed, notwithstanding the continuous ringing of a bell and blowing of a whistle from one station to another, a jury may be permitted to find that a railroad corporation is guilty of negligence in failing to give proper warning to a person crossing its tracks on a public highway miles from the last station from which the train injuring such person departed. The reasoning upon which the decision rests leads to this result: If all the warnings that the ingenuity of man may be able to devise be employed in a given instance, the jury may still find that the train negligently approached the crossing by failing to give proper warnings. In practical effect, therefore, it permits the jury to find negligence where there is none and no proof of any; indeed, where all the evidence bearing upon the - subject tends to prove freedom from negligence, a most illogical result of the decisions in actions founded upon the fault of a defendant, but one from which it is now evident the legislature can alone relieve. In re PETTIT'S ESTATE. (Court of Appeals of New York. May 20, 1902.) Emmet R. Olcott, for appellant. Lucius H. Beers and Jordan J. Rollins, for respondents. PER CURIAM. Order (65 App. Div. 30, 72 N. Y. Supp. 469) affirmed, with costs, on opinion below. PARKER, C. J., and GRAY, O'BRIEN, BARTLETÍ, HAIGHT, CULLEN, and WERNER, JJ., concur. 63 N.E.-71 PFEFFER, Respondent, v. KLING et al., Appellants. (Court of Appeals of New York. April 1, 1902.) Motion by Thomas D. Husted, as receiver, one of the appellants herein, to withdraw, so far as he is concerned, an appeal from a judgment of the appellate division of the supreme court in the First judicial department, entered February 23, 1901, modifying, and affirming as modified, a judgment in favor of plaintiff entered upon a verdict directed by the court. The motion was made upon the ground that the appeal was unauthorized, and taken without his knowledge or consent. Thomas D. Husted, for the motion. Clarence L. Barber, opposed. No opinion. Motion granted upon payment to plaintiff of costs that have accrued to the present time. See 58 App. Div. 179, 68 N. Y. Supp. 641. POPE et al., Respondents, v. LEVY, Appellant. (Court of Appeals of New York. March 25, 1902.) Gratz Nathan, for appellant. Abram I. Elkus and Carlisle J. Gleason, for respondents. PER CURIAM. Appeal dismissed, with costs. See 54 App. Div. 495, 66 N. Y. Supp. 1028. BARTLETT, HAIGHT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. PARKER, C. J., absent. PORTER, Appellant, v. RHOADES, Respondent. (Court of Appeals of New York. March 7, 1902.) Edwin H. Risley and Charles A. Fuller, for appellant. Henry B. Coman and E. W. Cushman, for respondent. PER CURIAM. Appeal dismissed, with costs. See 48 App. Div. 635, 63 N. Y. Supp. 112. PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, and MARTIN, JJ., concur. VANN, J., not voting. PRITCHARD, Respondent, v. KIRSCH, Appellant, et al. (Court of Appeals of New York. April 18, 1902.) Louis Sturcke, for appellant. Michael J. Scanlan, for respondent Society of St. Vincent de Paul. PER CURIAM. Judgment (58 App. Div. 332, 68 N. Y. Supp. 1049) affirmed, with costs, on opinion below. PARKER, C. J., and BARTLETT. HAIGHT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. RAEGENER, Respondent, V. BAINBRIDGE et al., Appellants. (Court of Appeals of New York. April 15, 1902.) Archibald C. Shenstone, for appellants. Alfred A. Cook and Leopold Wallach, for respondent. PER CURIAM. Judgment (48 App. Div. 633, 63 N. Y. Supp. 1115) affirmed, with costs, on the authority of Raegener v. Hubbard, 167 N. Y. 301, 60 Ñ. E. 633. PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, and MÁRTIN, JJ., concur. VANN, J., absent. RAEGENER, Appellant, v. BROCKWAY et al., Respondents. (Court of Appeals of New York. April 15, 1902.) Alfred A. Cook and Leopold Wallach, for appellant. Franklin Pierce, for respondents. PER CURIAM. Judgment (58 App. Div. 166, 68 N. Y. Supp. 712) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, and MARTIN, JJ., concur. BART LETT, J., not voting. VANN, J., absent. REISS, Appellant, v. TOWN OF PELHAM, Respondent. WEBER, Appellant, v. SAME. (Court of Appeals of New York. April 1, 1902.) Motion to amend order dismissing appeals by adding thereto "with leave to the plaintiffs to apply to the appellate division of the supreme court in the Second judicial department for directions concerning the entry of judgments of affirmance on the orders of reversal made by the appellate division herein." See 170 N. Y. 54, 62 N. E. 1083. No opinion. Motion denied, on the ground that leave asked for is unnecessary. The plaintiffs have the right to prosecute their appeal to the appellate division, despite the decree of that court on