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Original application by the State, on the relation of John H. Anderson, for mandamus to the Honorable W. H. Spence and others, as judges of the Court of Appeals. Writ refused.

which were not supported by any evidence whatever. The rule laid down in Sites v. Haverstick et al., 23 Ohio St. 626, approved and followed in Beecher v. Dunlap et al., 52 Ohio St. 64, 38 N. E. 795, and McAllister v. Hartzell, 60 Ohio St. 69, 53 N. E. 715, clearly This case was submitted upon a demurrer applies and requires an affirmance of the to the petition in mandamus filed in this judgment. Applying that rule to the instant court. case, we hold that where, upon the issues made by several defenses to a claim sued upon, a general verdict is found for the defendant, it not being disclosed by answers to interrogatories or otherwise upon which issue the verdict was based, and the record disclosing no error touching either the presentation or submission of at least one of such issues, a finding upon which in favor of the prevailing party would justify a general judgment, which is rendered, error of the trial court in the submission of other issues will be disregarded.

Judgment affirmed.

NICHOLS, C. J., and JOHNSON, DONAHUE, NEWMAN, and JONES, JJ., concur.

(94 Ohio St. 252)

On the 10th day of December, 1915, in an action pending in the Court of Appeals of Belmont county, on appeal from the court of common pleas, in which Ella L. Galloway and Eva E. Coventry, as administratrices of the estate of Sarah Coventry, deceased, were plaintiffs, and the relator herein, John H. Anderson, was defendant, a judgment was rendered in favor of plaintiffs. On the same day a motion for new trial was overruled. On the 2d day of February, 1916, the relator herein, who was defendant in the case in the Court of Appeals, filed a motion in this court for an order directing the Court of Appeals to certify its record in the case to this court, upon the grounds that the case was one of great general interest and that error had probably intervened. This motion was allowed on the 29th day of February, 1916, and an order was thereupon issued out

STATE ex rel. ANDERSON v. SPENCE et al., of this court, directing the Court of Appeals

Judges. (No. 15197.)

(Supreme Court of Ohio. May 16, 1916.)

(Syllabus by the Court.)

1. EXCEPTIONS, BILL OF 39(1)-TIME FOR FILING-STATUTORY PROVISIONS.

Section 11564, Gen. Code, fixes the time within which a bill of exceptions is to be filed, and its provisions apply to a case tried on appeal in the Court of Appeals, where the record of the court is ordered to be certified to this court upon the grounds that the case is one of public or great general interest and that error has probably intervened.

to certify its record to this court. On the 11th day of March, 1916, a petition in error was filed in this court by the relator herein. Thereafter, on the 21st day of March, 1916, the relator filed in the office of the clerk of the Court of Appeals of Belmont county, a true bill of exceptions in said case of Galloway et al. v. Anderson, and notice of the filing of said bill was given to counsel for plaintiffs in said case. The judges of the Court of Appeals, Hon. W. H. Spence, Hon. John Pollock, and Hon. Willis S. Metcalfe, the defendants herein, although admitting

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 54, 56; Dec. Dig. that said bill of exceptions is true, have re39(1).]

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fused, and still refuse, to allow and sign the same. The relator prays that a writ of mandamus may issue, commanding said defendants to allow and sign said bill.

Fred Spriggs, of Bridgeport and T. C. Ayers, and Kennon & Kennon, all of St. Clairsville, for relator. C. S. Sheppard, of Cambridge, and W. O. Chappell, of Columbus,

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 80, 82; Dec. Dig. for defendants. 53(4).]

(Additional Syllabus by Editorial Staff.) 3. APPEAL AND ERROR 600(2)— RECORD BILL OF EXCEPTIONS-"ORIGINAL PAPER." A bill of exceptions is an "original paper" within Gen. Code, § 12263, providing for the filing with the transcript of "such original papers or transcripts thereof as are necessary to exhibit the error complained of," and it is not necessary that there be a journal entry, ordering it to be made a part of the record, in order to entitle it to be considered by a reviewing court.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 2647; Dec. Dig. 600(2). For other definitions, see Words and Phrases, Original Papers.]

