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In re STICKNEY'S ESTATE: (Court of Appeals of New York. June 12, 1906.) No, opin: ion. Motion for reargument denied, with $10 costs. See 185 N. Y. 107, 77 N. E. 993.

STRONG, Respondent, v. GOOGINS, Appellant. (Court of Appeals of New York., June 5, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (104. App. Div. 631.93.N. Y. Supp. 1148), entered June 6, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to compel the specific performance of a contract for the exchange of two parcels of real property. Franklin Bien, for appellant. Allen McCulloh and Henry Hill Pierce, for respondent.

PER CURIAM. Judgment COStS.

CULLEN, C. J., and GRAY, EDWARD_T. BARTLETT, HAIGHT, WERNER, and HISCOCK, J.J., concur. O'BRIEN, J., absent.

affirmed, with

SWIFT, Appellant, v. AMERICAN EXCH. NAT. BANK, Respondent. (Court of Appeals of New York. Oct. 2 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (103 App. Div. 610, 93 N. Y. Supp. 1148), entered April 26, 1905, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court on trial at Special Term in an action to impress upon funds in the hands of the defendant a judgment theretofore recovered by plaintiff against a certain corporation, as: sets of which, it was alleged, had been received by defendant. Beno B. Gattell, Thomas D. Adams, and George L. Carlisle, for appellant. Michael L. Cardozo, for respondent.

PER CURIAM. Judgment affirmed, with COStS.

CULLEN, C. J., and VANN, WERNER, WILLATED BARTLETT, HISCOCK, and

CHASE, J.J., concur. O'BRIEN, J., absent.

SYRACUSE TRUST CO. v. SYRACUSE CONST. CO. et al. (Court of Appeals of New York. June 21, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (111 App. Div. 907, 96 N. Y. Supp. 1148), entered January 9, 1906, which affirmed a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term, and two intermediate orders theretofore made in an action to foreclose a lien on collateral held as security for the payment of two promissory notes. Le Roy B. Williams, for appellants. Edwin Nottingham, for respondent.

PER CURIAM. Judgment affirmed, with costs. Appeal from intermediate orders dismissed, without costs.

CULLEN, C. J., and GRAY, O'BRIEN, EDWARD T. BARTLETT, WERNER, and #Ase, J.J., concur. HISCOCK, J., not sit1I].g.

TEWES, Respondent, v. NORTH GERMAN LLOYD S. S. CO., Appellant. (Court of Appeals of New York. Oct. 9, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (104. App. Div. 619, 93 N. Y. Supp. 1149), entered May 4, 1905, affirming a judgment in favor of plaintiff entered upon a verdict and an order denying a motion for a new trial, in an action to recover for a loss of baggage through the alleged negligence of defendant. Joseph

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THIEME, Respondent, v. NIAGARA FIRE INS. CO., Appellant. (Court of Appeals of New York. June 5, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (100 App. Div. 278, 91 N. Y. Supp. 499), entered April 5, 1905, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court, and an order denying a motion for a new trial in an action to recover upon a policy of fire insurance. Robert Thorne, for appellant. Charles E. Le Barbier and Frederick H. Stillwagen, for respondent.

PER CURIAM. Judgment affirmed, with COstS.

CULLEN, C. J., and O'BRIEN, EDWARD T. BARTLETT, HAIGHT, HISCOCK, and

CHASE, J.J., concur. GRAY, J., absent.

In re THOMPSON'S ESTATE. (Court of Appeals of New York. May 25, 1906.) Motion for reargument. See 184 N. Y. 36, 76 N. E. 870. Louis Cohen, for the motion. Henry Hill Pierce, opposed.

PER CURIAM. This is the second motion made by the respondent for a return of our remittitur for amendment, the first having been denied, and no leave given to renew. The motion also includes an application for a reargument based mainly upon the fact that the executrix is a nonresident of the state; but it appears that she became a nonresident in May, 1902, more than three years before the appeal was argued in this court. Both applications are predicated substantially upon the inconvenience to the creditors in this state of going to the state of New Jersey in order to sue the former executrix, Mrs. Thompson. This fact did not give the Surrogate's Court jurisdiction of an action in the nature of a creditor's bill to reach assets not belonging to the estate. We did not pass upon the merits in our decision, but simply held that the surrogate had no jurisdiction of such a controversy. Matter of Thompson, 184 N. Y. 36, 76 N. E. 870. Outside facts, not appearing in the record, but shown only by the affidavit of the attorney for the creditors, cannot give the surrogate jurisdiction if the statute never conferred it. Either the surrogate had or had not jurisdiction to decide the question which arose between the creditors and the executrix as to the title to the moneys purchased by the excess of insurance under the statute. If the surrogate had jurisdiction, our decision was wrong. If he had no jurisdiction under any circumstances, as we unanimously held, then no outside fact could confer jurisdiction upon him. There is no inconsistency between our decision in this case and that made in Kittel v. Domeyer, 175 N. Y. 205, 67 N. E. 433. That was an action in the Supreme Court in equity, and did not, directly or indirectly, involve any question as to the jurisdiction of a surrogate. We followed that decision and made . it the basis of our judgment in the case before us as to the rights of creditors to the excess of insurance and the basis upon which they rest, namely, legislative grant. We held, as we

