Sidebilder
PDF
ePub

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 applies and requires an affirmance of the judgment. Applying that rule to the instant 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.

[merged small][merged small][merged small][merged small][merged small][merged small][merged small][ocr errors][merged small]

3. APPEAL AND ERROR 3-600(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. 3-600(2).

For other definitions, see Words and Phrases, Original Papers.]

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.

This case was submitted upon a demurrer to the petition in mandamus filed in this Court.

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 of this court, directing the Court of Appeals 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 that said bill of exceptions is true, have refused, 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, for defendants.

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,

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

not later than forty days after the overruling of port of his contention that this court may dithe motion for a new trial, or the decision of the rect the Court of Appeals to allow and sign court, when the motion for a new trial is not a bill of exceptions after the order of certifiled."

fication is made, although the statutory time In the case under consideration the mo has expired. Under the constitutional protion for a new trial was overruled on the vision (Const. art. 4, § 2) the General Assem10th day of December, 1915. The bill of bly is authorized to prescribe a limitation exceptions was filed with the clerk of the of time for the making of an application for Court of Appeals on the 21st day of March, an order of certification. No limitation of 1916, 102 days after the motion for a new time having been prescribed by the General trial was overruled. The requirement in Assembly, a limitation of 70 days was fixed section 11564, supra, that:

by this court in City of Akron v. Roth, su"The party excepting must reduce his excep-pra. This court took the position that the tions to writing, and file them in the cause, not entire subject seemed to be within its aulater than forty days after the overruling of the thority to prescribe such rules as are

is 85 conSt. 413, 98 N. E. 111.

sistent with law for the proper institution

of cases here and their conduct before it. It was incumbent, therefore, upon the re- But if this court were to permit the aggrievlator, and his imperative duty, according ed party to wait until it had passed upon the to the provisions of the statute we have quot-application for an order of certification beed, to file his bill not later than 40 days aft- fore a bill of exceptions is filed in the Court er the overruling of the motion for a new of Appeals, it would be establishing a rule trial, and, not having done so, he could not wholly inconsistent with section 11564, which invoke the aid of the statutes, which provide places a limitation of 40 days from the overfor the allowance and signing of the bill. ruling of the motion for a new trial for the

[2, 3] But it is insisted that the order of filing of the bill. certification of this court made it mandatory It is said that in cases like the one under upon the Court of Appeals to allow and sign consideration the Court of Appeals is the a bill of exceptions, regardless of the fact court of last resort until the granting of the that the statutory time for the filing of the motion by this court for an order of certifisame had expired. In cases of public or cation, and the Court of Appeals would theregreat general interest where error has prob- fore be justified in refusing to allow and sign ably intervened, the order of this court is a bill until the order of certification is grantthat the Court of Appeals certify its record ed, upon the ground that such action was to this court; that is, the record of the Court premature and not within its authority. We of Appeals made up according to law. Al- do not think so. In City of Akron v. Roth, though the jurisdiction of this court is con- supra, it was held that a showing must be ferred by the Constitution, yet the method of made upon the hearing of the application for exercising it may be provided by law. Sec- an order of certification that the case is one tion 11564, supra, was in force when the of public or great general interest, and that constitutional amendments of 1912 became error has probably intervened. It may be effective, and, not being inconsistent with that in some cases the question of probable any of their provisions, has continued in error suggested in the application for an orforce. It prescribes a mode of procedure as der of certification can be determined only

he taking of exceptions, and fixes the by an examination of a bill of exceptions to time within which a bill can be filed. The ascertain just what action was taken by the bill becomes an original paper in the case, Court of Appeals in reference to the matter within the meaning of section 12263, General complained of. Such a bill may not be necCode, and it is not necessary that there be essary where there is no controversy bea journal entry, ordering such bill to be made tween counsel as to the rulings made by the a part of the record in order to entitle it trial court, but if a difference of opinion to be considered by a reviewing court. should arise this court would, of necessity, Strauch v. Massillon Stoneware Co., 71 Ohio be compelled to resort to a bill of exceptions, St. 295, 73 N. E. 211. But before it can be duly authenticated, to ascertain just what come a part of the record of the Court of action was taken in the trial of the case. Appeals as an original paper the statutes Our holding is that the filing of a bill of must be complied with. Therefore the rule exceptions is controlled by statute, and the of procedure adopted by the General Assem- relator, not having complied with the same', bly controls, and if the aggrieved party has is not entitled to relief. failed to comply with its provisions, this Writ refused. court cannot nullify such rule and grant him relief. The case of City of Akron v. Roth, 88 NICHOLS, O. J., and JOHNSON, DONAOhio St. 456, 103 N. E. 465, is relied on by HUE, WANAMAKER, JONES, and MATcounsel for relator as an authority in sup- THIAS, JJ., concur.