the appeal from the order granting motion for new trial on newly discovered evidence. RICHARDSON et al., Appellants, v. EMMETT. Respondent. (Court of Appeals of New York. May 13, 1902.) Motion for restitution denied, without costs, but with leave to renew in case of unnecessary delay on the part of the defendant in prosecuting the new trial, or in the event that such trial shall result in favor of the plaintiffs. See 170 N. Y. 412, 63 N. E. 440. ROUSSEL, Respondent, v. MATHEWS et al., Appellants. (Court of Appeals of New York. April 18, 1902.) William S. Bennet, for appellants. Daniel Whitford and William Lloyd Kitchel, for respondent. PER CURIAM. Judgment (62 App. Div. 1, 70 N. Y. Supp. 886) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, BARTLETT, HAIGHT, MARTIN, and VANN, JJ., concur. RUPPERT, Respondent, v. BROOKLYN HEIGHTS R. CO., Appellant. (Court of Appeals of New York. April 18, 1902.) I. R. Oeland, for appellant. Henry A. Monfort, for respondent. PER CURIAM. Judgment (62 App. Div. 619, 70 N. Y. Supp. 1148) reversed, and new trial granted, costs to abide event, on authority of former decision in this case. 154 N. Y. 90, 47 N. E. 971. PARKER, C. J., and GRAY, O'BRIEN, HAIGHT, and MARTIN, JJ., concur. BARTLETT and VANN, JJ., not voting. March 25, 1902.) Leopold Leo and Robert P. Orr, for appellants. Sol Kohn and William S. Lewis, for respondent. PER CURIAM. Judgment (60 App. Div. 416, 69 N. Y. Supp. 1002) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. SILBERSTEIN, Respondent, v. STAHL et al., Appellants. (Court of Appeals of New York. May 13, 1902.) Charles G. F. Wahle, for appellants. Herbert B. Shoemaker, for respondent. PER CURIAM. Judgment (63 App. Div. 614, 71 N. Y. Supp. 1148) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. SOUTHERTON, Respondent, v. HAHN et al., Appellants. (Court of Appeals of New York. March 25, 1902.) Charles S. Kent, for appellants. Willard A. Rill, for respondent. PER CURIAM. Judgment (64 App. Div. 625, 73 N. Y. Supp. 1148) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. STERNAMAN, Appellant, v. METROPOLITAN LIFE INS. CO., Respondent. (Court of Appeals of New York. April 1, 1902.) No opinion. Motion for reargument denied, with $10 costs. See 170 N. Y. 13, 62 N. E. 763. STOOTHOFF, Respondent, v. BROOKLYN HEIGHTS R. CO., Appellant. (Court of Appeals of New York. May 6, 1902.) I. R. Oeland and George D. Yeomans, for appellant. Herman Aaron, for respondent. PER CURIAM. Judgment (60 App. Div. 631, 70 N. Y. Supp. 1149) affirmed, with costs. GRAY, O'BRIEN, MARTIN, VANN. CULLEN, and WERNER, JJ., concur. PARKER, C. J., absent. THIRD NAT. BANK OF BUFFALO, Respondent, v. BUFFALO WHEEL CO. et al., Appellants. (Court of Appeals of New York. April 18, 1902.) James McC. Mitchell and Martin Carey, for appellants. Loran L. Lewis, Jr., for respondent. PER CURIAM. Judgment (66 App. Div. 293. 73 N. Y. Supp. 114) affirmed, with costs, on opinion below. PARKER, C. J., and BARTLETT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. HAIGHT, J., not sitting. THIRD NAT. BANK OF SYRACUSE, Respondent, v. KEEFFE et al., Appellants. (Court of Appeals of New York. May 6, 1902.) Louis Marshall, for appellants. George W. O'Brien and E. N. Wilson, for respondent. PER CURIAM. Judgment (55 App. Div. 640, 67 N. Y. Supp. 1147) affirmed, with costs. PARKER, C. J., and MARTIN, CULLEN, and WERNER, JJ., concur. GRAY, J., dissents upon the ground that error was committed in receiving Elizabeth Keeffe's evidence. O'BRIEN, J., dissents generally. VANN, J., takes no part. UNDERHILL, Respondent, v. KEIRNS, Appellaut. (Court of Appeals of New York. March 25, 1902.) Charles C. Sanders and John Vincent, for appellant. Reuben H. Underhill and Henry B. Hathaway, for respondent. PER CURIAM. Order (54 App. Div. 214, 66 N. Y. Supp. 573) affirmed, and judgment absolute ordered for the plaintiff on the stipulation, with costs. PARKER, C. J., and BARTLETT, HAIGHT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. VAN ZANDT, Respondent, v. GRANT et al., Appellants. (Court of Appeals of New York. April 8, 1902.) Motion to dismiss an appeal from a judgment of the appellate division of the supreme court in the First judicial department, entered December 19, 1900 (56 App. Div. 176, 67 N. Y. Supp. 654), modifying, and affirming as modified, a judgment in favor of plaintiff entered upon a decision of the court at a trial term without a jury. The motion was made upon the ground that the court of appeals has no jurisdiction to entertain the appeal; no questions of law being involved therein, and the decision of the appellate division having been unanimous. Melvin G. Palliser, for the motion. Pierre C. Talman, opposed. No opinion. Motion denied, with $10 