had held before, that such insurance moneys are not general assets of the estate, but constitute a special fund, created by statute for a special purpose, to be applied on the claims of creditors only after a decree in a court of equity. There is nothing to call for a reargument or for an amendment of the remittitur, and the motion should therefore be denied, with $10 costs. CULLEN. C. J., and O'BRIEN, HAIGHT, WANN, WERNER, and HISCOCK, J.J., concur. WILLARD BARTLETT, J., not sitting. Motion for reargument denied.

TREFFINGER, Respondent, v. M. GROH'S SONS, Appellant. (Court of Appeals of New York. June 21, 1906.) Appeal by permission from an order of the Appellate Division of the Supreme Court in the First Judicial Department (112 App. Div. —, 98 N. Y. Supp. 1115), entered April 26, 1906, which reversed an interlocutory judgment of Special Term sustaining a demurrer to the complaint in an action to recover damages for an alleged wrongful discharge from employment. The following question was certified, “Does the complaint state facts sufficient to constitute a cause of action?” Thomas F. Keogh, for appellant. Abram I. Elkus and Joseph M. Proskauer, for respondent.

PER CURIAM. Order affirmed, with costs. Question certified answered in the affirmative.

CULLEN. C. J., and GRAY, O'BRIEN, EDWARD T. BARTLETT, WERNER, and HISCOCK, J.J., concur. CHASE, J., absent.

WASSERMAN, Appellant, v. BACON, Respondent. ... (Court of Appeals of New York. June 5, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (105. App. Div. 632, 93 N. Y. Supp. 1150), entered May 31, 1905, affirming a judgment in favor of defendant entered upon a verdict and an order denying a motion for a new trial in an action to charge defendant as undisclosed principal for goods sold and delivered to his alleged agent. Ira Leo Bamberger and Sidney Lowenthal, for appellant. David B. Hill, Edward S. Griffing, and William F. McCombs, Jr., for respondent.

PER CURIAM. COStS.

CULLEN, C. J., and GRAY, EDWARD T. BARTLETT, HAIGHT, WERNER, and IIIS

COCK, J.J., concur. O'BRIEN, J., absent.

Judgment affirmed, with

In re WATERMAN’S ESTATE. (Court of Appeals of New York. June 21, 1906.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (113 App. Div. —, 99 N. Y. Supp. 1150), entered May 9, 1906, which reversed a decree of the King's County Surrogate's Court removing two of the executors of the will of Henry Waterman, deceased. The motion was made upon the grounds that the questions involved were matters of discretion, and the reversal upon the law and the facts, and the Court of Appeals therefore had no jurisdiction to consider the same. Robert H. Wilson, for the motion. Ralph W. Kenyon, opposed.

PER CURIAM. Motion denied, without costs, without prejudice to a renewal of the motion upon argument before us.

In re WATERMAN’S ESTATE. (Court of Appeals of New York. Oct. 16, 1906.) Appeal from an order of the Appellate Division of tha Supreme Court in the Second Judicial Department (112 App. Div. 313, 98 N. Y. Supp. 583), entered April 27, 1906, which re

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WEEKS V. COE. £ of Appeals of New York. Oct. 16, 1906.) Appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (112 App. Div. 888, 97 N. Y. Supp. 704), entered March 2, 1906, which reversed an order of Special Term requiring the respondent herein to deposit in a certain trust company moneys received by him in the above-entitled action, of which he was attorney for the plaintiff. A. P. Bachman, for appellant. Thaddeus D. Kenneson, for respondent.

PER CURLAM. COStS.

CULLEN. C. J., and EDWARD T. BARTLETT, HAIGHT, WANN, WERNER, WILLARD BARTLETT, and CHASE, J.J., concur.

