FOSTER et al. v. SUTTON et al. (Supreme | Second Department. April 23, 1909.) Action Court, Appellate Division, First Department. by Harris Ginsberg against Joseph M. Schwartz April 16, 1909.) Action by Frederick De P. No opinion. Judgment of the Municipal Court Foster and others against Edward K. Sutton affirmed, with costs. and others. No opinion. Motion denied, with $10 costs. Order filed. GINSBERG, Respondent, v. SCHWARTZ, GREEN, Respondent, v. LOZIER MOTOR CO., Appellant. (Supreme Court, Appellate Division, First Department. April 23, 1909) Action by Annie G. Green, as administratrix, against the Lozier Motor Company. H. C. Allen, for appellant. F. A. McCloskey, for respondent. PER CURIAM. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, unless plaintiff stipolates to reduce verdict to $5,000, in which event, judgment, as so modified, and order, affirmed, without costs. Settle order on notice. GREEN, Respondent, v. LOZIER MOTOR CO., Appellant. (Supreme Court, Appellate Division, First Department. May 7, 1909.) A tion by Annie G. Green, as administratrix. len, for appellant. F. A. McCloskey, for re- | Contracting Company. No opinion. Motion spondent. denied. Order filed. PER CURIAM. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce verdict to $5,000, in which event, judgment, as so modified, and order, affirmed, without costs. Settle order on notice. GREGOIRE, Respondent, v. WALKER & WILLIAMS MFG. CO., Appellant. (Supreme Court, Appellate Division, Third Department. May 5, 1909.) Action by Oscar Gregoire,, by Joseph Gregoire, his guardian ad litem, against the Walker & Williams Manufacturing Company. No opinion. Judgment and order unanimously affirmed, with costs. GROSS, Respondent, v. AJELLO, Appellant. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by Anna Gross against Michele Ajello. No opinion. Appeal dismissed, without costs. See, also, 116 N. Y. Supp. 380. GROSS, Respondent, v. KAHN et al., Appellants. (Supreme Court, Appellate Division, First Department. May 7, 1909.) Action by Aaron Gross against Leopold Kahn and another. I. Gainsburg, for appellants. J. Manheim, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. GROSS et al., Respondents, v. LEO, Appellant. (Supreme Court, Appellate Division, First Department. April 16, 1909.) Action by Albert B. Gross and others against Michael J. Leo. L. A. Weter, for appellant. H. Meyer, for respondents. No opinion. Order affirmed, with $10 costs and disbursements. Order filed. HARTSHORN v. REILLY et al. (Supreme Court, Appellate Division, Second Department. May 7, 1909.) Action by La Mott Hartshorn against John F. Reilly and others. No opinion. Motion denied, with costs, and stay vacated. HEAL, Appellant, v. RICHMOND COUNTY SAVINGS BANK, Respondent. (Supreme Court, Appellate Division, Second Department. April 30, 1909.) Action by Frederick S. Heal against the Richmond County Savings Bank. No opinion. Motion to amend return_granted, without costs. See, also, 127 App. Div. 428, 111 N. Y. Supp. 602. HECKSHER, Respondent, v. EDENBORN, Appellant. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by August Hecksher against William Edenborn. No opinion. Motion denied, with $10 costs. See, also, 115 N. Y. Supp. 673. HECKSHER, Respondent, v. EDENBORN, sion, Second Department. Appellant. (Supreme Court, Appellate DiviApril 23, 1909.) Action by August Hecksher against William Edenborn. ment of order denied, without costs. See, also, No opinion. Motion for resettle115 N. Y. Supp. 673. HEDDEN CONST. CO., Respondent, PROCTER & GAMBLE CO., Appellant. (Supreme Court, Appellate Division, Second De partment. April 23, 1909.) Action by the Hedden Construction Company against the Procter & Gamble Company. PER CURIAM. Motion granted, on condition that the appellant perfect the appeal forthwith, place the cause at the foot of the present calendar, be ready for argument when reached, and pay the respondent $10 costs and the expense of advertising; otherwise, denied, withSee, also, 62 Misc. Rep. 129, 114 N. Y. Supp. 1103. HAINS, Respondent, v. HAINS, Appellant. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by Peter C. Hains, Jr., against Claudia E. Hains. No opinion. Order, in so far as appealed from, af-out costs. firmed, without costs. PER CURIAM. Judgment and order affirmed, with costs. Order filed. HOUGHTON, J., dissents. JOHNSON, Respondent, v. BLANEY, Appellant. (Supreme Court, Appellate Division. First Department. May 7, 1909.) Action by John C. R. Johnson against Charles P. Blaney. J. B. Coleman, for appellant. L. H. Levin, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. JONES, Respondent, v. FARMERS' NAT. BANK OF HUDSON et al., Appellants. (Supreme Court, Appellate Division, Third Department. May 5, 1909.) Action by Mabel Jones against the Farmers' National Bank of Hudson and others. PER CURIAM. Order affirmed, with $10 costs and disbursements. COCHRANE, J., not sitting. JORDAN, Respondent, v. KEENAN, Appellant. (Supreme Court, Appellate Division, First Department. April 8, 1909.) Action by Walter C. Jordan against Frank Keenan. J. Fettretch, for appellant. W. D. Leonard, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. JOSEPH, Respondent, v. HERZIG, Appellant. (Supreme Court, Appellate Division, First Department. April 23, 1909.) Action by Jeanette H. Joseph, as executrix, against Simon Herzig, individually, etc. D. Leventritt, for appellant. J. A. Garver, for respondent. No opinion. Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs. Order filed. See, also, 115 N. Y. Supp. 330. KANE, Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Supreme Court, Appellate Division, First Department. April 8, 1909.) Action by Josephine M. Kane, as administratrix, against the New York Central & Hudson River Railroad Company. F. H. Levy, for appellant. R. A. Kutschbook, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. KAPLAN, Respondent, v. DENIKE et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by Samuel Kaplan against Mary T. Denike and another. No opinion. Judgment of the Municipal Court affirmed, with costs. KEARNEY v. NEW YORK CITY RY. CO. (Supreme Court, Appellate Division, First Department. April 16, 1909.) Action by Nellie Kearney against the New York City Railway Company. No opinion. Motion denied, with $10 costs. Order filed. KERWIN V. POST et al. (Supreme Court, Appellate Division, First Department. April 16, 1909.) Action by Andrew J. Kerwin, Jr., against Alfred Post and another. No opinion. Motion denied on terms stated in order. Order filed. See, also, 120 App. Div. 179, 104 N. Y. Supp. 1005. KIELY, Respondent, v. NEW YORK & H. R. CO. et al., Appellants. (Supreme Court, Appellate Division, First Department. May 7, 1909.) Action by Daniel F. Kiely against the New York & Harlem Railroad Company and another. A. S. Lyman, for appellants. D. F. Kiely, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed KING, Respondent, v. WHITRIDGE, Appel lant. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by Carl G. King against Frederick W. Whitridge. No opinion. Judgment and order unanimously affirmed, with costs. KING, Respondent, v. WILL J. BLOCK AMUSEMENT CO., Appellant. (Supreme Court, Appellate Division, First Department. May 7, 1909.) Action by Alice F. H. King against the Will J. Block Amusement Company. D. Gerber, for appellant. P. N. Turner, for respondent. No opinion. Judgment (115 N. Y. Supp. 243) affirmed, with costs. Order filed. KIRWAN, Appellant, v. AMERICAN LITHOGRAPHIC CO., Respondent. (Supreme Court, Appellate Division, First Department. May 7, 1909.) Action by Amelia Kirwan, an infant, against the American Lithographic Company. R. B. Meyer, for appellant. F. V. Johnson, for respondent. PER CURIAM. Judgment affirmed, with costs, on Kirwan v. American Lithographic Co., 124 App. Div. 180, 108 N. Y. Supp. 805. Order filed. PATTERSON, P. J., and LAUGHLIN, J., dissent, on the dissenting opinion of LAUGHLIN, J., in that case. KNAPP, Respondent, v. BECK, Appellant. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by Lucien Knapp against Abraham Beck. No opinion. Order of the Municipal Court affirmed, with costs. KRAUS v. JOHNSON. (Supreme Court, Appellate Division, First Department. April 16, 1909.) Action by Henry Kraus against Joseph Johnson, Jr. No opinion. Motion granted, with $10 costs. Order filed. KRONIG, Respondent, v. HARRIS, Appellant. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by Davis Kronig against Louis I. Harris. No opin ion. Judgment and order of the Municipal Court affirmed, with costs. In re KURSHEEDT. (Supreme Court, Appellate Division, First Department. April 23, 1909.) In the matter of Frederick A. Kursheedt, deceased. No opinion. Decree affirmed, with costs. Order filed. LA RUE Appellant, v. WHEELER, Respondent. (Supreme Court, Appellate Division, Second Department. April 30, 1909.) Action by Charles La Rue against Frederick J. Wheel er. PER CURIAM. Judgment of the Municipal Court reversed, and new trial ordered, costs to abide the event, because of error in excluding the evidence of the plaintiff as to the nature and value of his services. LASSER V. LASSER. (Supreme Court, Appellate Division, First Department. April 16, 1909.) Action by Rose Lasser against Louis Lasser. No opinion. Motion granted, with $10 costs. Order filed. LATIMER v. MCKINNON. (Supreme Court, Appellate Division, Third Department. May 5, 1909.) Action by Oliver C. Latimer against Frank H. McKinnon, as administrator, etc., of James R. Baumes, deceased. PER CURIAM. Order affirmed, with $10 costs and disbursements. SEWELL, J., not voting. LESEM, Respondent, v. GROSSMAN, Appellant. (Supreme Court, Appellate Division, First Department. May 7, 1909.) Action by William W. Lesem against Adolph Grossman, as administrator. B. Berger, for appellant. F. Hulse, for respondent. No opinion. Judgment and order affirmed, with costs. Order filed. LEWIS, Appellant, v. GEHLEN, Respondent, (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by Joseph Lewis against Charles W. Gehlen. No opinion. Motion denied, without costs. LINDENBORN v. VOGEL. (Supreme Court. Appellate Division, First Department. April 16, 1909.) Action by Solomon Lindenborn against Lillian B. Vogel. No opinion. Motion granted to the extent stated in order. Order filed. See, also, 115 N. Y. Supp. 962. LOVAGLIO, Appellant, v. NEW YORK CENT. & H. R. R. CO., Respondent. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by Antonio Lovaglio. an infant, etc., against the New York Central & Hudson River Railroad Company. No opinion. Motion denied. LUEZ v. ALEXANDER. (Supreme Court. Appellate Term. April 8, 1909.) Appeal from Municipal Court, Borough of Manhattan, Ninth District. Summary proceedings to recover the possession of leased premises by Margaret Luez against Julia D. Alexander, formerly Julia D. Williams. From a final order for the landlord, the tenant appeals. Order modified, and, as modified, affirmed. Max J. Kohler and Saul S. Myers, for appellant. Thomas H. Rothwell, for respondent. GILDERSLEEVE, P. J. I think that the agreement between the parties herein, so far as it relates to the furniture, is an agreement of sale and purchase, and cannot form any part of the amount due from the defendant as rent. I am of the opinion, however, that the agreement. tion placed upon it by the acts of the parties, taken in connection with the practical construe establishes the conventional relation of landlord and tenant, to the extent of enabling the plaintiff to maintain summary proceedings for the recovery of the possession of the premises described in the petition, and that the amount of rent due, based upon that fixed by the terms of the agreement, viz. $809 per month, being undisputed, there is due from the defendant the sum of $533.37 for the month of November, $809 for the month of December, and the same amount for the month of January, aggregating the sum of $2,151.37; that being the amount for which the defendant is liable. The final or der should therefore be modified, by providing that the amount of rent found due is the sum of $2,151.37, and, as so modified, affirmed, without costs of this appeal. All concur. LYMAM, Appellant, v. MERGES et al., Respondents. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) Action by Benjamin J. Lymam against Francis Merges and another. No opinion. Judgment reversed. and new trial granted, costs to abide the event, on the ground that the case was for the jury. and the dismissal seems to have been on no ground whatever. MAASS, Respondent, v. ROSENTHAL, Appellant. (Supreme Court, Appellate Division. Second Department. April 23, 1909.) Action by Sophie Maass against Marcus A. Rosenthal. No opinion. Order (62 Misc. Rep. 350, 115 N. Y. Supp. 4) affirmed, with $10 costs and disbursements. lant. MCDONALD, Respondent, v. FLINT, Appel(Supreme Court, Appellate Division, Third Department. Action May 5, 1909.) Action by George H. McDonald against Fred Flint. PER CURIAM. Judgment affirmed, with costs. LOEWY, Respondent, v. GORDON et al., Appellants. (Supreme Court, Appellate Division, Second Department. April 23, 1909.) by Abraham B. Loewy against Morris Gordon and another. No opinion. Motion granted, with costs. See, also, 129 App. Div. 459, 114 N. Y. |