costs. VARNUM, Respondent, v. BOLTON SHOE CO., Appellant. (Court of Appeals of New York. May 27, 1902.) Joseph W. Taylor, for appellant. Walter S. Hubbell and John Van Voorhis, for respondent. PER CURIAM. Judgment (63 App. Div. 570, 71 N. Y. Supp. 903) affirmed, with costs. GRAY, O'BRIEN, BARTLETT, HAIGHT, CULLEN, and WERNER, JJ., concur. PARKER, C. J., absent. WALDRON, Appellant, v. FARGO, Respondent. (Court of Appeals of New York. April 8, 1902.) No opinion. Motion for reargument denied, with $10 costs. See 170 N. Y. 130, 62 N. E. 1077. In re WELLS. (Court of Appeals of New York. April 1, 1902.) No opinion. Motion for reargument. See 169 N. Y. 595, 62 N. E. 1101. Remittitur modified, so as to strike out direction for recovery of costs. Motion in other respects denied. WEST, Respondent, v. BANIGAN et al., Appellants. (Court of Appeals of New York. April 15, 1902.) Motion to dismiss an appeal from a judgment of the appellate division of the supreme court in the Second judicial_department, entered June 11, 1900 (51 App. Div. 328, 64 N. Y. Supp. 884), affirming a judgment in favor of plaintiff entered upon a verdict aud an order denying a motion for a new trial. The motion was made upon the grounds that the decision is not appealable to, and cannot be reviewed by, the court of appeals. Albert H. F. Seeger, for the motion. Richard S. Harvey, opposed. No opinion. Motion denied, with $10 costs. WILSON, Respondent, v. EOLIAN CO. et al., Appellants. (Court of Appeals of New York. April 8, 1902.) William B. Hornblower, William L. Perkins, and Frank A. Butler, for appellants. Herbert T. Ketcham and Joseph E. Owens, for respondent. PER CURIAM. Judgment (64 App. Div. 337, 72 N. Y. Supp. 150) affirmed, with costs. PARKER, C. J., and GRAY, O'BRIEN, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. WILSON, Appellant, v. MECHANICAL ORGUINETTE CO., Respondent. (Court of Appeals of New York. May 13, 1902.) No opinion. Motion for reargument denied, with $10 costs. See 170 N. Y. 542, 63 N. E. 550. V. NEW WOODWORTH, Respondent, YORK CENT. & H. R. R. CO., Appellant. (Court of Appeals of New York. March 25, 1902.) Robert A. Kutschbock and Charles C. Paulding, for appellant. Clinton F. Ferris, for respondent. PER CURIAM. Judgment (55 App. Div. 23, 66 N. Y. Supp. 1072) affirmed, with costs. BARTLETT, MARTIN, VANN, CULLEN, and WERNER, JJ., concur. PARKER, C. J., dissents. HAIGHT, J., not voting. CITY OF CHARLESTON v. WILEY et al.1 (Supreme Court of Illinois. Feb. 21, 1902.) Error to appellate court, Third district. Mandamus by Charles S. Wiley and others against the city of Charleston to compel the city council to pass an ordinance disconnecting certain territory. From a decision of the appellate court (94 Ill. App. 53) affirming a judgment in favor of the relators, the defendant brings error. Reversed. S. S. Anderson, J. H. Marshall, and Chas. C. Lee, for plaintiff in error. Neal & Wiley, for defendants in er ror. PER CURIAM. In a suit in mandamus brought by the defendants in error to compel the city council of the city of Charleston to pass an ordinance disconnecting certain territory belonging to them from the city, the circuit court of Coles county awarded the writ, and on appeal the appellate court affirmed the judgment. After the judgment was rendered in the circuit court, the general assembly passed the act of May 10, 1901, making it discretionary with the city council whether or not it would disconnect territory on application of the owners thereof. In Vance v. Rankin, 62 N. E. 807, a case on all fours with this, we held that said act of May 10, 1901, was applicable to judgments already rendered, where the ordinance making the disconnection had not been passed. What was there said is conclusive of the question in this case. The judgments of the appellate and circuit courts will therefore be reversed. Each party will pay his own costs in this court. Judgment reversed. CITY OF CHICAGO v. HOLDEN et al. (Supreme Court of Illinois. April 16, 1902.) Error to Cook county court; E. B. Gower, Judge. Proceeding by the city of Chicago against Caroline C. Holden and others to collect a special assessment for the paving of a street. From a judgment in favor of the defendants. the plaintiff brings error. Affirmed. Charles M. Walker, Corp. Counsel, and Wm. M. Pindell, Asst. Corp. Counsel, for plaintiff in error. George W. Wilbur, for defendants in error. PER CURIAM. This is a special assessment proceeding to defray the cost of paving, curbing, and guttering Warren avenue from Homan street to a point within 98 feet of the east line of Fall street, in the city of Chicago. A judgment confirming the assessment was reversed in this court (Holden v. City of Chi 1 Rehearing denied April 5, 1902. |