Appeal dismissed, with

WELSTEAD, Respondent, v. JENNINGS, Appellant. (Court of Appeals of New York: June 12, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (104. App. Div. 179, 93 N. Y. Supp. 339), entered April 23, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to set aside a tax deed as a cloud upon title for alleged irregularities in the assessment roll. Harrie M. IIowell, for appellant. Joseph R. Swan, for respondent.

PER CURIAM. COStS.

CULLEN. C. J., and EDWARD T. BARTLETT, HAIGHT, HISCOCK, and CHASE, J.J., concur. GRAY and O'BRIEN, J.J., absent.

Judgment affirmed, with

WESTCHESTER TRUST CO. v. HOBBY BOTTLING CO. et al. (Court of Appeals of New York. June 5, 1906.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (102 App. Div. 464, 92 N. Y. Supp. 482), entered March 10, 1905, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action for the foreclosure of a mortgage given to secure an issue of corporate bonds. Robert Stewart, for appellant. Ralph Earl Prime, Jr., for respondent.

PER CURIAM. Judgment affirmed, with costs, on opinion below.

CULLEN. C. J., and O'BRIEN, EDWARD T. BARTILETT, HAIGHT HISCOCK, and CHASE, J.J., concur. GRAY, J., absent. ZAPFE, Respondent, v. JOHN MULLINS & SONS, Appellant. (Court of Appeals of New York. June 12, 1906.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the Second Judicial Department (112 App. Div. —, 98 N. Y. Supp. 1118), entered April 20, 1906, which affirmed an order of the court at a Trial Term denying a motion to set aside a verdict in favor of plaintiff and for a new trial in an action to recover for personal injuries alleged to have been received by plaintiff's intestate through defendant's negligence. The motion was made upon the ground that the appeal was unauthorized; the Court of Appeals having no jurisdiction to entertain it. Isaac M. Kapper, for the motion. Eidlitz & Hulse, opposed. PER CURIAM. Motion, granted and appeal dismissed, with costs and $10 costs of motion.

DIAMOND PLATE GLASS CO. et al. v. l'EAN. (No. 5,584.) (Appellate Court of In: diana, Division No. 1. June 28, 1906.) Appea from Superior Court, Grant County; B. F. Harness, Judge. Action by Benjamin F. Dean against the Diamond Plate Glass Company and others. Judgment for plaintiff, and defendants appeal. Affirmed. Blacklidge, Shirley & Wolf, for appellants. B. C. Moon, for appellee.

MYERS, J. The questions presented by this appeal are the same as those considered and decided by this court May 11, 1906, in cause No. 5,581, Diamond Plate Glass Company v. Knote, 77 N. E. 954, and upon the authority ' that case the judgment in this cause is affirmed.

DIAMOND PLATE GLASS CO. et al. V. NEWHOUSE. (No. 5,583.) (Appellate Court of Indiana, Division No. 1. June 28, 1906.) Appeal from Superior Court, Grant County; B. F. Harness, Judge. Action by Isaac Newhouse against the Diamond Plate Glass Company and others. Judgment for plaintiff, and defendants appeal. Affirmed. Blacklidge, Shirley & Wolf, for appellants. B. C. Moon, for appellee.

MYERS, J. The questions presented by this appeal are the same as those considered and decided by this court May 11, 1906, in cause No. 5,581, Diamond Plate Glass Company v. Knote, 77 N. E. 954, and upon the authority Of # case the judgment in this cause is affirmed.

INDIANAPOLIS NORTHERN TRACTION CO. v. SPURGEON. (No. 5,640.) Appellate Court of Indiana, Division No. 1. Oct. 4, 1906.) Appeal from Superior Court, Howard County; B. F. Harness, Judge. Action by Simeon Spurgeon against the Indianapolis Northern Traction Company. From a judgment for plaintiff, defendant appeals. Affirmed. Jas. A. Van Osdol and Blacklidge, Shirley & Wolf, for appellant. John W. Cooper and Thomas S. Gerhart, for appellee. MYERS, J. The pleadings, the facts, and the questions reserved on the rulings of the court and presented in this case were considered and decided by this court in Indianapolis Northern Traction Co. v. Harbaugh, 78 N. E. 80, and upon the authority of that case the judgment herein is affirmed.