NEWMAN, J. [1] The authority for the filing of a bill of exceptions is found in section 11564, General Code, which is as follows:

"When the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the exception is to the decision of the court on a motion to direct nonsuit, or to arrest the evidence from the jury, or for a new trial for misdirection to the jury, or because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his exceptions to writing, and file them in the cause,

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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In the case under consideration the motion for a new trial was overruled on the 10th day of December, 1915. The bill of exceptions was filed with the clerk of the Court of Appeals on the 21st day of March, 1916, 102 days after the motion for a new trial was overruled. The requirement in section 11564, supra, that:

"The party excepting must reduce his exceptions to writing, and file them in the cause, not later than forty days after the overruling of the motion," is mandatory. Pace v. Volk, 85 Ohio St. 413, 98 N. E. 111.

It was incumbent, therefore, upon the relator, and his imperative duty, according to the provisions of the statute we have quoted, to file his bill not later than 40 days after the overruling of the motion for a new trial, and, not having done so, he could not invoke the aid of the statutes, which provide for the allowance and signing of the bill.

[2, 3] But it is insisted that the order of certification of this court made it mandatory upon the Court of Appeals to allow and sign a bill of exceptions, regardless of the fact that the statutory time for the filing of the same had expired. In cases of public or great general interest where error has probably intervened, the order of this court is that the Court of Appeals certify its record to this court; that is, the record of the Court of Appeals made up according to law. Although the jurisdiction of this court is conferred by the Constitution, yet the method of exercising it may be provided by law. Section 11564, supra, was in force when the constitutional amendments of 1912 became effective, and, not being inconsistent with any of their provisions, has continued in force. It prescribes a mode of procedure as to the taking of exceptions, and fixes the time within which a bill can be filed. The bill becomes an original paper in the case, within the meaning of section 12263, General Code, and it is not necessary that there be a journal entry, ordering such bill to be made a part of the record in order to entitle it to be considered by a a reviewing court. Strauch v. Massillon Stoneware Co., 71 Ohio St. 295, 73 N. E. 211. But before it can become a part of the record of the Court of Appeals as an original paper the statutes must be complied with. Therefore the rule of procedure adopted by the General Assembly controls, and if the aggrieved party has failed to comply with its provisions, this court cannot nullify such rule and grant him relief. The case of City of Akron v. Roth, 88 Ohio St. 456, 103 N. E. 465, is relied on by counsel for relator as an authority in sup

port of his contention that this court may direct the Court of Appeals to allow and sign a bill of exceptions after the order of certification is made, although the statutory time has expired. Under the constitutional provision (Const. art. 4, § 2) the General Assembly is authorized to prescribe a limitation of time for the making of an application for an order of certification. No limitation of time having been prescribed by the General Assembly, a limitation of 70 days was fixed by this court in City of Akron v. Roth, supra. This court took the position that the entire subject seemed to be within its authority to prescribe such rules as are consistent with law for the proper institution of cases here and their conduct before it. But if this court were to permit the aggrieved party to wait until it had passed upon the application for an order of certification before a bill of exceptions is filed in the Court of Appeals, it would be establishing a rule wholly inconsistent with section 11564, which places a limitation of 40 days from the overruling of the motion for a new trial for the filing of the bill.

It is said that in cases like the one under consideration the Court of Appeals is the court of last resort until the granting of the motion by this court for an order of certification, and the Court of Appeals would therefore be justified in refusing to allow and sign a bill until the order of certification is granted, upon the ground that such action was premature and not within its authority. We do not think so. In City of Akron v. Roth, supra, it was held that a showing must be made upon the hearing of the application for an order of certification that the case is one of public or great general interest, and that error has probably intervened. It may be that in some cases the question of probable error suggested in the application for an order of certification can be determined only by an examination of a bill of exceptions to ascertain just what action was taken by the Court of Appeals in reference to the matter complained of. Such a bill may not be necessary where there is no controversy between counsel as to the rulings made by the trial court, but if a difference of opinion should arise this court would, of necessity, be compelled to resort to a bill of exceptions, duly authenticated, to ascertain just what action was taken in the trial of the case.