MEMORANDUM DECISIONS

ASPHALT PAVING & CONTRACTING BARRETT V. JOHN V. SCHAEFER, JR., CO., Appellant, v. CITY OF NEW YORK, Re- & CO. et al. (Court of Appeals of New York. spondent. (Court of Appeals of New York. June 16, 1916.) May 30, 1916.) Appeal from a judgment of the PER CURIAM. Motion to amend remittitur Appellate Division of the Supreme Court in the denied, without costs. See 217 N. Y. 722, 112 First Judicial Department (167 App. Div. 925, N. E. 1054. 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 In re BELMONT AVE. IN CITY OF NEW court at a Trial Term in an action to recover YORK. (Court of Appeals of New York. June under the terms of an asphalt paving contract, 16, 1916.) Appeal from an order of the Appelmade with the Warren-Scharf Asphalt Paving late Division of the Supreme Court in the First Company, its alleged assignor, which contained | Judicial Department (157 N. Y. Supp. 1118), a fifteen years' maintenance clause, the per- entered February 11, 1916, which affirmed an centage of the repairing security, which it is order of the Special Term denying the motion claimed was due August 30, 1908. The com- of Bazena T. D. Merriman for an order directplaint was dismissed at the close of the plain- ing the comptroller of the city of New York to tiff's case on the ground that the assignment to pay to her $2,044.35 of the award made by the the plaintiff by the Warren-Scharf Company, commissioners of estimate and assessment in the the original contractor, was invalid because it above-entitled proceeding, with interest thereon had not been consented to by the borough presi- from July 21, 1911. The question involved is dent, and because it had not been filed in the whether the holder of a deficiency judgment, oboffice of the county clerk of New York county, tained as the result of the foreclosure of a mortor of the comptroller, or of the borough presi- gage on premises a portion of which had been dent. L. Laflin Kellogg and Alfred č. Petté, taken in a condemnation proceeding, is entitled, both of New York City, for appellant. Lamar in the absence of statutory authority, to an orHardy, Corp. Counsel, of New York City (Ter- der directing the comptroller of the city of New ence Farley, R. Percy Chittenden, and John F. York to pay to such judgment creditor the Collins, all of New York City, of counsel), for amount of the deficiency, it appearing that the respondent.

comptroller had already paid the entire award PER CURIAM. Judgment affirmed, with for the taking of the mortgaged premises to the costs.

owner of the equity. George Lawyer, of AlWILLARD BARTLETT, C. J., and HIS-bany, and Charles Harwood and Henry T. RanCOCK, COLLIN, CUDDÈBACK, HOGAN, dall, both of New York City, for appellant. SEABURY, and POUND, JJ., concur.

Lamar Hardy, Corp. Counsel, of New York City (Joel J. Squier and John J. Kearney, both of

New York City, of counsel), for respondent. BACON V. SAYRE et al. (Court of Appeals PER CURIAM. Order affirmed, with costs, of New York. June 16, 1916.). Appeal from a without prejudice to the petitioner's remedy by judgment of the Appellate Division of the Su-action against the city or against Caroline Wedpreme Court in the Fourth Judicial Depart- inger. ment (164 App. Div. 909, 148 N. Y. Supp. 1105), WILLARD BARTLETT. C. J., and HISentered July 25, 1914, affirming a judgment in COCK, CHASE, CUDDEBACK, HOGAN, favor of defendants, respondents, entered upon CARDOZO, and POUND, JJ., concur. a decision of the court at a Trial Term without a jury in an action to obtain judicial construc