LINGENETELTER V. LINGENFELTER. (No. 5,803.) (Appellate Court of Indiana. Oct. 11, 1906.) Appeal from Circuit Court, Shelby County; Will M. Sparks, Judge. Action between Thomas J. Lingenfelter and Laura Lingenfelter. From a judgment for the latter, the

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AMBLER v. BENTLEY et al. (No. 9,126.) (Supreme Court of Ohio. March 27, 1906.) Error to Circuit Court, Columbiana County. Carey & Mullins, for plaintiff in error. Taylor & Harris, for defendants in error.

PER CURIAM. Judgment reversed, and judgment for plaintiff in error, as shown in journal entry. It is ordered and adjudged by this court that the judgment of said circuit court be, and the same hereby is, reversed; and this court, proceeding to render the judgment and make the decree which should have been rendered and made by the circuit court, finds for the plaintiff in error on his note and mortgage. The court further finds that the defendants William J. Street, Marian Street. Homer J. Street, and Harold Street, together with Elizabeth Street, executed and delivered to the defendant Byron S. Ambler the mortgage and promissory note set up in the answer of the defendant Byron S. Ambler. The court, coming now to determine the respective rights of the parties hereto to the proceeds of the sale of said premises in the petition described, finds that there is now due the defendant Byron S. Ambler, as principal debt on said promissory note, the sum of $3,000, with interest thereon at 7 per cent. per annum, to be paid semiannually from July 28, 1900, subject to certain credits; that by the terms of the will of Martha Street, deceased, the entire income of all her estate now remaining in the hands of the administrator was given to William J. Street and his wife, Marian Street, to be disposed of at their discretion; that said income belongs to said beneficiaries absolutely, and the expression in said will of the purpose for which said income was given—that is, the support of said William J. Street and Marian Street—is not deemed to be the expression of an intention that the right of said income shall be inalienable. The court further finds that by the signing, execution, and delivery of said note and mortgage, as set forth in the answer of the defendant Byron S. Ambler, the said William J. Street and Marian Street, his wife, have pledged the income from said property, so given to them, to the payment of said indebtedness to said Byron S. Ambler. It is therefore ordered that out of the proceeds of the sale of said premises said administrator shall pay to the defendant Byron S. Ambler the sum so found due, in the following manner; that he shall reinvest the purchase price of said premises in securities to be approved by the probate court of Columbiana county, Ohio, and that the entire income therefrom shall from time to time be paid to the defendant Byron S. Ambler, to be applied on the indebtedness aforesaid. The court further finds that the defendants in error Homer J. Street and Harold Street have by the signing, execution, and delivery of said note and mortgage equitably pledged to the payment of said indebtedness whatever interest they may have in the estate of said Martha Street, deceased, of which the premises helein to be sold form a part, and that if said indebtedness is unpaid at the time of the decease of said William J. Street and Marian Street, or the survivors of them, that sufficient of the proceeds invested by said administrator, as aforesaid, shall be paid to the defendant Byron S. Ambler to cancel any balance remaining due and unpaid on this decree according to the terms of said note and mortgage; and this cause is remanded to the circuit court, with directions that it calculate the true amount due said Ambler on his note and mortgage, after giving credit for all payments, and that said correct sum of the principal and interest, when so found...be made a part of this decree. It is further directed that said circuit court make such further orders as may be necessary to enforce and carry out this decree, but such orders are to be consistent with this decree.

PRICE, CREW, SUMMERS, SPEAR, and DAVIS, J.J., concur.

AMERICAN STEEL CASTING CO. v. FITES. (No. 9,551.) (Supreme Court of Ohio. June 19, 1906.) Error to Circuit Court, Stark County. McCarty & Pontius and C. C. Bow, for plaintiff in error. Craine & Snyder, for defendant in error.

PER CURIAM. Judgment affirmed.

PRICE, CREW, SUMMERS, and SPEAR, J.J., concur.

AMERICAN SURETY CO. OF NEW YORK V. ARRON SAVINGS BANK CO. et al. (No. 9,596.) (Supreme Court of Ohio. March 27, 1906) Error to Circuit Court, Summit County. D. A. Doyle, for plaintiff in error. Grant & Sieber, for defendants in error.

PER CURIAM. Judgment affirmed.

PRICE, SUMMERS, and DAVIS, J.J., conCur.

AMERICAN SURETY CO. OF NEW YORK V. AKRON SAVINGS BANK CO. et al. (No. 9,597.) (Supreme Court of Ohio. March 27, 1906.) H. C. Willcox, J. W. Mason, and D. A. Doyle, for plaintiff in error. Grant & Sieber, for defendants in error.

PER CURIAM. Judgnient affirmed.

PRICE, SUMMERS, and DAVIS, J.J., conCUIT.

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