Our holding is that the filing of a bill of exceptions is controlled by statute, and the relator, not having complied with the same, is not entitled to relief. Writ refused.

NICHOLS, C. J., and JOHNSON, DONAHUE, WANAMAKER, JONES, and MATTHIAS, JJ., concur.

MEMORANDUM DECISIONS

ASPHALT PAVING & CONTRACTING CO., Appellant, v. CITY OF NEW YORK, Respondent. (Court of Appeals of New York. May 30, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (167 App. Div. 925, 152 N. Y. Supp. 1097), entered April 13, 1915, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover under the terms of an asphalt paving contract, made with the Warren-Scharf Asphalt Paving Company, its alleged assignor, which contained a fifteen years' maintenance clause, the percentage of the repairing security, which it is claimed was due August 30, 1908. The complaint was dismissed at the close of the plaintiff's case on the ground that the assignment to the plaintiff by the Warren-Scharf Company, the original contractor, was invalid because it had not been consented to by the borough president, and because it had not been filed in the office of the county clerk of New York county, or of the comptroller, or of the borough president. L. Laflin Kellogg and Alfred C. Petté, both of New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Terence Farley, R. Percy Chittenden, and John F. Collins, all of New York City, of counsel), for respondent.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

BARRETT v. JOHN V. SCHAEFER, JR., & CO. et al. (Court of Appeals of New York. June 16, 1916.)

PER CURIAM. Motion to amend remittitur denied, without costs. See 217 N. Y. 722, 112 N. E. 1054.

In re BELMONT AVE. IN CITY OF NEW YORK. (Court of Appeals of New York. June 16, 1916.) Appeal from an order of the Appellate Division of the Supreme Court in the First Judicial Department (157 N. Y. Supp. 1118), entered February 11, 1916, which affirmed an order of the Special Term denying the motion of Bazena T. D. Merriman for an order directing the comptroller of the city of New York to pay to her $2,044.35 of the award made by the commissioners of estimate and assessment in the above-entitled proceeding, with interest thereon from July 21, 1911. The question involved is whether the holder of a deficiency judgment, obtained as the result of the foreclosure of a mortgage on premises a portion of which had been taken in a condemnation proceeding, is entitled, in the absence of statutory authority, to an order directing the comptroller of the city of New York to pay to such judgment creditor the amount of the deficiency, it appearing that the comptroller had already paid the entire award for the taking of the mortgaged premises to the owner of the equity. George Lawyer, of Albany, and Charles Harwood and Henry T. Randall, both of New York City, for appellant. Lamar Hardy, Corp. Counsel, of New York City (Joel J. Squier and John J. Kearney, both of New York City, of counsel), for respondent.

PER CURIAM. Order affirmed, with costs, without prejudice to the petitioner's remedy by action against the city or against Caroline Wed

WILLARD BARTLETT. C. J., and HISCOCK, CHASE, CUDDEBACK, HOGAN, CARDOZO, and POUND, JJ., concur.

BACON v. SAYRE et al. (Court of Appeals of New York. June 16, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Depart-inger. ment (164 App. Div. 909, 148 N. Y. Supp. 1105), entered July 25, 1914, affirming a judgment in favor of defendants, respondents, entered upon a decision of the court at a Trial Term without a jury in an action to obtain judicial construction of the will of Emma Bacon, deceased, which, after providing that the remainder of her estate should be divided between her children, contained the following disputed clause: "Provided always that in case any of my said children shall die leaving issue surviving them such one's share shall go to such issue, share and share alike. But in case any of my said children shall die without leaving issue surviving, then such deceased one's share shall go to his or her surviving brothers and sisters, share and share alike, and in no event shall the shares of my said daughters, should they die without issue surviving, go to their husbands respectively, but shall go as above indicated to their surviving brothers and sisters as aforesaid indicated." It is claimed by the plaintiff and by the defendant Zartman, as trustee, that the legacies in Emma Bacon's will to her six children were not intended to be absolute gifts. William S. MacDonald, of Seneca Falls, and Charles E. Opdyke, of Waterloo, for plaintiff appellant. George E. Zartman, of Waterloo, for defendant appellant. James S. Havens, of Rochester, and J. Willard Huff. of Waterloo, for respondents.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and SEABURY, JJ., concur.