BLOSSOM, Appellant, v. CHISHOLM et al., tion of the will of Emma Bacon, deceased, which, Respondents.' (Court of Appeals of New York. after providing that the remainder of ber es- May 23, 1916.) Appeal from a judgment of the tate should be divided between her children, con- Appellate Division of the Supreme Court in the tained the following disputed clause: "Provided First Judicial Department (163 App. Div. 948, always that in case any of my said children shall 148 N. Y. Supp. 1106), entered August 17, 1914, die leaving issue surviving them such one's share affirming a judgment in favor of defendants enshall go to such issue, share and share alike. tered upon the report of a referee in an action But in case any of my said children shall die to recover upon a written instrument by the without leaving issue surviving, then such de- terms of which defendants' testatrix acknowlceased one's share shall go to his or her surviv-edged her indebtedness to plaintiff in a large ing brothers and sisters, share and share alike, sum, appointed him her agent to sell her real and in no event shall the shares of my said estate, and out of any proceeds of sale after daughters, should they die without issue sur: the use of so much thereof as may be necessary viving, go to their husbands respectively, but for satisfying actual legal liens on the property shall go as above indicated to their surviving sold, he shall retain in repayment to himself of brothers and sisters as aforesaid indicated.". It such my indebtedness to him the whole or such is claimed the plaintiff and the defendant part thereof to him seems properand upon Zartman, as trustee, that the legacies in Emma realization of any net proceeds of sale, after Bacon's will to her six children were not intend- satisfaction of all liens and claims, including ed to be absolute gifts. William S. MacDonald, my said indebtedness to him, such net proceeds of Seneca Falls, and Charles E. Opdyke, of Wa- shall be disposed one-half thereof to him and the terloo, for plaintiff appellant. George E. Zart- remaining one-half thereof to myself.” The refman, of Waterloo, for defendant appellant. eree held that: First. The relations between James S. Havens, of Rochester, and J. Willard plaintiff and decedent were such as to cast upon Huff, of Waterloo, for respondents.

plaintiff the burden of proving that the agreePER CURIAM. Judgment affirmed, with ment was fair and just and that decedent fully costs.

understood its purport and effect. Second, The WILLARD BARTLETT, C. J.and HIS- plaintiff had failed to sustain this burden of COCK, CHASE, COLLIN, HOGAN, CARDO-proof. Gustav Lange, Jr., of New York City, ZO, and SEABURY, JJ., concur.

for appellant. Joseph H, Choate, Jr., and Her

V.

bert-B. Smith, both of New York City, for re-, 1913, affirming a judgment in favor of plaintiff spondents.

entered upon a verdict in an action to recover PER CURIAM. Judgment affirmed, with for the death of plaintiff's intestate alleged to costs.

have been occasioned through the negligence of WILLARD BARTLETT, C. J., and CHASE, defendant. Plaintiff's intestate, while engaged COLLIN, CUDDEBACK,' CARDOZO, SEAP in the delivery of automobiles at the defendant's BURY, and POUND, JJ., concur.

place of business, fell into the freight elevator shaft located in defendant's premises, and sus

tained injuries which resulted in his death. The BRENNAN, Respondent, v. TRUSTEES OFdence shows conclusively that the deceased was

appellant contends on this appeal that the eyiVILLAGE OF BATH, Appellant. (Court of guilty of negligence which contributed to the acAppeals of New York. July 11, 1916.). . Ap- cident and that there is no evidence to support peal from a judgment of the Appellate Division the finding of the jury that he was free from of the Supreme Court in the Fourth Judicial contributory negligence and that the verdict is, Department (162 App. Div. 932, 147 N. Y. Supp. therefore, contrary to the evidence and contrary 1100), entered May 29, 1914, affirming a judg- to law. See, also, 213 N. Y. 697, 107 N. E. ment in favor of plaintiff entered upon a ver-1074. James I. Cuff, of New York City, for apdict in an action to recover for the death of pellant. W. Edgar Weaver, of New York City, plaintiff's intestate alleged to have been occa- for respondent. sioned through the negligence of the defendant in failing to properly maintain a sidewalk and

PER CURIAM. Judgment affirmed, with barrier on a street adjacent to a millpond. It costs. was claimed that upon the night plaintiff's in WILLARD BARTLETT, C. J., and HIStestate met his death he stepped into a place in COCK, CHASE, COLLIN, 'HOGAN, CARDOthe sidewalk where the top of the bank had zo, and SEABÚRY, JJ., concur. crumbled away, slid down into the pond, and was drowned. James McCall, of Bath, for appellant. Warren J. Cheney, of Corning, for respondent.

BRUSH, Respondent, v. NEW YORK, N. H. PER CURIAM. Judgment affirmed, with & H. R. CO., et al., Appellants. (Court of Apcosts.

peals of New York. June 16, 1916.) Motion WILLARD BARTLETT, C. J., and HIS- to amend remittitur. See 218 N. Y. 264, 112 COCK, COLLIN, CUDDÈBÄCK, HOGAN, N. E. 922. SEABURY, and POUND, JJ., concur.