BLOSSOM, Appellant, v. CHISHOLM et al., Respondents. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (163 App. Div. 948, 148 N. Y. Supp. 1106), entered August 17, 1914, affirming a judgment in favor of defendants entered upon the report of a referee in an action to recover upon a written instrument by the terms of which defendants' testatrix acknowledged her indebtedness to plaintiff in a large sum, appointed him her agent to sell her real estate, and out of any proceeds of sale after the use of so much thereof as may be necessary for satisfying actual legal liens on the property sold, he shall retain in repayment to himself of such my indebtedness to him the whole or such part thereof as to him seems proper, and upon realization of any net proceeds of sale, after satisfaction of all liens and claims, including my said indebtedness to him, such net proceeds shall be disposed one-half thereof to him and the remaining one-half thereof to myself." The referee held that: First. The relations between plaintiff and decedent were such as to cast upon plaintiff the burden of proving that the agreement was fair and just and that decedent fully understood its purport and effect. Second. The plaintiff had failed to sustain this burden of proof. Gustav Lange, Jr., of New York City, for appellant. Joseph H. Choate, Jr., and Her

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BRENNAN, Respondent, v. TRUSTEES OF VILLAGE OF BATH, Appellant. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department (162 App. Div. 932, 147 N. Y. Supp. 1100), entered May 29, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the defendant in failing to properly maintain a sidewalk and barrier on a street adjacent to a millpond. It was claimed that upon the night plaintiff's intestate met his death he stepped into a place in the sidewalk where the top of the bank had crumbled away, slid down into the pond, and was drowned. James McCall, of Bath, for appellant. Warren J. Cheney, of Corning, for respondent.

PER CURIAM. Judgment affirmed, with

costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

BROWN, Respondent, V. PITTSBURG BLDG. CO., Appellant, et al. (Court of Appeals of New York. July 11, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Second Judicial Department (165 App. Div. 931, 150 N. Y. Supp. 1078), entered December 2, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of the defendant, his employer. The complaint alleged that the defendant erected and placed a certain scaffold in and about certain premises in course of construction-of timber, beams, and horses improperly laid and not secured at proper, necessary, and vital parts, and continued: "Disregarding their duty in their behalf the defendants negligently and carelessly erected and placed, or caused to be erected and placed, said improper, unsubstantial and unsafe scaffolding in an improper, faulty, negligent, careless, defective and dangerous manner and not in accordance with the laws of the state of New York and wholly unfit for the use to which it was to be put. It is then alleged that while the decedent was working on said scaffold, it "tipped, slipped and slid so that it became disconnected from its support and fell and thereby caused plaintiff's intestate to fall with it." Alfred E. Holmes and Clayton J. Heermance, both of New York City, for appellant. Rowland Miles, of Northport, and James N. Gehrig, of Manhasset, for respond

ent.

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BRUDIE, Respondent, V. RENAULT FRERES SELLING BRANCH, Inc., Appellant. (Court of Appeals of New York. June 16, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (160 App. Div. 889,

1913, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for the death of plaintiff's intestate alleged to have been occasioned through the negligence of defendant. Plaintiff's intestate, while engaged in the delivery of automobiles at the defendant's place of business, fell into the freight elevator shaft located in defendant's premises, and sustained injuries which resulted in his death. The appellant contends on this appeal that the evidence shows conclusively that the deceased was guilty of negligence which contributed to the accident and that there is no evidence to support the finding of the jury that he was free from contributory negligence and that the verdict is, therefore, contrary to the evidence and contrary to law. See, also, 213 N. Y. 697, 107 N. E. 1074. James I. Cuff, of New York City, for appellant. W. Edgar Weaver, of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and SEABÚRY, JJ., concur.

BRUSH, Respondent, v. NEW YORK, N. H. & H. R. CO. et al., Appellants. (Court of Appeals of New York. June 16, 1916.) Motion to amend remittitur. See 218 N. Y. 264, 112 N. E. 922.

PER CURIAM. Motion granted, and judgment modified, by adding to the paragraph of said judgment marked "Second," the following: "Nor shall said injunction be at all operative if within 90 days from the service upon the defendants, appellants, of a copy of the order of the Supreme Court making the judgment of this court the judgment of the Supreme Court, the defendant, appellant, the city of New York, shall apply to the Public Service Commission of the First District for a determination as to the manner and method by which the said Baychester avenue shall cross the tracks of the defendant, appellant, the New York, New Haven & Hartford Railroad Company, pursuant to the provisions of section 90 of the Railroad Law (Consol. Laws, c. 49), and that upon such application being made said injunction shall not be operative for a period of 90 days after the final determination of the said application by the Public Service Commission; and that upon the compliance by the said defendants, appellants, with the determination of the said Public Service Commission, then and in that case and from that time the laying out and establishment of the grades and the proceedings for the acquisition of the title to said Baychester avenue, and the construction, erection and maintenance of the crossing of the railroad tracks at Baychester avenue shall be legal and valid as to the plaintiff and none of the provisions of the said injunction shall continue, but the same shall be deemed vacated."

BROOKLYN HEIGHTS R. CO. et al., AppelCITY OF NEW YORK, Respondent, v. lants. (Court of Appeals of New York. June 16, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the First Judicial Department (168 App. Div. 904, 152 N. Y. Supp. 1104), entered April 21, 1915, which affirmed a judgment of Special Term sustaining a demurrer to the answers in an action to recover the cost of paving that part of Flatbush avenue between the tracks of the railroad and two feet on each side thereof, under chapter 254 of the Laws of 1884, which is section 178 of the present Railroad Law (Consol. Laws, c. 49). Charles A. Collin, of New York City, and C. L. Woody and George D. Yeomans, both of

Counsel, of New York City (Terence Farley, of New York City, of counsel), for respondent.

PER CURIAM. Appeal dismissed, with costs, on the ground that an interlocutory judgment is not directly reviewable by this court.

WILLARD BARTLETT, C. J., and HISCOCK, CHASE, HOGAN, CARDOZO, and SEABURY, JJ., concur. COLLIN, J., not sitting.

CITY OF NEW YORK, Appellant, v. CONTINENTAL ASPHALT PAVING CO. et al., Respondents. (Court of Appeals of New York. May 30, 1916.) Appeal from a judgment, entered August 3, 1914, upon an order of the Appellate Division of the Supreme Court in the First Judicial Department (163 App. Div. 486, 148 N. Y. Supp. 436), reversing a judgment in favor of plaintiff entered upon a verdict directed by the court and directing a dismissal of the complaint in an action to recover damages for failure on the part of defendants during the year 1909 to comply with notices directing them to make repairs to an asphalt pavement which they were required to maintain for five years after completion of a paving contract. Defendants answered that on October 1, 1903, there remained to be performed only a small portion of the work, which the contractor was unable to perform owing to the wrongful acts of the city in failing to give to the contractor possession of the entire site of the work, and which was nec essary to completely perform the same, and that from October 1, 1903, to January, 1909, a period of more than five years after the substantial completion of the contract, the contractor was compelled to and did maintain said pavement in repair. Lamar Hardy, Corp. Counsel, of New York City (Terence Farley and E. Crosby Kindleberger, both of New York City, of counsel), for appellant; L. Laflin Kellogg and Alfred C. Petté, both of New York City, for respondents.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, SEABURY, and POUND, JJ., concur.