PER CURIAM. Motion granted, and judge ment modified, by adding to the paragraph of

said judgment marked "Second," the followBROWN, Respondent,

PITTSBURGing: "Nor shall said injunction be at all opBLDG. CO., Appellant, et al. (Court of Ap-erative if within 90 days from the service upon peals of New York. July 11, 1916.). Appeal the defendants, appellants, of a copy of the orfrom a judgment of the Appellate Division of der of the Supreme Court making the judgment the Supreme Court in the Second Judicial De- of this court the judgment of the Supreme partment (165 App. Div. 931, 150 N. Y. Supp. Court, the defendant, appellant, the city of New 1078), entered December 2, '1914, affirming a York, shall apply to the Public Service Comjudgment in favor of plaintiff entered upon a mission of the First District for a determination verdict in an action to recover for the death of as to the manner and method by which the said plaintiff's intestate alleged to have been occa- Baychester avenue shall cross the tracks of the sioned through the negligence of the defendant, defendant, appellant, the New York, New his employer. The complaint alleged that the Haven & Hartford Railroad Company, pursuant defendant erected and placed a certain scaffold to the provisions of section 90 of the Railroad in and about certain premises in course of con- Law. (Consol. Laws, c. 49), and that upon such struction-of timber, beams, and horses im- application being made said injunction shall not properly laid and not secured at proper, neces- be operative for a period of 90 days after the sary, and vital parts, and continued: "Disre- final determination of the said application by garding their duty in their behalf the defend the Public Service Commission; and that upon ants negligently and carelessly erected and plac- the compliance by the said defendants, appeled, or caused to be erected and placed, said im-lants, with the determination of the said Public proper, unsubstantial and unsafe scaffolding in Service Commission, then and in that case and an improper, faulty, negligent, careless, defec- from that time the laying out and establishment tive and dangerous manner and not in accord of the grades and the proceedings for the acance with the laws of the state of New York and quisition of the title

to said Baychester avenue, wholly unfit for the use to which it was to be and the construction, erection and maintenance put.” It is then alleged that while the decedent of the crossing of the railroad tracks at Baywas working on said scaffold, it "tipped, slipped chester avenue shall be legal and valid as to the and slid so that it became disconnected from its plaintiff and none of the provisions of the said support and fell and thereby caused plaintiff's injunction shall continue, but the same shall be intestate to fall with it.” Alfred E. Holmes and deemed vacated." Clayton J. Heermance, both of New York City, for appellant. Rowland Miles, of Northport, and James N. Gehrig, of Manhasset, for respond-BROOKLYN HEIGHTS R. 'Co. et al., Appel.

CITY OF NEW YORK, Respondent, v. ent.

lants. (Court of Appeals of New York. June PER CURIAM. Judgment affirmed, with 16, 1916.) Appeal from a judgment of the Ap. costs.

pellate Division of the Supreme Court in the CHASE, COLLIN, HOGAN, CARDOZO, and First Judicial Department (168 App. Div. 904, SEABURY, JJ., concur. WILLARD BART-152 N. Y. Supp. 1104), entered April 21, 1915, LETT, C. J., and CUDDEBACK, J., dissent.

which affirmed a judgment of Special Term sus

taining a demurrer to the answers in an action BRUDIE, Respondent,

RENAULT

to recover the cost of paving that part of FlatFRÈRES SELLING BRANCH, Inc., Appel- and two feet on each side thereof, under chapter

bush avenue between the tracks of the railroad lant. (Court of Appeals of New York. June 254 of the Laws of 1884, which is section 178 16, 1916.) Appeal from a judgment of the Ap- of the present Railroad Law (Consol. Laws, c. pellate Division of the Supreme Court in the 49). Charles A. Collin, of New York City, and First Judicial Department (160 App. Div. 889, C. L. Woody and George D. Yeomans, both of 144 N. Y. Supp. 1107), entered December 24, Brooklyn, for appellants. Lamar Hardy, Corp.

[blocks in formation]

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 necessary 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, J.J., 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 Esolding 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 respond-
ent.
PER CURIAM.
COStS.
WILLARD BARTLETT, C. J., and CHASE,
COLLIN, CUDDEBACK, CARDOZO, SEA-
BURY, and POUND, J.J., 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 CURLAM. Judgment affirmed, with COStS.

WILLARD BARTLETT, C. J., and HISCOCK, COLLIN, CUDDEBACK, HOGAN,

Judgment affirmed, with

and SEABURY, J.J., concur. POUND, J., not sitting. In re CRAIG. (Court of Appeals of New

York. June 16, 1916.) 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

« ForrigeFortsett »