CLEMENT et al. v. SARATOGA HOLDING CO. et al. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Third Judicial Department (163 App. Div. 927, 147 N. Y. Supp. 1104), entered June 30, 1914, modifying, and affirming as modified, interlocutory and final judgments entered upon the report of a referee in an action of partition. The action was brought to partition the Congress Hall property situated at Saratoga Springs, N. Y. The complaint alleged that plaintiffs and defendant Saratoga Holding Company are each the owners of an undivided one-half interest in this property and that defendant Empire Trust Company is trustee of a mortgage, executed by Saratoga Holding Company for the benefit of the holders of bonds secured by said mortgage, which is a lien on Saratoga Holding Company's half interest in this property. This mortgage was given to secure an issue of bonds of the par value of $200,000. Of these bonds only $75,000 were issued and certified by the trustee. At the time of the trial $10,000 of these bonds were owned by Dupre-Bennett Company, $25,000 by Illinois Surety Company, $39,000 by Carlene A. Way, and $1,000 by Joseph A. Goulden & Son. Subsequent to the commencement of this action defendant Saratoga Holding Company went into bankruptcy and William J. Delaney, its receiver, was made a defendant in the action. Harry N. Wessel, Edward Herrmann, George D. Zahm, and Burt D. Whedon, all of New York City, for appellants. Harold H. Corbin, Walter P. Butler, and Charles L. Hoey, all of Saratoga

Springs, and David J. Gallert and Walter S. Heilborn, both of New York City, for respondent.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and CHASE, COLLIN, CUDDEBACK, CARDOZO, SEABURY, and POUND, JJ., concur.

CLEMENT et al. v. SARATOGA HOLDING CO. et al. (Court of Appeals of New York. June 16, 1916.)

PER CURIAM. Motions to amend remittitur and for reargument denied, without costs. See 218 N. Y., 113 N. E. 1052.

COLARRISI, Respondent, V.

POTATO

CREEK R. CO., Appellant. (Court of Appeals of New York. May 23, 1916.) Appeal from a judgment of the Appellate Division of the Supreme Court in the Fourth Judicial Department 163 App. Div. 932, 147 N. Y. Supp. 1104), entered May 16, 1914, affirming a judgment in favor of plaintiff entered upon a verdict in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant, his employer. The complaint alleged the incorporation of the defendant under the laws of the state of Pennsylvania and the laws of that state with respect to the liability of an employer for personal injuries to an employé: that on October 3, 1912, plaintiff was in the employ of the defendant at Norwich in that state; that while so engaged he and a coemployé were directed by their foreman to assist the defendant's station agent in unloading and moving a piano from one of its cars; that thereupon under the control, direction and authority of said agent they proceeded and attempted to unload and move the piano; that while so engaged and without any negligence on his part contributing thereto the piano fell over and upon plaintiff, seriously and permanently injuring him; that such injuries were caused by the neglect of the defendant to adopt a proper method for unloading and moving said piano, to provide sufficient and proper coemployés, tools, instruments and appliances therefor, and to instruct plaintiff and his coemployés as to the proper method of unloading and moving the piano. Defendant, in addition to a denial, alleged that the law of the state of Pennsylvania, supplementary to the law alleged in the complaint, provides that "where the only negligence involved is in the manner in which an order, rule or instruction, properly given, is executed by the servants to whom it is given," the statute has no application, and then alleges that this accident occurred by reason of the failure of a servant to properly carry out an instruction properly given. Frank Gibbons, of Buffalo, for appellant. Walter W. Chamberlain and Eugene M. Bartlett, both of Buffalo, for respondent.

PER CURIAM. Judgment affirmed, with costs.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN, and SEABURY, JJ., concur. POUND, J., not sitting.

York. June 16, 1916.)
In re CRAIG. (Court of Appeals of New

PER CURIAM. Motion for reargument denied, without prejudice to the rights of the appellant to move to have the remittitur recalled to this court, and for leave to apply to the Appellate Division to have the order appealed from resettled so as to give this court jurisdiction. See 218 N. Y. -, 112 N. E. 1056.

SAUL, Respondent, v. BARSE, Appellant. (Court of Appeals of New York. June 13, 1916.)

PER CURIAM. Motion for reargument denied, with $10 costs. Motion to amend remittitur granted, and remittitur amended by add

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